Class 891 DOCUMENTS OF TITLE.docx

1、Class 891 DOCUMENTS OF TITLEDOCUMENTS OF TITLE IN CARRIAGE OF GOODS BY SEA: PRESENT STATUS AND POSSIBLEFUTURE DIRECTIONSCaslav Pejovic.Copyright (c) 2001 Sweet and Maxwell Limited and ContributorsSubject: SHIPPINGKeywords: Bills of lading; Carriage by sea; Documents of titleAbstract: Notion of docum

2、ent of title, bill of lading as negotiable or transferable document of title, effect of transfer of bill of lading and other transport documents which could possibly be recognised as documents of title.*461 IntroductionCarriage of goods by sea is carried out on the basis of a contract of carriage be

3、tween the carrier and the consignor. This contract usually follows the contract of sale and serves to enable delivery of the goods between seller and buyer. A contract of carriage is not necessarily concluded in writing, but normally requires evidence. In practice, a contract of carriage is usually

4、evidenced by a transport document issued after the goods have been delivered by the consignor to the carrier.Transport documents contain particulars about the parties to the contract of carriage, the goods, and the terms and conditions of carriage. They may serve as evidence not only of the contract

5、 of carriage, but also of the receipt of goods. However, the role of transport documents can be more complex than simply acting as evidence. Some transport documents have the function of documents of title, which means that they are able to represent the goods and entitle their holders to demand del

6、ivery from the carrier. This function of transport documents plays an important role in overseas sales, enabling the seller to sell the goods in transit while the physical delivery is not yet possible. The document of title ensures the buyer that the goods will be delivered to him once the ship arri

7、ves at the port of destination. On the other hand, the document of title enables the seller to retain control over the goods until the buyer pays the price, since the payment is usually effected against documents. Under letters of credit the banks also accept to pay the price to the seller as benefi

8、ciary in exchange for a document of title which serves as a security for debt.Documents of title are one of the most sophisticated legal inventions. The law has defined their characteristics and functions, and hence which documents can qualify as documents of title. In principle, a document can be r

9、ecognised as document of title only by statute or by general custom. Presently, under English *462 law, among transport documents only bills of lading are recognised as documents of title.Bills of lading are ancient mercantile documents and are well established as documents of title both by the stat

10、ute and by the custom of merchants, while other transport documents are of modern invention and no custom of merchants relating to them has been established. The traders have sought to secure the creation of more documents of title, which shall have the same attributes under law as those possessed b

11、y the bill of lading. On the other hand, since the use of documents of title involves various risks of fraud, the legislators are reluctant to allow more documents of title.The purpose of this paper is to examine first the notion of a document of title; secondly, the rights which are transferred by

12、the transfer of the bill of lading, as the only transport document with undisputed status as document of title; and thirdly, to investigate the prospect that, in addition to bills of lading, other transport documents can be recognised as documents of title.The Notion of a Document of TitleThe phrase

13、 document of title is a common term used to denote documents issued by a carrier or by a warehouseman acting as a bailee. FN1 The document of title is a written description, identification or declaration of goods issued by or addressed to a bailee which evidences that the person in possession of it

14、is entitled to receive, hold and dispose of the document and the goods it covers. The main purpose of documents of title is to facilitate transfer of rights in goods while they are in the custody of a carrier or warehouseman. After receiving the goods in his charge, the carrier or warehouseman actin

15、g as a bailee must issue a document which serves as a receipt for the goods and enables the person who produces the document to receive the goods. The document of title is transferable, which enables the goods to be disposed of while still in the bailees custody. The bailee is obliged to deliver the

16、 goods to the lawful holder of the document, whether he be the original holder or a transferee of the document. After delivery is made, the document ceases to be a document of title and it can only serve as evidence in case of dispute between the bailee and the bailor. By returning of document into

17、the hands of the bailee who has issued it, the circle is closed and the document has completed its role.Among different national laws there are differences as regards the features of documents of title and documents which are recognised as documents of title. Under English law, the shipped bill of l

18、ading has been recognised as the only document which always has the status of a document of title in sea carriage. Other *463 documents can become documents of title on proof of custom of merchants which must establish that the document is being used as a document of title. FN2 This means that the d

19、ocument, which is actually used in trade, must be negotiable and it must enable its lawful holder to obtain physical delivery of the goods by producing the document, as well as to dispose of the goods by transferring the document.In civil law too, there are documents corresponding to documents of ti

20、tle. Wertpapiere in German law, titres in French law, titoli di credito in Italian law, yuka shoken in Japanese law, etc. can be defined as documents of value which embody certain rights (such as the right to obtain delivery of the goods specified in the document, or the right on payment of a certai

21、n sum of money). FN3 They confer upon the holder the right to transfer these rights to third parties by transferring the documents.Bill of Lading as a Negotiable or Transferable Document of TitleThe bill of lading is a typical document of title. Thanks to its character as a document of title, the bi

22、ll of lading is invested with particular attributes of great practical importance commercially. This enables it to become one of the key instruments in international trade.The bill of lading is often referred to as a negotiable document of title, and there is some confusion as to whether the bill of

23、 lading is really a negotiable or is merely a transferable document. This is especially the case in English law. According to English law, bills of lading are not considered to be negotiable documents in their full legal sense, even though they possess some of the legal characteristics of negotiable

24、 documents, such as transferability by endorsement. FN4 In fact, what is meant is that they are transferable. The bill of lading does not have the essential characteristic of a negotiable document: the transferee of the bill cannot acquire a better title than that of a predecessor. If a bill of ladi

25、ng is stolen or endorsed without the shippers authority, a subsequent bona fide transferee cannot acquire the rights to the goods represented by the bill. The rule that a bona fide holder of a lost or stolen bill of exchange endorsed in blank or payable to bearer is not bound to look beyond the inst

26、rument, has no application to the case of a lost or stolen bill of lading. A finder or thief can give no title to bills of lading even in the case of a bill endorsed in blank.English law is based on the concept that the bill of lading represents the goods and therefore its transfer should not have g

27、reater effect than the transfer of what *464 it represents. Since the goods themselves are not negotiable, there is no reason why the bill of lading should be. Possession of a bill of lading cannot have a greater force than the actual possession of the goods. FN5 If a buyer has acquired the bill of

28、lading without having paid the price, and has endorsed the bill of lading to a third party, such third party, even if it has acquired the bill of lading acting in good faith for value, cannot acquire a valid title to the goods.It is obvious that in English law there is some confusion in the use of t

29、he terms transferable and negotiable. FN6 The distinction between transferable and negotiable documents is that a document is transferable when it can be transferred by one person to another, passing to the transferee the rights of the original holder but no more, while a negotiable document can giv

30、e to the transferee rights that are better or greater than the right of the transferor, provided that consideration is given for the transfer. Therefore, only negotiable documents are an exception to the rule that nobody can transfer to another person more rights than he has (nemo plus iuris ad aliu

31、m transferre potest quam ipse habet).The bill of lading therefore lacks the most important and characteristic element of negotiability: it may not give to a transferee a better title than that possessed by the transferor. The question which logically arises is whether this means that the bill of lad

32、ing is not a negotiable document. This is impossible to answer without an explanation of the character and functions of the bill of lading.The transferee for value, who takes a negotiable instrument in good faith and without notice of any defect in the title of his transferor, acquires an indefeasib

33、le right to the property in the instrument and to the benefits represented thereby. He acquires not merely possession but property. FN7 However, the bill of lading is not a negotiable document of title in the sense that it is able to carry title with it. Unlike a bill of exchange or promissory note, the bil