bill of lading

French bill of lading (blank form)

The bill of lading ( English Bill of lading , B / L) is in the maritime trade , a bill of lading , document accompanying the goods and securities that the ship transport of merchandise proves.

etymology

The loan word bill of lading appeared in Germany for the first time in 1545 as "congnosament" and goes back to the French consignment note ( French connaissement ). The French word origin in turn came from the Roman consignment note ( Latin cognoscentia ). Johann Hinrich Röding defined the "Connossement" in 1794 as "a consignment note from the shipper, ... whereby the shipper acknowledges that he has received the goods specified therein properly and that he undertakes to deliver them ... to the specified location".

General

The bill of lading is more than a confirmation of unloading , a receipt or a security. It is also important in foreign trade finance, where it specifically represents the most important document in letters of credit and document collection. Credit institutions can acquire bills of lading for export and import financing through endorsement and thereby use them as collateral for credit . Since the bill of lading represents the cargo, the credit institutions also become owners of the cargo through endorsement.

history

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. From 1397 onwards, copies of the directory could be made to the authorized persons in Ancona . In 1538, an English carrier certified the receipt of the goods for the first time in a freight contract ( English indenture ) and promised to hand them over after the transport. It was only after the victory over the Spanish Armada in 1588 that the use of bills of lading began to increase in England .

The land law of the Duchy of Prussia from 1620 took over the strict liability of the carrier , in 1764 a legal dictionary defined the bill of lading for the first time in today's form. The General Prussian Land Law (APL) of June 1794 defined the bill of lading ("connoissement") as the receipt issued by the shipper to the shipper about the receipt of the loaded goods. Also in 1794, an English court ruling recognized the transferability ( English negotiability of) of bills of lading. In England, the first independent Bill of Lading Act (BLA) came into being in 1855 . The levied in Germany in April 1871 to Reichsgesetzblatt ADHGB separated clearly between the "Rezeptum" -Liability through the acquisition of goods and " Skripturhaftung " for the accuracy of the information in the bill of lading. It was valid until the HGB came into force in January 1900, which was largely based on the ADHGB in the section on maritime trade law. The US Harter Act of February 1893 replaced the Bill of Lading Act that had previously been in force in the US and restricted, among other things, the exemption clauses in bills of lading. The "Brussels Convention of 1924 for the uniform establishment of rules on bills of lading" ( Hague Rules ) was based on a conference in The Hague in September 1921, but lengthy ratifications made it possible to enter into force on June 2, 1931. It was not until January 1940 that Germany ratified the Hague rules and incorporated them into the Commercial Code.

Legal issues

Of these are involved in the bill of lading cargo transferring shipper or its in order acting shipper , the sea transport transferee shipper and receiver of the cargo. The bill of lading is the document of proof of a sea freight contract.

Commercial law

Pursuant to Section 513 (1) of the German Commercial Code ( HGB) , the shipper must issue the shipper with an order bill of lading upon request. The bill of lading is to § 514 para. 1 HGB issue as soon as the carrier has taken over the cargo. It is usually issued in several copies , the so-called bill of lading . The shipper can determine the number of copies of the bill of lading to be issued. As a rule, three originals are issued (so-called “full set”, English full set , whereby such a “full set” can also consist of fewer or more original bill of lading). The individual copies must match in all points, their number must be indicated on each of the copies. These copies will be distributed to those involved. The individual copies are legally identical to one another. They certify the same extradition claim of the recipient against the carrier. With the bill of lading, the carrier confirms receipt of the goods and undertakes to transport them to the destination and to deliver them to the person entitled under the bill of lading against return of the bill of lading .

