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Answer
(from Vlad Cioarec) |
What factors make a transport document to be a
document of title?
It is deemed a document of title any document that had to be surrendered to
obtain the possession of goods, e.g. bills of lading and warehouse receipts.
A bill of lading is a document of title to the goods regardless of whether
is made out to order or not. The confusion regarding straight bill of lading
is due to the belief that bill of lading is a document of title only when is
made out to order of shipper. The provisions of Section 5 paragraph 2 (a) of
Carriage of Goods by Sea Act 1992 make clear that references to holder of
B/L include also the consignee identified in a straight B/L.
See the conclusions of legal dispute Rafaela: JI Macwilliam Co Inc v
Mediterranean Shipping Company S.A.[2003] of which I quote the following
paragraphs:
"it is salutary to bear in mind that the courts of France, Holland and
Singapore have determined that a straight bill of lading does require to be
produced for delivery of the goods and on that basis have been prepared to
describe such documents as documents of title.
143. The ... question is, then, whether such a straight bill of lading,
which has to be produced to obtain delivery, is a document of title? In my
judgment it is..... Whatever, the history of the phrase in English common or
statutory law may be, I see no reason why a document which has to be
produced to obtain possession of the goods should not be regarded, in an
international convention, as a document of title. It is so regarded by the
courts of France, Holland and Singapore.
144. Is it a "similar" document of title? If I am right to consider that
negotiability is not a necessary requirement of a "bill of lading" within
the meaning of the Rules, then plainly it is. But I also think that the good
sense of regarding a straight bill whose production is required for delivery
of the goods as a document of title in turn supports the answer to the prior
question of whether a straight bill is a "bill of lading"."
For more on this matter see the commentary of Mr. Peter Jones on
Forwarderlaw on this matter:
http://www.forwarderlaw.com/library/view.php?article_id=235&highlight=straight+bill+of+lading
What are differences between a straight Marine
Bill of Lading and A Non-Negotiable Sea Way Bill?
Bill of Lading needs to be presented to obtain the
goods at the port of destination while the sea waybill (similarly to air
waybill, road waybill and rail waybill) don't. The carrier's only
responsibility in this respect is to exercise due diligence when confirming
the identity of the person claiming to be the consignee. The standard forms
of sea waybills have on their face a clause to draw attention on this
matter. E.g.
"The Cargo shipped under this Tanker Waybill will be delivered to the
Consignee on production of proof of identity without any documentary
formalities." (Intankwaybill 2003) "The cargo shipped under this Waybill
will be delivered to the Party named as Consignee or its authorised agent,
on production of proof of identity without any documentary formalities." (GENWAYBILL)
"The goods shipped under this Sea Waybill will be delivered to the Party
named as Consignee or its authorised agent, on production of proof of
identity without any documentary formalities." (LINEWAYBILL) The sea waybill
functions similarly as air waybill, road waybill and rail waybill in the
sense that it is only a receipt for the goods and evidence of contract of
carriage. It cannot be made out to order and does not have to be presented
at destination to obtain the goods.
However, a shipper under sea waybill has the right "to change the name of
the consignee at any time up to the consignee claiming delivery of the cargo,
provided he gives the carrier reasonable notice in writing, or by some other
means acceptable to the carrier". (art.6 (i) of CMI Uniform Rules for Sea
Waybills)
Anette Jahr has commented about this matter on Forwardelaw web site:
"the seller may present a full set of original seaway bills to the bank
in accordance with UCP 500, but if the seller has not informed the carrier
that it has waived the right to name another consignee, the seller can still
instruct delivery to be made to a consignee other than the original buyer."
The full commentary is available on Forwardelaw web site:
http://www.forwarderlaw.com/library/view.php?article_id=238&highlight=Anette+Jahr
The point is that if there are any buyers willing to
pay by L/C against sea waybills, they should agree with sellers that L/C
include a clause to protect the buyer, e.g.
"A full set of 1/1 clean shipped on board non-negotiable sea waybills
stipulating goods to be released at destination to the applicant and claused
to the effect that the shipper had surrendered the right to change the name
of the delivery party duringthe course of transit."
Pay attention also to art. 6 (ii) of CMI Rules which says that:
"The shipper shall have the option, to be exercised not later than the
receipt of the goods by the carrier, to transfer the right of control to the
consignee. The exercise of this option must be noted on the sea waybill."
BIMCO gives on its web site an example of such notation:
"I, the Shipper (named in the Shipper Box on the face of this Waybill)
hereby transfer the right of control to the cargo carried under this Waybill
to the consignee (named in the Consignee Box on the face of the Waybill)."
Perhaps L/Cs issued for FOB shipments should include a condition that Sea
Waybill have such a clause for protection of L/C applicant.
So far as I know sea waybills are issued by shipping lines to freight
forwarders for groupage containers.
Best regards,
Vlad Cioarec
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