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The Bill of Lading

The international trade involving goods transport by sea couldn’t have

been existed without the transport documents, the most important of them
being the bill of lading. The bill of lading represents a recognition of the
goods received by the carrier and an evidence of the contract of the transport
by sea, but mostly represents a warehouse receipt of the transported goods.
The first chapter “Overview on Trade Securities” is structured in three
sections.
In the first section (What are securities?) there are presented the
differences between payment and credit instruments, between civil and
commercial proof of debts and, the characteristic features of securities as well
as their evolution from the legal point of view. A payment instrument is a
mechanism assuring the fulfillment of a payment obligation. A credit
instrument is a mechanism which postpones in time the payment of a debt,
assures the mobility of the credit and gives the opportunity to the owner to
acquire a security in order to assure the debt fulfillment at the due date.
Securities are documents consisting in commercial debts which postpone in
time the debt payment and can circulate easily being negotiable. Security
possession is needed to exercise the right arising from the ascertained credit
operation and to have been invested with this right any other person obtaining
it. Unlike the civil proofs of debts the trade securities of debts present some
features arising from the necessity of assuring the stability of the credit, to
facilitate the circulation of these titles and avoiding the displacement of goods
and money. Credit securities are negotiable and, circulating from the legal
point of view, by a simplified procedure avoiding the formalism of the
cession of the civil law. If in the civil law, the legal position can be separated
from the document which establishes it, in the case of the credit proofs of
debts there is a connection between law and document so that the law can’t be
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pleaded and fulfilled but only by the person having a certain connection with
the document. The document giving expression to credit proof of debt has a
constitutive character, meaning the right it includes is incorporated in the title
and it doesn’t exist without it. Also, the credit proofs of debts are formal,
literal and autonomous.
The classification of the trade securities in terms of circulation and
their content is presented in the second section. The negotiable notes have
been created and have been improved in order to facilitate debts circulation,
being due to their form an excellent circulation instrument. Their form
determines their circulation way and from this point of view we can sort them
in negotiable bearer notes, certificates to order and registered notes.
According to the features of their provision or their content, the credit proofs
of debts can be sorted in proper proofs of debts (bill of exchange, promissory
note, check), warehouse receipts (bills of lading, warrant receipts and
warehouse warrant) and equity interests. There are also acts or documents
called unsuitable credit proofs of debts, either by their aspect either their
external structure or by their circulation way, they have some proper,
derogatory features which don’t allow them to be considered credit proofs of
debts. There are so called unsuitable titles, the identification documents and
apparent titles.
The bill of lading has been assimilated generally to the commercial
document, and especially to the bill of exchange. The similitude and
distinctions between the bill of exchange and the bill of lading are presented
in the last section of this chapter.
The bill of exchange can be transmitted by a simple and specific
method called endorsement which gives autonomous and abstract rights,
transferring to the endorser the property of the title with all its intrinsic rights.
The possibility of endorsing the bill of exchange results even from the
character of this title which can be issued as non - transferable by
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endorsement with not to order provision included.. The transfer modality of

the bills of lading to order is similar to that of transmitting the bill of
exchange but in order to be considered a title to order to be transmitted by
endorsement it should include deliberately the clause to order. The possibility
of circulation by endorsement of the bill of lading doesn’t assimilate it totally
with a real title to order defined mainly by its abstract feature, detached from
the reason element. So the bill of lading presents this special feature only
when it is to order. In order to use it, the owner of the bill of lading, similar to
the owner of the bill of exchange has to identify himself by a continuous
series of endorsements. As a result, when the bill of lading is to order, the
endorsement of the document follows the rules and develops the effects of the
endorsement of a commercial document.
The bill of exchange is a literal title, meaning is has value even by its
presence. The bill of lading is also a literal title. Issued and signed by a carrier
gives him the quality of a debtor for the obligations included into the title.
But, the bill of exchange is a complete proof of debts, meaning its content
can’t be completed with other documents and the signatory can not oppose to
the person who obtained the bill of exchange with sole exceptions resulting
form its content. As regards the bill of lading, the situation is different,
according to the conditions of the transport contract included totally or
partially in it. Therefore, when the bill of lading mentions deliberately the
chartering contract, other exceptions resulting from this one can be opposed
to the person who obtains the right.
As regards bill of exchange, in case that payment at due date is refused
to the possessor he has the right of recess against any of the signatories
unlike, those who endorse a bill of lading and don’t pledge themselves
personally in front of the next possessor, they are not guarantors, that
meaning the legitimate owner of the bill of lading would not be able to lay a
claim to any signatories the fulfillment of the carrier obligation.