The content of the bill of lading is prescribed in Section 515 (1) of the German Commercial Code. Mandatory information is then the place and date of issue, name and address of the shipper, name of the ship, name and address of the carrier, port of shipment and destination, name and address of the recipient and any registration address, type of goods and their externally recognizable constitution and quality, The size, number or weight of the goods and permanent and legible marks, the freight owed on delivery, costs incurred up to delivery and a note on the freight payment and the number of copies. In addition, bill of lading for multimodal transports contains information on the pre- carriage and on-carriage ; in the case of container shipments, at least the container numbers and, if applicable, seal numbers. In addition to the provisions on freight, further information on additional costs such as loading and unloading costs can be entered in the bill of lading. In addition to the written form , the electronic bill of lading is also possible ( Section 516 (2) HGB). The evidential value results from the irrefutable presumption according to § 517 Abs. 1 HGB that the carrier took over the goods as it is described according to § 515 Abs. 1 Nr. 7 and 8 HGB. After the freight has arrived at the place of discharge , the authorized owner of the bill of lading is entitled in accordance with Section 521 (1) of the German Commercial Code to demand that the carrier deliver the goods in return for the bill of lading.

Information about the goods

Before the start of loading, the shipper informs the carrier what information is to be included in the bill of lading with regard to size, weight, number, type of goods and marks. Basically, according to the Hague Rules, the goods accepted for transport must be described in terms of type, size, number, weight, marks and externally recognizable condition and condition. This is particularly important for piece goods, so that the goods can be separated (= individualized) from the total cargo of the ship in the port of discharge. According to German law, the carrier can only add well-founded additions, so-called unknown clauses (e.g. "marks illegible" or "weight unknown, as not weighed"). If, as is customary in practice, two quantities are included in the bill of lading, the carrier can add a simple (unfounded) unknown clause to one of these details (e.g. "unknown weight / said to weight"). Unknown clauses do not make a bill of lading unclean.

Unknown clauses

Type of goods

The carrier is not bound by the description of the goods requested by the shipper. He may list their type in a way that corresponds to his duty of truth. He can stick to type designations. In the case of packaged goods, the presumption of evidence in the bill of lading can be excluded by adding "Contents unknown / said to contain". This clause also covers the carrier with regard to the quantity, quality and value of the content.

Measure, number, weight

The shipper himself is liable for the correctness of his information. The carrier must include at least one of the details in the bill of lading. Often this will be the one that is easiest for the carrier to verify. If the carrier also includes the other information, he can revoke the presumption of evidence for the correctness by means of unknown clauses. From the unknown clauses, however, it must then be clear why the reservation is made (e.g. “weight unknown, as not weighed”).

Marks

Marks on the goods or their packaging must be included in the bill of lading. However, they must be permanently printed, otherwise they do not need to be mentioned in the bill of lading. If, at the request of the shipper, the shipper takes them up anyway, he can add an addition to them that removes the presumption of evidence (e.g. "marking unknown, as illegible").

Outwardly recognizable constitution and condition

The bill of lading should state the condition of the goods including the packaging upon acceptance. This is usually done through the clause "Shipped in apparent good order and condition". In the event of identifiable defects, however, the carrier removes the evidential value of the bill of lading by depreciating it (e.g. "barrels dented", "bags partially torn due to the use of hooks").

Securities law

The Securities Law assigns the bill of lading according to § 363 para. 2 HGB as gekorenes Order paper one. This means that it only becomes an order paper when the order clause is added; without a clause, it is a registered paper . The legitimate owner of the bill of lading is entitled to the right to the freight in accordance with Section 519 of the German Commercial Code . This is when the Orderkonnossement through an uninterrupted series of endorsements demonstrative owner , the Inhaberkonnossement the owner or the Namenskonnossement herein Named owner. The bill of lading is at the same time a traditional paper according to § 524 HGB, whereby its legitimized owner is also the owner of the freight and has a right to surrender it.

Bill of lading as evidence

In the liner journey , the bill of lading - unless a separate booking note has been issued - is also a document of evidence for the content of the general cargo contract concluded between the carrier and the carrier . The conditions of carriage result from the bill of lading clauses. If the bill of lading and the contract of carriage differ, the terms of the bill of lading apply to the recipient. Only if the recipient is also the shipper do the conditions of the freight contract apply to him.

