3.1 Introduction
A sea way bill, in contrast to the bill of lading, is a non-negotiable document, which the legislators found it unnecessary to regulate until the MC 1994, and even then, restricting this to only two sections. In Section 308 the sea way bill is said to have two elements: (i) it evidences a contract of carriage and the receipt of cargo for carriage, and (ii) it contains a promise to deliver the goods to the named receiver, albeit with the possibility for the contracting party (the sender) to decide that the goods shall be delivered to someone else.(1) This right may be waived, see below, and it ends when «the consignee has … asserted his or her right” (Section 308 paragraph two second sentence). Section 309 concerns the contents of the document: the identification of the parties, information on the goods received, the conditions of carriage and freight and other charges payable by the receiver. Furthermore, it is stated in Section 309 that both Section 296 paragraph three (regarding the signature requirement) and Section 298 (on the carrier’s duty to check the accuracy of the information given regarding the cargo) apply. And, finally, Section 309 deals with the evidentiary effects (as have already been indicated):
“Unless otherwise shown, the sea way bill shall be evidence of the contract of carriage and that the goods have been received as described in the document.”
The relationship to the provisions on the carrier’s duty to issue bills of lading is clarified in Section 308 paragraph three:
“A bill of lading can be demanded according to Section 294 unless the sender has waived his or her right to name a different receiver.”
This right to demand a bill of lading also exists after a sea way bill is issued and received by the sender or by a shipper where not the sender. The issuance of the bill of lading does not require redelivery of the sea way bill.(2) Compare ND 1960 p. 338 Bergen. In the underlying sales and payment agreements it may be stipulated that the right to change receiver is waived, and this is the reason why there is no right to demand a bill of lading when the possibility to name another receiver under the sea way bill is waived.(3) The question has been raised as to whether this restriction on the right to demand a bill of lading is in conformity with the Hague-Visby Rules has been raised, see Utgaard in MarIus 223 (1996) p. 25‑26.
The rules are based on delivery of the goods by the sender, see e.g. Section 309 on the contents of the document: the sender and the receiver must be identified, but the shipper is not included or referred to – in contrast to Section 296 paragraph one no. 4 on bills of lading. So, if a shipper who is not the sender delivers cargo to the line, his right to a sea way bill will depend upon the agreement between the line and the sender.(4) See above in 2.1 on delivery of cargo by a shipper who is not the sender in a bill of lading context. But this agreement cannot deprive the shipper of his right according to Section 294 to demand a bill of lading.
The paramount feature is that the contract evidenced by the sea way bill is a contract of carriage to which the “provisions of this Chapter [13] apply” (Section 252).