waybill

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German Rail Waybill (November 1892)

The waybill ( English waybill is) in the freight business a document accompanying the goods , which in the cargo on the cargo is issued.

General

Involved in the freight business are the seller (or shipper , sender , shipper , exporter ), the carrier ( shippers ) and the buyer ( receiver , importer ). In order to reduce or eliminate the transport risk, a consignment note is provided which, among other things, confirms the acceptance of precisely specified goods by the carrier as a confirmation of unloading .

history

Waybill from 1756

The waybill was originally created for land transport and inland waterway transport, before it was introduced in rail, air and finally also in sea transport. In the year 1063, in the “Rules and Customs for the Sea” of Trani ( Latin Ordinamento et Consuetudo Maris de Trani ) the forerunner of today's bill of lading can be determined. After that, a publicly appointed and sworn ship scribe had to create a list ( Latin cartularium ) of all goods taken on board, the recipient could request the delivery of the goods listed therein.

The first land waybill to be used in Europe dates from 1337 and came from Doge Francesco Dandolo from Venice . The German word consignment note (“fahrbrieff” or “vrachtbrieff”) appeared for the first time in 1610. In 1656, the poet Georg Philipp Harsdörffer explained very clearly that goods are transported by land and by water, “because the goods are now entrusted to the carters or boatmen, and the goods sent and the number, weight and size of the barrels must be specified , and the Führman's name, even where it belongs, is included in the conditional freight charges, and what has been paid out on it, everything is described in the bill of lading so that there is no dispute or error ”. The oldest known German form dates from 1693. A consignment note from April 1756 has been received, which certified the transport “with divine accompaniment”. Comparable with the sea waybill is the charter part ("Certepartie") that emerged around 1727 , but it replaced neither the bill of lading nor the waybill.

The freight law originated for the first time in fragments in the General Prussian Land Law (APL), which in June 1794 provided rules for “drivers” (II, 8 §§ 2352-2464 APL), but did not mention the consignment note. A first rail waybill appeared in 1849 from the railroad administrations, another copy appeared in 1856. The first precise regulations were in the ADHGB from May 1861, which contained regulations for land and inland waterway transport (Art. 390 ADHGB) and rail transport (Art. 421 para. 1 ADHGB). According to Art. 391 Para. 1 ADHGB, the consignment note provided evidence of the freight contract concluded between the carrier and the sender , the content of which was precisely specified in Art. 392 ADHGB. The Railway Traffic Regulations (EVO) specified the content of the railway waybill in November 1892. According to this, every shipment had to be accompanied by a consignment note, the content of which is specified in Section 51 EVO a. F. was regulated. The form of the consignment note shown resulted from § 52 EVO a. F.

The sea ​​waybill was still unknown in Germany in 1974. The transport law reform of July 1998 moved the consignment note to §§ 407 ff. HGB. The German maritime trade law experienced a significant internationalization in April 2013, which for the first time also made it possible to choose between a bill of lading or a sea waybill.

species

The waybill is used today for all means of transport . The waybill has different names depending on the means of transport. On land it is called CMR ( road transport ) or railway waybill ( goods train ), in the air AWB ( air freight ) and water bill of lading ( IWT ) or bill of lading ( maritime ).

Legal issues

The legal basis for the waybill is Section 408 (1) HGB , which lists the minimum content of a waybill:

  • Place and day of issue ,
  • Name and address of the sender ,
  • Name and address of the carrier ,
  • Place and date of acceptance of the goods as well as the place intended for delivery ,
  • Name and address of the recipient and a possible registration address,
  • the usual designation of the type of goods and the type of packaging; in the case of dangerous goods, their designated designation according to the dangerous goods regulations, otherwise their generally recognized designation,
  • Number, characters and numbers of the packages ( packages ),
  • the gross weight or the otherwise specified quantity of the goods,
  • the agreed freight and the costs incurred up to delivery as well as a note about the freight payment,
  • the amount of a cash on delivery to be collected upon delivery of the goods ,
  • Instructions for the customs and other official handling of the goods,
  • an agreement on carriage in an open vehicle that is not covered with tarpaulin or on deck.