In the hitchhiking trip , the individually negotiated conditions can be found in the charter part . Bills of lading are then very scarce in terms of content. Usually the bill of lading refers to the regulations in the charter party: "All other conditions, exceptions and clauses as dated by charter party ...". The charter party should therefore also be valid for the bill of lading holder.

In principle, the bill of lading is decisive for the legal relationship between the carrier and the consignee, while the provisions of the sea freight contract remain authoritative for the legal relationship between the carrier and the carrier.

Hague rules

The Hague Rules serve to standardize international standards on bills of lading. The rules state that a freight contract can only be concluded if a bill of lading is issued at the same time. In particular, they regulate the carrier's liability for the contents of the bill of lading, whereby limitations of liability must be observed. For this purpose, the carrier must check the externally recognizable condition and quality of the goods. A bill of lading must be pure ( English clean his) and must not contain the restricted quality have the cargo descriptive content. A liability of the carrier for force majeure at sea is excluded.

Marginal clauses

A bill of lading is referred to as "clean" ( English Clean Bill of Lading ) if it does not contain any marginal clauses, i.e. notes on damage to the goods or their packaging (also called write-offs or foul notes). It is then not necessary to note the addition “clean on board” on the bill of lading. Write-offs make the bill of lading unclean. Since the carrier is liable for delivering the goods to the recipient as described in the bill of lading ( script liability ), he will, in his own interest, insist that all recognizable damage be recorded in the bill of lading.

Pure bill of lading against lapel

Depreciation in the bill of lading complicates the use of paper as a security. An unclean bill of lading cannot be used for a letter of credit. The shipper will therefore try to get a pure bill of lading from the carrier. He then undertakes in a lapel (English Letter of Indemnity) to hold the carrier free from all claims for damages and costs that arise from the concealment of defects in the goods.

A lapel is quite common in practice. However, it is debatable whether such a reverse contract is legally valid. In doing so, it must be taken into account which reasons are based on the issuance of the reversal and the intended purpose. A reverse contract is to be regarded as valid if the carrier, for reasons of goodwill, fails to make a note of defects to the shipper because he cannot judge whether there is a defect based on his own knowledge of the goods. This can e.g. This may be the case, for example, if unpackaged steel products show traces of rust, or if signs of use can be seen on the packaging of goods.

A reversal is possibly void if the carrier and unloader consciously accept deceiving the recipient about the condition of the goods by neglecting to add write-offs in the bill of lading.

Freight payment clauses / additional costs

The bill of lading usually contains information about the freight payment. The notes on the bill of lading serve as proof of payment. If the sea freight is paid by the shipper or shipper, the bill of lading bears z. B. the note "Freight Prepaid". If the recipient is to pay for the sea freight, the note "Freight Collect" is attached. Notes can also be made on the bill of lading about agreements relating to loading or unloading costs or other costs.

Bills of lading guarantee

The bills of lading guarantee ( English shipping guarantee , French garantie de connaissement ) is a bank guarantee that ensures that the recipient ( importer ) can take over the goods from the carrier, although the recipient cannot present the bill of lading. The guarantee case occurs if a recipient who is not authorized to receive picks up the goods and the carrier has suffered damage.

species

There is a takeover bill of lading and an on-board bill of lading. According to Section 514 (2) of the German Commercial Code (HGB), there is an on-board bill of lading when the cargo is taken on board; if the bill of lading has already been issued, it is a takeover bill of lading .

Takeover bill of lading

With the acceptance bill of lading ( English Received for shipment, B / L ), the carrier confirms that he has accepted the goods for shipment , but not yet the actual shipment. The takeover bill of lading is customary if the carrier and the unloader agree to issue a bill of lading prior to shipment. This is regularly the case in container traffic with FCL containers because these are taken over either by the shipper or by the carrier at the container terminal. It is then issued as an intermodal bill of lading. The note "shipped on board", which must be signed, turns the takeover bill of lading into an on-board bill of lading.