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From the point of view of the content, the bill of exchange is included
in the category of commercial documents, respectively of those documents
which give to the legitimate owners the right of payment of a certain amount
of money, expressing in money the value they included. According to its
functions the bill of lading belongs to another category , the one of
warehouse receipts, defined as documents which gives the right on certain
goods located in certain warehouses or loaded on board of the ship with the
purpose of transportation and allows the taking over of the object mentioned
in the title.
The right of the bill of exchange holder is totally autonomous as
concerns the fundamental report. The situation is different for the bill of
lading, which, usually is a causal title.
Chapter II, The Bill of Lading-loading bill includes ten sections, as
follows:
• In the first section is presented the historical evolution of the bill of
lading. At the beginning of its existence the bill of lading represented only a
receipt issued by the carrier (transporter), not negotiable and making evidence
that the goods it described in it have been loaded or have been delivered in
order to be loaded on a certain ship, with a certain destination. Gradually the
bill of lading has begun to include also, terms of the sea transportation
contract, and when the necessity of legal mechanism was felt by which to be
fulfilled order documents upon the goods before these ones to reach the
destination, the bill of lading acquired the feature of a warehouse receipt;
• The recognition of the bill of lading in the municipal law (section 2).
On the internal level the bill of lading is settled by the Code of Mercantile
Law and in the Romanian uniform regulations (The United Nations
Convention concerning the goods transportation by sea, 1978, known as
Hamburg Rules).Among these there are differences in settlement referring
mainly to the content of the bill of lading content, reason for which this study
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is based in the main on the provisions settled by Hamburg Rules and only as
completion and to compare we refer to the provisions in Code of Mercantile
Law and of the other international regulations ;
• The parties involved in concluding the bill of lading (section 3),
meaning the carrier, the loader and the recipient. According to Hamburg
Rules: carrier is any person which or in whose name a contract of goods
transport by sea was concluded with a loader; loader means any person by
who or in whose name or of whose authorization a contract of goods
transport by sea was concluded with the carrier; this contract includes any
person to whom or on whose name or by his authorization the goods are
effectively delivered to the carrier in connection with the contract of goods
transportation by sea; recipient being the entitled person to take the goods;
• The role and the importance of the bill of lading for the goods sea
transport and for the international trade is based on the functions this one has
(section 4)
The first function of the bill of lading is that of a receipt for the delivered
goods, containing in the same time also some details about the quantity and
the quality of the loaded or delivered to be loaded goods. The bill of lading
can’t continue to be only a receipt to recognize the delivered goods. In this
case, even it contains all the details asked by law, it wouldn’t be able to prove
totally the conditions of transport. This is the reason for which, overleaf the
bill of lading there are printed the general conditions based on which the
transport will be done. Hence the second function of the bill of lading
meaning the proof of the previous contract between the carrier and the loader.
Any other document which identifies enough the goods and which contains
the transport clauses and the conditions could fulfill the first two functions of
the bill of lading. Instead, this document would not be able to represent the
goods only as far as its transmission will be equivalent with the writ of
possession of the recipient by the mediated way of possessing the goods by
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the captain. As a result, the bill of lading has a much more important role,
representing exactly the goods to be transported. The bill of lading represents
a negotiable note, a credit proof representing the goods and having the role to
facilitate the sale or the pledging of the goods along the travel, without being
delivered effectively.
• The legal aspect of the bill of lading. The warehouse receipt
Bill of lading of the transported goods (section 5). Without denying its
probation function, the bill of lading is fundamentally a title, it represents the
described goods in it, the regime of its transfer between persons is the
common regime of titles, and the rights arising from it are literal and
autonomous.
• The content of the bill of lading (section 6) is determined by the
Legislation of different states, the differences being rather rare and this due
on one hand to some standard blanks, and on the other hand to the uniform
regulations in the field. According to Hamburg Rules the bill of lading should
contain: details about the goods; details about the voyage (the loading port,
the destination port and the identification of the ship making the voyage); the
date or the delivery term of the goods delivery in the destination port; details
about the freight; a note resulting of which the transport is submitted to
Hamburg Rules; number of original samples; the carrier’s or his
representative signature. Beside the obligatory notes, the bill of lading can
also contain some special clauses, referring either to the situation of the
loaded or taken to be loaded goods (quantity and quality reserves), either to
the ways of transport. The main effect of these notes, called reserves is the
change of the bill of lading from a clean bill of lading in an unclean bill of
lading. But for a loader is an advantage to get a clean bill of lading, without
reserves, which will prove the goods has been loaded in a good condition.
