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So you know my name. I’m Gertjan van der Ziel. My credential is already on the screen. I have worked more than 20 years for a large shipping company. That’s why I was asked to make my presentation on the basis ofthe use of bill of lading. Because I am so familiar with the use of bill of lading, and I saw that it is very practical to show you on the basis of the bill of lading some differences between current law and the new Rotterdam Rules. You will hear that after my presentation there is possibility for questioning, but in principle I have a couple of questions to you as well. Am I allowed to put now and then questions to you? Then my first question is who has never seen a bill of lading? Please raise your hands. So everybody is familiar with B/L, yes? Ok that is wonderful. That is absolutely wonderful. I feel fine in your company.
Then my next question is if you look at this B/L, is this a negotiable B/L? I wait for the answer. (Eh, I answer your question. This B/L is a very big lading. The company who has the right to take delivery of the cargo, so this B/L has the option to add another company I think.) Ok, thank you. Thank you so much. You are right. On the heading at the right, you can see the heading of the B/L and in small print; it is said ‘non-negotiable unless consigned to order’. And this B/L, it is consigned to order. Eh, it is not consigned to order, so it is a non-negotiable B/L like you are.
And in the RR the term of B/L is not use anymore. And why is that? There are a lot of documents, transport documents around and different names. Sometimes they are commercial names and after they are not clear whether the document is genuine B/L or not. Therefore the RR uses the usual term, negotiable transport terms and non-negotiable transport terms. And the Rotterdam Rules provide provisions for non-negotiable documents with such special rules for non-negotiable documents that include the obligation for the consignees tosurrenderthe document. So under the RR and straight B/L, it is a non-negotiable document.
Then my next question for you: does this B/L include the obligation for the consignee that this document has to be surrendered in order to obtain delivery of the goods? It is a more difficult question. (SILENCE……) Anyone who like to give out his answer? (SILENCE……) from the silence, may I conclude that you are not sure whether it has to be delivered or not? (SILENCE AGAIN…..) Apparently you are not so sure. May I have the next seat for a moment? After you can see whether it has to be delivered in the tackle received clausewhere it is said in this b/l the safety container package or other units indicated in the box,and then you can after see the phrase that this document has to be surrendered for delivery of the goods, one of the original being surrendered the earliest standard point. The desperate is not included in this document. I think that double delivery has omitted to give such a clear rule. Because in some countries, a straight b/l has to be surrendered for obtaining deliveries of goods, for instance in England, and in China too. But in other countries, for instance in United States, a straight b/l needs not to be surrendered for obtaining deliveries of the goods. And because of this difference in the law, many carries leave it uncertain where such a document has to be surrendered. In the RR, this problem has been solved. Because it is of the essences of the whole security that the b/l system aims to provide that you have to be sure that the b/l has to be surrendered, yes or no. And in the RR they say that it is three b/l has to be surrendered when it is explicitly said so in the document itself. And when the document, that is not indicated like this document that it has to be surrendered, then there is no obligation for surrenderedthe document. So the Rotterdam Rules create certainty that obligate the carriers to provide the certainty in the document itself. So that each holder can just by reading the document know what theposition is. So far is the question about the document.
Then I would like to deal with the matter of who is the carrier. Let us assume that I have a claim against this carrier. Where do I have to send the claim to? To whom and to what address I have to send the claim? In the Rotterdam Rules it is said that the name and the address of the carrier has to put in the b/l. So under the Rotterdam Rules, OOCL has to put its address in the b/l as well. Then everybody knows where to go to get the name. My address would be to put the email address in the b/l as well for tracing and tracking purposes. The Rotterdam Rules emphasize transparences. In the liner today, in the container liner today, and also for entry of OLCC it is very easy to put the address in the b/l. But maybe it is more difficult in the bulk tramp. In the bulk trades today, the b/l are signed by the agent that is appointed by shipper. And such an agent signs on behalf of the master of the ship. And after such agent, that is not known exactly who the carrier is, it is known only the master.
Therefore, it is said in the Rotterdam Rules that if the name and the address is not put in the b/l itself, then the owner of the vessel will be regarded as the contract carrier. And the owner of the vessel is always easily pursuable because Iship registers or lloyd’s registers where I can find the name and address of the owner. So this is the way that the Rotterdam Roles provide orcredit as to the question who is the contract or carrier. (1:26:35)
So the next question is who is in this b/l the shipper? So that is not a too difficult question. Shipper in this b/l is China Trans international co., Ltd. But a more difficult question, a very difficult question is: is the shipper mentioned in the shipper box always the contractual shipper of the carrier? I may refer to the definition of shipper in the Rotterdam Rules which that I … What I questioned was whether the shipper is always the person mentioned as shipper in the document. And that respect that I would prefer to the definition. of shipper saying that a shipper means a person that enters into a contract of carriage with the carriers. So according to the Rotterdam Rules, shipper is the contractual shipper. Then I pose the question again is the person mentioned in the shipper box always the contractual shipper? Again I am quite happy to get the right answer. Because not always the person mentioned in the shipper box is the contractual shipper. The Rotterdam Rules introduce a new notion namely the documentary shipper. The documentary shipper may not be the contractual shipper, but maybe for instance an FOB seller. (01:30:22) Because I have only half an hour, I will not deal with the whole system. But be aware that the Rotterdam Rules make a distinction between the documentary shipper and contractual shipper. But both have the same rights and the same obligations. The only difference is that when the contractual shipper is not the holder, then the contractual shipper has not the rights of a holder. And in certain case the documentary shipper has the rights of a holder. And because the documentary shipper often is the FOB seller; he needs under the control of sale, he needs the rights of a holder. So the Rotterdam Rules take fully into accounts that under the fob sales sometimes another person other than the contractual shipper need the b/l. The Rotterdam Rules does it through another method in another manner than Article42 of the Chinese Maritime Code. In the 7th CMIconference last week, I made a paper on this subject. And this paper will soon be published on the website of CMI so you can read the complete system of the Rotterdam Rules there.