On-board bill of lading

With the on-board bill of lading ( English On-board B / L, Shipped B / L ) the carrier confirms that the goods have been loaded for shipping on board a (named) ship (On-board B / L, Shipped B / L). An on-board bill of lading is usually required for letter-of-credit transactions because the shipper only lost the actual power of disposal over the goods through the on-board bill of lading.

Special forms of the bill of lading

Partial bill of lading and partial bill of lading

Lots of goods are often split up and taken from the quay in partial quantities. The delivery of such partial quantities can take place by creating real partial bill of lading or with the help of so-called partial bill of lading (delivery note, quay partial note, delivery order). In general, the partial certificates are not order papers, but substitute documents. They are not traditional papers comparable to the order bill of lading, but merely document the right to delivery of the partial lot. A transfer by endorsement is not possible.

Delivery order

a distinction is made between a real and a fake delivery order.

real delivery order: The real delivery order is issued without the involvement of the carrier and without the return of the original bill of lading. The recipient sells partial quantities and passes the bill of lading to a so-called bill of lading holder (e.g. freight forwarder, bank, warehouse keeper). The bills of lading issues delivery orders before the goods are picked up from the ship. Since the original bill of lading is still in force, the delivery order does not justify a delivery claim against the carrier. Rather, the holder of a delivery order acquires a delivery promise from the bill of lading.

Quay partial notes

Quay partial notes are issued by the bill of lading himself. The original bill of lading will be collected by the quay establishment, the lots named in the quay partial notes will be delivered in accordance with the original bill of lading against receipt. After all quay partial certificates have been redeemed, the original bill of lading will be returned to the carrier or his representative by the quay establishment.

Delivery notes

Also, delivery notes will be issued at the port of (line) agents upon return of the original bill. The delivery note transfers ownership of the goods to the buyer of a partial lot. The delivery note contains a delivery promise by the carrier.

Partial bill of lading

Partial bills of lading are issued by the (line) agent in the port of discharge against return of the original bills of lading if the recipient wants to have the goods accepted in partial lots by different buyers. Partial bills of lading agree with the original bills of lading except for the quantities and are full-value securities.

fake delivery order: The fake delivery order is issued by the carrier or his agent in the port of discharge. The authorized recipient gives the shipper or his agent the desired partial quantities and receives the corresponding number of delivery orders in return of the original bill of lading. Since the original bill of lading was returned and is therefore powerless, the fake delivery order justifies a delivery claim against the carrier.

Bill of lading

For shipments in which two or more carriers are involved, Through Bills of Lading can be issued for the entire transport route.

simple bill of lading: The carrier on the first leg (= first carrier / main carrier) issues the through bill of lading. It applies to the entire transport route. After the transshipment, this main carrier obliges a second carrier to carry it on. This issues a so-called connection bill of lading (local bill of lading).; The local bill of lading alone does not authorize delivery, while the through bill of lading is traditional paper. After the forwarding bill of lading has been presented and returned, the agent of the second haulier hands the recipient the local bill of lading for delivery.; The main carrier has extensive obligations. He cannot exempt himself from liability for damage or loss, neither for reloading nor for the "foreign" transport section.
joint through bill of lading: The joint through bill of lading also applies to the entire transport route, in which the transport is carried out on partial routes by several carriers. Each carrier or his agent signs the through bill of lading. The liability of each carrier is limited to his part of the route. For those involved in the cargo, the document fulfills the same function as a “simple” bill of lading; above all, it is also traditional paper.
spurious through bill of lading

Multimodal Transport Bill of Lading (formerly called Combined Transport Bill of Lading)

The combined transport bill of lading (also called intermodal bill of lading) arose from the need to obtain a document with the characteristics of the traditional bill of lading for combined transport as well.