Otherwise, the notes mentioned in the bill of lading can have an influence on
its quality of a payment document. This is the reason for the carriers don’t
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accept notes in the bill of lading; quite often the carrier is asked to issue a
clean bill of lading in exchange of a guarantee. As concerning the possibility
of issuing the letter of guarantee, Hamburg Rules stipulate that any agreement
by which the loader pledges himself to indemnify the carrier for any loss
result of issuing by the carrier of a clean bill of lading regarding the notes of
the loader to be included in the bill of lading or regarding the apparent goods
condition is null and without any effects to any other third party, including a
recipient to which the bill of lading was transmitted;
• Types of bills of lading (section 7). The main classification of the bills
of lading is mentioned in Hamburg Rules which from the point of view of the
person entitled to take the goods in the destination port settle between
nominative, to order and to bearer. From the point of view of goods delivery,
the issued bill of lading can be loaded on board or a bill of lading bearing the
note received the goods to be loaded, the difference being that the latest don’t
prove the goods has been shipped but only has been delivered for this
purpose. The bill of lading issued in exchange of the loaded goods should be
a clean bill of lading. If the bill of lading includes notes about the inadequate
condition of the goods or of the package, the issued bill of lading would be
unclean, the situation would have an influence upon its quality as a payment
document. The goods can be transported to the destination on one ship or
many ships having different ship-owners or by various means of
transportation of which at least one is by sea. From this point of view, the
bills of lading can be: through bills of lading, delivery order or bill signed
under protest.
The development of the sea transport by containers imposed the
necessity of some changes in the feature of documents on account of the
participation of many carriers to the transport. Under these circumstances the
chosen solution was either to issue a through bill of lading or a multimodal or
combined bill of lading, if the transport supposes to use different means of
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transport. This because the reason of the using containers is based on door to
door transport, directly from the producer to customer using only one
transport document. Of course, the combined transports don’t include
necessarily using containers, but the development of containers usage
increased significantly their importance.
The existence of different carriers involves first difficulties concerning
the settlement of the responsibilities for losses and damages of the goods
transported in containers. The identification of the responsible carrier means
to determine the moment when the goods were damaged. The usage of
containers increases this difficulty because the containers generally are not
opened before the destination. So that, if the responsibility can’t be located, it
is often chosen the solution as every carrier in the transport activity to
contribute to indemnify proportionally with the received sum of money. The
second difficulty is connected with the transport documents they use.
Generally, it is considered not to be suitable to exist separate documents for
every stage of what we call a combined transport. If it would go on like this,
the documents issued this way couldn’t have been negotiated up to the
transport final stage. In this case it is considered to be ideal the first carrier
who sign and issue the bill of lading to answer for the whole operation. This
solution is stipulated in Hamburg Rules which settle carrier’s responsibility
including the stage of transport fulfilled actually by the carrier.
Also in the sea practice there are also used standard bills of lading
issued by the international delivery companies FIATA, the line standard bills
of lading issued and approved by BIMCO, the bills of lading used for the
goods transportation in containers, the electronic bills of lading and house
bills of lading;
• Few procedural aspects concerning the concluding and the fulfillment of
the contract of goods transport by sea based on bill of lading (section 8)
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The correlation between letter of credit and bill of lading. The bill of
lading, warehouse receipt represents a payment document, getting this feature
due to the clause “payment document” or “acceptance document” mentioned
in the international sale contract. The letter of credit being an independent
transaction, separated from other contracts is based only on documents and
instructions by which it was initiated. For this reason, the bill of lading as a
payment document should meet certain conditions referring especially to the
loaded goods condition and its delivery term.
The correlation between the bill of lading data, goods delivery term
time of validity of the letter of credit. As a transported goods warehouse
receipt, the bill of lading facilitates the sale because the possession of the bill
of lading means the symbolic possession of the transported goods. The
transmission of the bill of lading is equivalent to the transmission of the sold
thing, so that the seller has the opportunity to pretend the price when the
document was handed over. The seller needs the bill of lading to negotiate it
or to transmit it to the buyer through the bank, receiving the equivalent value
of the sold goods based on the letter of credit. Considering the data and the
notes written on the bill of lading are real, the buyer will pay the equivalent
value before getting the bill of lading, that would be transmitted to him after
that by the bank and he will pretend the captain to deliver him the goods in
full accord with their description in the bill of lading. For this reason, beside
the obligatory notes, the bill of lading should include the date of effective end
of the loading of the goods mentioned in it and to be issued only after the
loading was finished. This note is important because it conditions the opening
of the documentary credit. In the letter of credit there are always conditions
concerning the bill of lading date. The delivery term settled by parties by the
contract will be found in the letter of credit as a limit term up to which the bill
of lading can be handed.