As the next point I would like to rush through the obligations of the shipper. You will find in Chapter 7, starting with Article 27, the obligations of the shipper. In article 27, it is said that the goods must be presented by the shipper ready for carriers and able to withstandthe carries. And the stowage in the container must be done by the carrier probably and carefully. And then in article 28, it is said that if the shipper doesn’t know how he should stow the goods in the container, he may ask the carrier and the carrier must instruct the shipper how to do so, which is also a very practical rule that answers safety atship. in article 29,it is provided the shipper has to provide to the carrier, proper information, instruction and documents. In article 31, save to same is in respect of compilation of document. Article 32 refers to the special obligation in respect of the dangerous goods. Of course, the shipper has not only the obligations, he has various rights as well. The most important right of the shipper is in control of the goods during the carriage. This right of control is extensively dealtwith in chapter 10. It is said that the right of the control is transferable right. So the shipper may make another person for instance a consignee, a bank in control of the goods. And if it is a bank, on the basis of the Rotterdam Rules, it is in control of the goods, then the bank may be certain about the validity of the rights the bank may have on the goods. That is important because in the many jurisdictions it pleads that it is not valid that he is not in control of the goods. So also this is very important point of the Rotterdam rules, it provides certainty for the third party such as bank. In addition, the provisions in respect of transferring right of control of goods may fall on the basis of Ecommerce systems, because it is electronically easier to transfer the right of control than electronically transfer the negotiable documents. Because of time restraints, I cannot further tell you about this, but it is an example that RR look into the future and try to provide a way for the future transportation business.
Another right of the shipper or holder is to obtain delivery of goods at the end of the carriage. The consignee under the RR is defined as the person entitled to receive the goods. The Rotterdam rules include extensive rules on delivery the articles 43 to 49. Including the rules for when there is no consignee or the consignee does not surrender the document. These are currently making your problems impractical, and the RR at least try to do something on it. I like to refer to the B/L again, I dealt with the shipper’s box, I dealt with the consignee box and now I come to the notify box. The RR do not include the obligation of the carrier to send a notice of arrival. Why not? Because the RR tries to give solutions for practical problems and in respects of notice of arrival there is no practical problem at least no problem at the porter’s. This practice of sending a notice of arrival is so much needed for both of the carrier and of the consignee that the various conventions thought that the legal rule is not needed. Then I turn to the next box, “pre-carriage by” and that box is left empty. So this B/L is not related to multimodal carriages or to transshipment cargo. It is stating port-to-port business. Because the place of the receipt is Shanghai, port of loading is Shanghai, port of discharge is Columbus, place of delivery is Columbus, so we are talking here about port-to-port carriages. But if in this document the place of receipt would have been a different place than the port of loading or the port of discharge would have been a different place than the port of delivery, then the carriage may have been multimodal carriages. And then RR also would have applied to the inland part of the carriages. So it can be concerned that the RR apply to all matter of maritime context whether it is all aspects or whether it is only a context by sea or whether they are under the same context also include an inland part. This means that in cases one of these commercially not desirable that the inland part is subject to the same legal version, then the maritime part then the commercial part is left conclude two different contexts. So the matter to include the inland part is under the RR and matter of convenience to parties, but it is commercially not desirable to do so but is always allowed to make too different context. Then moving to the next box, FCL, that means full container load and this is a transport condition not dealt with the RR and with the sort that was not immediate to deal with that, this is an establish practice and in our field it is sufficient declare and practice. I may note that in the definition of goods the container is excluded. It is very important, for limitation purposes, if the weight limitation is the elephant yard stake then because the container is excluded than the definition, the weight of the container does not count for limitation purposes, which I think is a fair and practical rule. Then the next export expression CYCY, means that the container yard contain the yard. They under the RR have clearly to do with the period of the responsibility of the carrier. And the description of the period of the responsibility of the carrier, you will find in Article 12. There is in the RR no definition of receipt of the cargo, and no definition of the delivery of the cargo. But it is allowed to agree on the exact time and the exact location of the receipt or the delivery, so instead of definition the RR make receipt and delivery a contractual matter. So when here in the document CY as the receipt means that the period of the responsibility of the carrier begins when the container enters the terminal. And the period of the responsibility of the carrier terminates when the container leave the terminal and the discharge port. However the RR leaves a room for customs of the port. In some ports, it is custom for container receipt that the maritime carriage begins when the container is placed in the outgoing stack in the loading port (of containers at the terminal). And in such case, the responsibility of the carrier may terminates when the container arrive in the discharge port at the factory. Another example of the accept timing of delivery you can find in the oil today while the bill said that the period begins when the cargo buses ships manifold. So for all these practical reasons, the RR reframe from making a phiolethical definition of the receipt and a definition of delivery but instead it says well the cargo is whole flow and it is up to the patry that besides moment that the period of one person ends and the period of one person begins and that is a contextual matter and not a matter of a definition. And in this oocl B/L it said CYCY but it also includes a tackle to tackle clause. You can see the backside, in the left column and the four “it is said port-to-port transport is to carry the port-to-port transport responsibility of any of the carriers that follows them and the period is defined from the beginning of loading until the end of discharge. And you can see that the back clause of this side conflict with the CYCY condition. So OOCL has created here an alternate. Under the RR it is still possible to contract to T-to-T. But then you have to define the period as T-to-T you should not say CYCY. So in my feel, under the RR oocl as them as wrong here it is either T-to-T or then you have to on the front of the B/L to say it is T-to-T or it is CYCY but then on the back of B/L you should take that into account, it is either the one or the other both are possible under the RR but this is a confusing one.