Combined transport bills of lading have the following characteristics:

in their legal effect they correspond to the bill of lading
they can be issued as negotiable order papers with traditional effects
they act as an agent
they are generally recognized as bankable
they will i. d. Usually issued as a transfer document and can be converted into a "Shipped on board" document by post-stamping in the loading port.

Delivery of the goods

The carrier only needs to deliver the goods on presentation of an original bill of lading. If several originals are made out and they are in different hands, every holder of a bill of lading has a right to extradition if he can legitimize himself as the legitimate recipient. Ultimately, however, the extradition claim can only be enforced by the holder of a bill of lading.

The carrier correctly fulfills his delivery obligations if he delivers to the first holder of a bill of lading on delivery in the port of destination and if he acts with the care of a proper carrier during the legitimation check. Once the goods have been delivered, the entitlement of other bill of lading holders expires (see collection clause below).

If several bills of lading report, the carrier is not allowed to deliver because he cannot decide who the rightful recipient is. He can store the goods in a public warehouse until the recipients have agreed on their authorization.

The delivery of the goods before reaching the port of destination is only permitted against return of the complete set of bills of lading.

Delivery without the original bill of lading

The carrier is liable for damage if he delivers the goods without submitting a bill of lading and later third parties assert claims from the bill of lading as legitimate consignees. In principle, the recipient has no right to extradition before he can present the bill of lading. The carrier can only deliver without submitting the bill of lading if the consignee's trustworthiness is beyond any doubt and the reasons for not submitting the bill of lading are credibly explained. The recipient must then undertake with a lapel to pay all follow-up costs and costs of injured third parties. For this purpose, a bank guarantee for 150–200% of the market value of the goods plus the freight is usually required. The consignee must submit the bill of lading immediately upon receipt or within a certain period. If an order bill of lading is lost, a notification procedure must be carried out to invalidate it.

Treasury clause

The cassatory clause protects the carrier from being called upon by another bill of lading holder after the goods have been delivered. After the first original has been presented, the remaining originals lose their validity (e.g. “In Witness whereof the Master or Agent of the said Vessel has signed the number of Bills of Lading indicated below all of this tenor and date, any of which being accomplished the others shall be void ").

This only applies if the goods are delivered in the port of destination. Before reaching the port of destination, i.e. when delivering to another port or if the shipper himself requests delivery without having a document legitimizing him (only "to order"), all copies must be returned. In the case of direct bill of lading, the shipper can, with the consent of the recipient, request the return of the goods before they reach the port of destination, even without presenting the document, or arrange for delivery to another recipient.

literature

Literature on the bill of lading in the catalog of the German National Library
Johannes Müller / Joseph Krauss, Manual for Ship Control , Springer Verlag, 1938.
Thomas Wieske, Transport law quickly captured , 3rd edition, Berlin Heidelberg 2012 [Publisher: Springer]
Olaf Hartenstein / Fabian Reuschle, manual of the specialist lawyer for transport and forwarding law , 2nd edition, Cologne 2012, Verlag Carl Heymanns, ISBN 978-3-452-27562-2 , (various sources)
Munich Commentary on the HGB, Vol. 7 - Transport Law, 3rd edition, 10/2014, Beck-Verlag Munich [Note: with commentary on CMR, MÜ, CMNI, COTIF and the new German maritime trade law!]
Rolf Herber, Maritime Trade Law. Systematic presentation. , 2nd edition, de Gruyter, Berlin / Boston 2016, ISBN 978-3-89949-211-8 .
Dieter Rabe / Kay-Uwe Bahnsen, Maritime Trade Law. Commercial Code, ancillary laws and international agreements. Commentary , 5th edition, Munich 2017, Verlag CH Beck