This list is not exhaustive. The carrier can ask the sender to issue a consignment note. It is issued by the sender on the basis of a freight contract ( § 407 Paragraph 1 HGB) and obliges the carrier to transport the freight to the destination and deliver it to the recipient there and obliges the sender to pay the agreed freight . The consignment note signed by both contracting parties serves as proof of the conclusion and content of the freight contract as well as for the acceptance of the goods by the carrier in accordance with Section 409 (1) of the German Commercial Code (HGB) - unless the contrary is proven. The consignment note can be issued in electronic form (Section 421 (3) HGB). After the freight has arrived at the delivery point, the recipient is entitled in accordance with Section 421 (1) of the German Commercial Code (HGB) to demand that the carrier deliver the freight to him in return for compliance with the obligations under the freight contract. Pursuant to Section 421 (2) of the German Commercial Code (HGB), the recipient must pay the freight still owed up to the amount shown on the consignment note.

The waybill is not a security or traditional paper like the bill of lading ( Section 513 Paragraph 1 HGB) or the loading note ( Section 443 Paragraph 1 HGB). Its function is limited to the unloading confirmation and the locking paper .

old KVO consignment note (long-distance freight transport)

With the introduction of the Transport Law Reform Act in 1998, the consignment note has no longer been compulsory in national German freight transport; other shipping documents, e.g. B. delivery notes , loading lists or Bordero can be used.

Copies

The consignment note must be issued in three copies: One copy remains with the sender, one accompanies the freight, one copy is intended for the carrier ( Section 408, Paragraph 2, Sentence 2 of the German Commercial Code). The sender has to sign all three copies. Only all three copies in the original together result in a uniform waybill. If the sender does not issue the consignment note despite the carrier's request, the carrier has a right of retention with regard to the goods to be transported in accordance with Section 273 of the German Civil Code .

Functions of the waybill in freight law

Information carrier function

By its nature, the consignment note is an instruction document accompanying the goods . This means that with the consignment note, the sender informs the first or subsequent carrier, but also forwarders , warehouse keepers and the recipient about the nature and quantity of the freight, about the transport route and about measures to be taken by the carrier in the event of obstacles to transport and delivery has to take. Therefore, a copy of the consignment note accompanies the freight.

A signature by the carrier is not required (in contrast to the provisions of Art. 5 Para. 1 CMR or Art. 6 Para. 2 of the Warsaw Convention (WA)). However, at the request of the sender, the carrier must sign the consignment note. The proof function of Section 409 of the German Commercial Code (HGB) is only assigned to the consignment note signed by both sides.

Proof function

The properly issued "bill of lading" signed by both sides proves the conclusion and content of the freight contract as well as the acceptance of the goods by the carrier in accordance with Section 409 of the German Commercial Code (HGB) and justifies the - rebuttable - presumption that the goods and their packaging were taken over by the carrier were in outwardly good condition and that the number of packages and their marks and numbers match the information on the consignment note, which - similar to Art. 9 CMR - is associated with a reversal of the burden of proof via the presumption . According to § 292 ZPO , the existence of the cited fact must then be assumed until the contrary is proven.

If the carrier cannot check the information on the consignment note, he can enter a corresponding reservation on the consignment note. If a consignment note is missing or if the consignment note is not properly signed, the rebuttable presumption of evidence of § 409 HGB does not apply. The general rules of evidence then apply. The consignment note signed by only one side can, however, in individual cases have the general evidential effect of a document according to § 416 ZPO, according to which, although not the content of the declaration, but its submission can be proven.

Acknowledgment function

In addition, the consignment note has a receipt function ( Section 368 of the German Civil Code) with regard to two different items :

  • for the takeover process ( Section 409 (1) variant 2 HGB),
  • for certain information about the freight (external condition, quantity and mark in accordance with § 409 Paragraph 2 HGB; gross weight in accordance with § 409 Paragraph 3 HGB).

These rebuttable presumptions of evidence can be excluded through reservations made by the carrier, which the carrier has entered on the consignment note. These reservations do not have to be acknowledged by the sender to be effective.