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• The responsibility of the parties in the fulfillment of the Contract of goods

transport based on bill of lading (section 9). The international situation
referring to the uniformity of the rules which lead the responsibilities system
in goods transportation based on bills of lading is complex. Now, in many
countries, the law concerning the responsibility conditions is still represented
by Haga Rules and Haga-Visby which protect mainly the carriers interests.
As a reaction to the lack of balance maintained by these conventions, favoring
the carriers, who are, mainly, from the industrialized countries, the
international community has decided to find a more equitable system to share
the responsibility. These efforts have been materialized in Hamburg Rules
which have settled the carrier’s responsibility is based on the fault principle
or the presumed negligence. The carrier answers for the prejudice result of
the loss or the damage of the goods as well for the delay in goods delivery.
For the loss or for the damage of the goods or for the delay caused by a fire,
the carrier would answer if the claimant proves the fire resulted as carrier’s
fault or negligence, officials in charge or his mandatory. In the situation of
living animals transport, the carrier’s responsibility would be taken into
consideration only if he doesn’t follow the instructions given by the loader.
The carrier answers also for the goods transported on deck without loader’s
agreement or contrary the practice of that traffic. If the transport was totally
or partially entrusted to other person, the carrier would answer also for the
transport stage did by that one. Excepting the situations of common damage,
the carrier doesn’t answer for the losses, prejudices or delivery delays
resulting from actions of human lives rescue or reasonable actions to save
goods on the sea. In all these situations the right to act belongs to the
legitimate owner of the bill of lading who will have the obligation to
announce the damages, the prejudices and the delays under the sanctions
settled by law. The evaluation of the compensations would be done according
to Hamburg Rules. For other situations resulting from the international sea
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transport activities not settled in Hamburg Rules, the responsibility of the

carrier is established according to the international conventions or the
national laws referring to the limitation of the responsibilities of the ship-
owners.
As concerning the responsibility of other parties involved in the
fulfillment of the sea transport contract based on bill of lading, Hamburg
Rules settle the loader’s responsibilities for the prejudice the carrier had to
pass through as well as the obligations of this one in the situation of
dangerous goods transport. In this case, the carrier will have the quality of
claimant who has the same obligation to announce in writing the loader about
the loss or the prejudice. As concerning the recipient’s responsibility in the
hypothesis the freight would be paid by this one, in the absence of special
instructions included in Hamburg Rules, we consider applicable the
instructions in the Romanian Code of Mercantile Law. Any action referring to
goods transport is lost by limitation in two years term, whatever the claimant
will be the carrier or the goods recipient ;
• Between tradition and modernity. Actual tendencies Concerning the
bill of lading improvement (section 10). Traditionally, the bill of lading has
been written on the paper and represented a negotiable title. Its development
as a warehouse receipt for the transported goods and as a payment document
in the international transactions facilitated the international sale. Under the
actual circumstances, very often the loader (consigner) transports his own
goods, so that the bill of lading on which the traditional payment mechanism
by the bank letters of credit has begun to loose its utility. In the same time the
speed increase in the maritime industry by using containers and other
improvement means concurs with the increasing of the delays in the bank
services and with the agglomeration of the post services, and, as a
consequence, an important number of situations when the ship reaches the
destination before the transport documents. From this point of view, the
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system based on bill of lading seem not to meet any more the actual
exigencies. This system is reproached to be to slow in comparison with the
actual transport conditions because it involves numerous movements,
signatures and impediments. The difficulty of the system determines delays
or, the bill of lading essence is the fact it reaches to the destination before the
goods arrival and not inversely as often happens. On the other hand, by its
usage modality, it facilitates fraud, this one being the price paid by all the
formalist systems in which the transactions are reduced to documents. In
order to be adapted to the actual situation the practice has created new
transport documents which, with certain limits can replace the traditional bills
of lading, meaning the waybill and the electronic bill of lading.