And then if I still have some time, then I like to go to the description of the goods. The goods in this case is 915 cartons of bicycle parts and the weight is mentioned as well. In addition, there is a reference to the sales contract where it is said that the goods is sold by FOB China, and the reference to L/C number. First I would like to refer to the evidential value of all the data. And you will find rules of evidence in Article 41, it makes distinctions between non-negotiable documents, negotiable documents and non-negotiable documents required to present at the delivery, that is long phrase of straight B/L, where it is said that negotiable documents can be contractual evidence. You should know it is not the same with the Visby rules. Under the Visby rules, a negotiable document is conclusive evidence in respect of description of goods. While under Rotterdam Rules, negotiable documents can be conclusive evidence in respect of all particulars that are included in the documents. So in this document, the reference to INCOTERMS and to L/C No. is conclusive evidence. My recommendation is that carriers should try to avoid including in bills of lading, too much details about the goods, only details that of important to the carriers itself should be included, but the reference to the L/C No. isimportant to the carriers. If the carriers include too many details for instance, a wrong L/C No., it may be liable for such a mistake. Then Article 41, the rule of evidence in respect of straight B/L, which is said that straight B/L is also conclusive evidence when it is in hands of consignee. This was a matter of uncertainty in some countries this rule existing, in other countries it does not exist. Then the rule of evidence in respect of non-negotiable document, this was a matter that was discussed with UNTITRCLA because in a lot of countries, non-negotiable document is preferential evidence only while in other countries, some aspects some buyers are protected, who rely on the detail included in non-negotiable document. For instance, that is case under the US law and under the Scandinavian law, a buyer who relies on the detail on the description of goods in the non-negotiable documents, in these jurisdictions such buyer is protective. In UNTITRAL we are free to compromise that in principle non-negotiable document is preferential evidence, unless a buyer relies on the details in the documents that provided by the carrier. So in such a case, a carrier is not allowed to produce contractual evidence against the detail he put in the document. Thus in respect of particulars that are furnished by the shipper, for example the description of goods, a carrier is allowed to produce contractual evidence.
Then the next matter is that the B/L also includes qualified clause, in RR, it is said “shipper’s load and count and container’s seal”. It is said that in the heading of goods descriptions, particulars are declared by the shipper but not by the carrier. In Article 40 of RR, there is a regulation of this clause. I give you a summary of this article, in respect of non-containerized goods, this clause are varied when the carrier are physically practicable or commercially reasonable means of objecting. This is different from the H/R or the Visby rules because that is not reasonable means of objecting. But under the RR, it is physically practicable or commercially reasonable. Example is for physically practicable in respect of bulk goods like oil or grain while the carrier hardly has the possibility to see the goods. Another example said in UNTITRAL to be in the middle of night, chamber is loaded and it is not reasonable for tallyman on deck to check the number of cargo. And commercially reasonable means when loading it is expensive to check and tally the goods, which is not commercially reasonable doing itself. So In respect of non-containerized goods, the RR provides practicable and flexible rules here. And the further rule in Article 40 is in respect of contents of containers. In respect of contents of containers, clause is always varied when the carrier actually inspect the goods.
So this make the end of my presentation, I want to say, further on the back of B/L, there are a lot of contractual clauses that I mentioned in RR as well, some I always literally think over on RR other with substantial rules. But many in small print at the back of B/L, you can find in some way or another in RR. The most important similarity between the back of B/L or the RR is the carrier’s liability for multimodal carriage. Article 24 in RR is almost the same as in the back of B/L of OOCL. And in my experience, clause 4-2 in B/L of OOCL is the same as that of all B/L in container carriers. So almost all container carriers have the same liability clause on multimodal carriers. And this rules are included in RR. So that ‘s it for the moment. Now open for the questions. |
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