Charge slip

A bill of lading is in the inland waterways used securities in which the located carrier committed to the cargo surrendered to those who gave him the bill of lading (ie, to the person who the bill of lading in submitting property has).

General

If trade goods are transported by ship , they cannot simply be taken "on board ". Rather, the carrier has to issue a freight document, which is called a loading note in inland shipping and a bill of lading or sea waybill in maritime shipping . These securities are related to one another and confirm to the sender of the merchandise that they have been taken on board by the carrier and legitimize the sender as the owner of the goods. Anyone who presents these shipping documents to the carrier at the port of destination is deemed to be authorized to receive the goods. All three securities certify a claim for surrender to movable property and at the same time replace the goods themselves in such a way that they can be accessed by handing over the loading note . That is why these papers are also called traditional papers ( § 448 HGB ). In foreign trade, the loading note is an accompanying document .

species

The Act provides in § 363 para. 2 HGB which acts as the charging warrant a gekorenes Order Paper before which initially no order clause has and therefore without this order clause to the registered securities heard. It only becomes an order paper by adding an order clause.

With regard to its portability, a distinction is made between the following types of loading note:

Rectal loading slip ( name paper ): This is used in inland shipping. The authorized recipient is named by name.

Order loading slip ( order paper ): This can either be issued to an order from a named recipient or only to an order.

Bearer loading note ( bearer paper ): If the loading note is neither issued to a specific recipient nor to an order, the person who has the loading note and presents it is legitimized.

Content and effectiveness

To this end, one as a target data to understand enumeration in § 443 HGB in conjunction with § 408 HGB. According to Section 444 of the German Commercial Code (HGB), the loading note establishes the - rebuttable - presumption that the cargo and its packaging were in good external condition when the carrier took over and that the number of packages and their symbols and numbers match the information on the loading note. A reversal of the burden of proof is associated with this presumption . Because according to § 292 ZPO , the existence of the cited facts can be assumed until the contrary is proven.

Missing information does not lead to the ineffectiveness of the loading note from the outset. However, information on the type of goods, the number of pieces of freight and the gross weight, the delivery point and the person of the carrier are essential. If these are missing, there is no valid loading note, as there is no legally effective issuing contract . Information on the person of the sender is required if the loading note is without naming an order ( Section 443 (2) sentence 2 HGB). If, even with reference to Section 443 (2) sentence 2 of the German Commercial Code (HGB), it is not possible to identify who is to be authorized from the loading note, the order warehouse receipt must be reinterpreted as a bearer warehouse receipt. Failure to name the recipient in the case of rectal loading notes, on the other hand, constitutes an obstacle to effectiveness. In favor of the legitimate owner of the loading note, it is assumed that he is the person entitled from the loading note (Section 444 (3) HGB).

transmission

The loading note can

in the case of the rectal loading slip, are transferred by assigning the delivery claim in accordance with § 398 and § 952 BGB ;

are transmitted in the order loading note by (possibly uninterrupted chain of) endorsement (s), so belongs (like the bill of lading) to the approved order papers according to § 363 HGB. In the inland shipping sector, some also refer to the loading note directly as an (inland) bill of lading. When issuing to order, the legitimizing chain must go back to the sender named in the loading note ( Section 444 (3) No. 2, 2nd alternative HGB new version in conjunction with Section 443 (2) sentence 2 HGB);

when holder bill of lading through the transfer of ownership by §§ 793 et seq. , §§ 929 et seq. are transmitted BGB; thus an acquisition in good faith is also possible . It is even possible to acquire a stolen or lost loading note in good faith ( Section 935 (2) BGB).

Signing / making out

The sender can ask the carrier to sign a loading note after taking over the goods. it is sufficient to sign it by print or facsimile stamp ( Section 443 (1) sentence 2 HGB). It is usually made out in an original and a copy, which remains in the hands of the carrier instead of a bill of lading as an accompanying letter. When the law reforming maritime trade law came into force on April 25, 2013, the possibility was created that loading notes can also be created and sent in electronic form. A statutory ordinance - yet to be issued - is to regulate further details ( Section 443 (3) HGB).

meaning

The loading note is at the same time confirmation of receipt , promise of transport , value paper ( traditional paper ), evidence of the conclusion of a freight contract and promise of delivery against return of the original.

literature

Thomas Wieske : Transport law recorded quickly. 3rd edition, Springer, Berlin 2012, ISBN 978-3-642-29725-0 .
Olaf Hartenstein, Fabian Reuschle (ed.): Handbook of the specialist lawyer for transport and forwarding law. 3rd edition, Verlag Carl Heymanns, Cologne 2015, ISBN 978-3-452-28142-5
Adolf Baumbach , Klaus J. Hopt : Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law). 37th edition, Verlag CH Beck, Munich 2016, ISBN 978-3-406-67985-8
Ingo Koller : Transport law. Comment. 9th edition, Munich 2016, Verlag CH Beck, 978-3-406-70113-9 (commentary on §§ 443 ff. HGB).

Web links

Texts of the above Laws in the Internet portal “Laws on the Internet” of the BMJ and Juris

Individual evidence

↑ The law on the reform of the maritime trade law (in force since April 25, 2013) also changed the regulations on the loading note in the HGB. The loading note is now regulated in §§ 443 ff. HGB (until April 24, 2013: §§ 444 ff. HGB old version)
↑ Olaf Hartenstein / Fabian Reuschle, Handbook of the specialist lawyer for transport and forwarding law , 2012, chap. 1, marginal number 122/123 with further references (still on the old Section 444 (2) sentence 2 HGB)
↑ Olaf Hartenstein / Fabian Reuschle, Handbook of the specialist lawyer for transport and forwarding law , 2012, chap. 1, marginal no. 118 mwN

[1] The law on the reform of the maritime trade law (in force since April 25, 2013) also changed the regulations on the loading note in the HGB. The loading note is now regulated in §§ 443 ff. HGB (until April 24, 2013: §§ 444 ff. HGB old version)

[2] Olaf Hartenstein / Fabian Reuschle, Handbook of the specialist lawyer for transport and forwarding law , 2012, chap. 1, marginal number 122/123 with further references (still on the old Section 444 (2) sentence 2 HGB)

[3] Olaf Hartenstein / Fabian Reuschle, Handbook of the specialist lawyer for transport and forwarding law , 2012, chap. 1, marginal no. 118 mwN