The maritime waybill represents a receipt for the loaded goods and a
proof of the contract concluded by the loader and the carrier, but it loses the
most important function of the bill of lading, the negotiability.
On the other hand, the development of electronic commerce based on
the implementation of the electronic data interchange which has changed the
way of negotiating and concluding the contract at distance has raised the
problem of automation the bill of lading. In the maritime industry, this system
has been developed in order to replace the traditional paper documents,
especially the bills of lading with electronic messages. This way a new type
of bill of lading appeared, the electronic bill of lading, the most recent being
Bolero bill of lading which also fulfills the role of the traditional bill of
lading, the negotiability. The technical automated enough complicated
procedure of the electronic bills of lading presented in this section proves that
in the problem of the forgery, an electronic bill of lading presents shows more
security than a traditional one. Only in the situation when the forger can read
the cryptographic code, and that from the mathematical point of view is
impossible, could forge the electronic bill of lading.
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Chapter III, About the law conflict concerning the bills of lading
includes four sections.
In the first section there are presented general aspects concerning the
conflict norm and the laws conflicts.
The sea transport contract implies usually an international aspect, so
that any litigation connected with the transported goods involves problems
about the stability of the applicable laws. Most of the standard bill of lading
forms include clauses which designate applicable law and the competent
instance to solve the possible litigation. The ways of establishing the
applicable law in the absence of such clauses, referring to the Romanian law
(Law 105/1992) and to the Romanian and foreign jurisprudence in the filed
are analyzed in the second section.
The law applicable to the bill of lading according to the principle lex
voluntatis is the law chosen by agreement by both parties. In the absence of
an explicit clause, concerning the law applicable to the contract, this one
would be lead by that legislation to which the parties intended to submit or,
when this intention can’t be deduced from the circumstances of the cause, by
the law with which the contract has the closest connections. The applicable
law, either is settled by the contract parties, or by the judgment instance based
on the subsidiary but obligatory conflict norms, it settles the validity
conditions and the effects of the contract, the fulfillment of the obligations
and the responsibility for not fulfilling or late or inadequate or fulfillment.
As concerning the jurisdiction competence, Hamburg Rules, though,
unlike the previous conventions settle the possibility of the parties to chose a
certain instance, don’t settle the fundamental conditions of the jurisdiction
attributive clause, the way in which the agreement of both parties should be
expressed and the unique situation of the recipient, of that resulting different
practices in the field.
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As an alternative, the parties can chose the arbitration way to solve the
possible litigations (section 4). The arbitration clause is settled, usually in the
shipping contracts and rarely in the bills of lading, excepting the situation
when are issued based on the shipping contracts. This clause is valid in the
relations between the shipping contract parties. Instead, if in the bill of lading
there is no reference about the arbitration clause of the shipping contract this
is not opposable the third parties getting the bill of lading.
The necessity of correspondence of the national legislation with the
community one in the field of goods sea transports. The sea highways
(Chapter IV). The complexity of transport services and their distinct features
imposed special provisions which settle at the community level the
opportunity of delivering services, the free access to the sea transport market
and the practices of prices settlement in this filed. As concerning the
community acquis and its transfer, Romania agreed Chapter 9, The policy in
the transport field and obliged itself to take the necessary measures to be
actually established up before becoming a member.
The European Union policy follows by developing the maritime
commerce not last to find a competitive alternative for the land transport.
Thus, it is considered the maritime transport in the community and the river
transport are two elements which combined can solve the agglomerated road
and railway structure. Their development is step forward to create the sea
highways and to offer simple and performing services.
Romania, as a riparian country and connection between East and West,
future member of the European Union should follow permanently the
conditions and the realities concerning the international transports not only
from the legislation point of view, but also a contract practice. Though in
present there is a legislation base concerning the electronic commerce,
compatible with the European one, the bills of lading used in transactions are
still the traditional ones and not the modern ones, the electronic bills of
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lading. Practically, there are no reasons not to use these new forms of bills of
lading by the Romanian tradesmen as long as the internal legislation allow
that.
In the general frame of the preoccupations to modernize the Romanian
legislation the changing of provisions of the Code of Mercantile Law
concerning the transport generally and especially to the bill of lading should
be an objective. On the other hand, similarly to the countries with tradition in
the filed, which under the influence of the international rules have
modernized their legislation, including the maritime commercial law in
independent codes, also in Romania the project of the Maritime Code should
not be forever a simple project, but to be adopted, and all the maritime
commercial law specific institutions to be modernized to the actual most
advanced standards to be included in the new Maritime Cod.