Individual evidence

↑ Jakob Strieder , From Antwerp Notary Archives: Sources on German Economic History of the 16th Century , 1962, p. 181
↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 230
^ Johann Hinrich Röding, General Dictionary of the Navy , Volume I, 1794, p. 434
^ Heiko A. Giermann, The liability of the carrier for bill of lading information: the Hague and Haager-Visby rules , 2000, p. 16
↑ Chester B Mclaughlin, The Evolution of the Ocean Bill of Lading , in: Yale Law Journal vol. 35, 1925, p. 550
↑ Abraham Polak, Historisch-juridisch onderzoek naar den art van het cognossement , 1865, p. 24 ff.
^ Jean Marie Pardessus, Collection des Lois Maritimes antérieures au 18e siècle , 1839, p. 128
^ The Thomas Seldon Society, Select Pleas in the Court of Admiralty 1 , 1538, p. 61
^ Hastings College of the Law (ed.), Hastings International and Comparative Law Review , 1973, pp. 103 f.
↑ Timothy Cunningham, Law Dictionary , 1764, p. 112 f.
↑ II 8, § 1668 ff. APL
↑ House of Lords , Lickbarrow vs. Mason , 1794, 5 TR 683
↑ Art. 606 ff., 664 and 757 No. 8 ff. ADHGB
↑ RGBl. 1939 II 1049, last amended on December 21, 1979 by the protocol amending the international convention of August 25, 1924 for the standardization of individual rules on bills of lading in the version of the amending protocol of February 23, 1968
↑ Heiko A. Giermann, The Evidentiary Value of Bills of Lading and Estoppel , 2004, p. 34
↑ Rudolf Sachs / Rudolf Kamphausen, Guide to Foreign Trade , 1996, p. 72
↑ Rudolf Sachs / Rudolf Kamphausen, Guide to Foreign Trade , 1996, p. 72
↑ Heiko A. Giermann, The carrier's liability for bill of lading information: the Hague and Haager-Visby rules , 2000, p. 213
↑ Dietmar Ehrlich / Gregor Haas, Payment and Payment Security in Foreign Trade , 2010, p. 429

[1] Jakob Strieder , From Antwerp Notary Archives: Sources on German Economic History of the 16th Century , 1962, p. 181

[2] Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 230

[3] Johann Hinrich Röding, General Dictionary of the Navy , Volume I, 1794, p. 434

[4] Heiko A. Giermann, The liability of the carrier for bill of lading information: the Hague and Haager-Visby rules , 2000, p. 16

[5] Chester B Mclaughlin, The Evolution of the Ocean Bill of Lading , in: Yale Law Journal vol. 35, 1925, p. 550

[6] Abraham Polak, Historisch-juridisch onderzoek naar den art van het cognossement , 1865, p. 24 ff.

[7] Jean Marie Pardessus, Collection des Lois Maritimes antérieures au 18e siècle , 1839, p. 128

[8] The Thomas Seldon Society, Select Pleas in the Court of Admiralty 1 , 1538, p. 61

[9] Hastings College of the Law (ed.), Hastings International and Comparative Law Review , 1973, pp. 103 f.

[10] Timothy Cunningham, Law Dictionary , 1764, p. 112 f.

[11] II 8, § 1668 ff. APL

[12] House of Lords , Lickbarrow vs. Mason , 1794, 5 TR 683

[13] Art. 606 ff., 664 and 757 No. 8 ff. ADHGB

[14] RGBl. 1939 II 1049, last amended on December 21, 1979 by the protocol amending the international convention of August 25, 1924 for the standardization of individual rules on bills of lading in the version of the amending protocol of February 23, 1968

[15] Heiko A. Giermann, The Evidentiary Value of Bills of Lading and Estoppel , 2004, p. 34

[16] Rudolf Sachs / Rudolf Kamphausen, Guide to Foreign Trade , 1996, p. 72

[17] Rudolf Sachs / Rudolf Kamphausen, Guide to Foreign Trade , 1996, p. 72

[18] Heiko A. Giermann, The carrier's liability for bill of lading information: the Hague and Haager-Visby rules , 2000, p. 213

[19] Dietmar Ehrlich / Gregor Haas, Payment and Payment Security in Foreign Trade , 2010, p. 429