3.2 What is the binding effect of the sea way bill?
Usually, the sea way bill is issued by the line, as for bills of lading, and it is “evidence” of the booking note.
In other words: being bound by the sea way bill is, in this context, primarily a question of the evidentiary effect of the cargo description. The substantive rules on cargo liability are not changed, with a small exception for the right to demand a bill of lading, cf. Section 308 paragraph three.
The receiver, named either in the sea way bill or in a subsequent order from the sender, derives his rights from the sender. He may, therefore, argue that he is entitled to rely on the sea way bill, but in a dispute between the carrier and the receiver, both parties may contend that the sea way bill is not decisive.
The above covers the situation where the performing vessel is on charter to the line, and the sea way bill is issued and signed by or on behalf of the line. The only additional remark required is a reminder of the liability of the performing carrier, as laid down in Section 286.
Now we turn to the possibility of a sea way bill being issued by the performing carrier.
According to the MC, the shipper has the right to demand a bill of lading from the carrier, and we have seen that Chapter 13 places the obligation on the line as contracting carrier, while the rule in Chapter 14 is that the duty to issue a bill of lading rests on the performing carrier. The MC has no rules on the issuance of sea way bills. However, as stated above, general contract law entitles the shipper to demand a receipt, and it may be argued that in maritime transport such a receipt should comply with the modest requirements of Sections 308 and 309. The decisive factor is, however, that since the shipper is entitled to a bill of lading, he should have the right to demand a document that is less burdensome than a bill of lading, as seen from the carrier’s point of view.
We have also seen that a bill of lading issued by the performing carrier constitutes a contract of carriage between him and the shipper. Does the issuance of a sea way bill have a similar effect? The shipper is, e.g., a fob-seller.
The performing carrier has a full Chapter 13 liability (see Section 286), and the question is, therefore, of no practical interest unless the terms of the sea way bill deviate from those of Chapter 13.
If the sea way bill has more carrier-friendly rules, such rules will very often be contrary to the peremptory regime. Consequently, the practical situation to consider is whether a sea way bill with increased obligations binds the owner, or whether he is entitled to state that his liability is limited to what follows from the receipt declaration. It is submitted that the performing carrier is bound by what is stated in a document signed by him: if it is stated, as mentioned in an example above, that the unit limitation is 1 000 SDR, then the 667 SDR rule cannot be relied upon.
For bills of lading we have an explicit regulation in Section 325 paragraph one addressing the consequences of signing a bill of lading, but no similar stipulation regarding sea way bills. The different attitude is, no doubt, partly due to tradition, but can also be explained by the important, special rules connected with the bill of lading as a negotiable instrument. The obligation to issue such a document should have clear basis.