Functions of the waybill in payment transactions

When processing the purchase price payment for the delivered goods, the waybill is important in different ways:

Payment against invoice

The waybill usually plays no role here.

Document collection

When collecting documents , the purchase contract is usually based on the cash versus documents clause . As a result, the due date of the purchase price debt may be brought forward to the point in time when the goods are dispatched, without the buyer being able to examine the goods before paying.

Document collection is based on the blocking effect of the consignment note in accordance with Section 418 (6) of the German Commercial Code (if specifically designed in this way); If the consignment note is designed accordingly, the person authorized to issue instructions can only exercise his right of disposal upon presentation of the sender's copy of the consignment note.

After handing over the freight to the carrier, the seller hands over his consignment note copy to a credit institute commissioned by him so that the latter can collect documents. This in turn usually commissions a correspondent bank engaged by the importer , which submits the documents to the importer for review. If the importer and recipient of the goods accept the documents as being in accordance with the contract, they will instruct their bank to pay the purchase price; the latter will transfer the purchase price to the seller's bank. The seller's bank then issues the credit to the seller's account .

The waybill is then transformed into a kind of credit security as soon as the seller's bank pre- finances the debt collection or buys it as part of the factoring and pays the seller when the consignment note is handed over.

Letter of credit

The buyer of the goods commissions a credit institute in his importing country and opens a letter of credit in favor of the seller. The letter of credit essentially has a payment function. The crediting bank assures the client that it will pay the beneficiary seller the purchase price as soon as he presents certain documents. In contrast to documentary collection, the seller has no payment risk with regard to the buyer's willingness and ability to pay if the letter of credit is irrevocable. The letter of credit gives the seller an independent claim to payment directly from the bank.

Permissible / usual documents for documentary credit are the sender's copy of the consignment note, Art. 24 UCP 600 regulates the acceptance of transport documents for road, rail or inland waterway transport by the banks. These include the double consignment note with a blocking function for international rail traffic, the first issue of international road freight transport and the waybills for national freight transport. Art 23 ERA 600 regulates this for transport documents for air transport.

See also

literature

  • Thomas Wieske : Transport law recorded quickly. 3. Edition. Verlag Springer, Berlin / Heidelberg 2012, ISBN 978-3-642-29725-0 .
  • Ingo Koller : Transport law. Comment. 9th edition. Verlag CH Beck, Munich 2016.
  • Olaf Hartenstein, Fabian Reuschle (ed.): Handbook of the specialist lawyer for transport and forwarding law. 3. Edition. Carl Heymanns Publishing House, Cologne 2015

Web links

Wiktionary: waybill  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Florian Gehrke, The electronic transport document , 2005, p. 3
  2. ^ Heiko A. Giermann, The liability of the carrier for bill of lading information: the Hague and Haager-Visby rules , 2000, p. 16
  3. ↑ Chester B Mclaughlin, The Evolution of the Ocean Bill of Lading , in: Yale Law Journal vol. 35, 1925, p. 550
  4. ↑ Abraham Polak, Historisch-juridisch onderzoek naar den art van het cognossement , 1865, p. 24 ff.
  5. ^ Levin Goldschmidt , Universalgeschichte des Handelsrechts , 1891, p. 332, FN 113
  6. ^ Alfred Schirmer, Dictionary of German Merchant Language on Historical Foundations , Volume II, 1911, p. 65
  7. ↑ Georg Philipp Harsdörffer, Der teutsche Secretarius , Volume I, 1656, p. 427
  8. ^ Levin Goldschmidt, Handbuch des Handelsrechts , 1868, p. 736 f.
  9. ↑ William Coermann, The Reichs-rail legislation: text output with notes and subject index , 1895, pp 100 et seq.
  10. ↑ Hans Jürgen Abraham , Das Seerecht , 1974, p. 165
  11. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 98 and marginal no. 141/142, ISBN 978-3-452-27562-2
  12. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 139 ff.
  13. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 144.
  14. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 98
  15. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 99
  16. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 99
  17. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 100 ff.
  18. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 111 ff.
  19. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 112 ff.
  20. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 118/119
  21. ↑ Olaf Hartenstein / Fabian Reuschle (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, 2012, Rn. 120/121