1 The topic
When a vessel is on a voyage or time charter, bills of lading will normally be issued for the cargo which is to be carried: either one for the total cargo, or several bills – each for a distinct part of the cargo. The use of the traditional bill of lading has, however, gradually lessened in favour of the sea way bill. The purpose of this article is to analyze some legal aspects of the two documents, and in particular: who is legally bound by them? For the sake of simplicity we assume here that the chartered vessel is engaged in liner service. This means that the original promise of cargo transportation is given by the charterer (the line), and further we assume that this promise is evidenced by a booking note signed by both the line and the cargo side (the sender).
The use and consequences of using the bill of lading are fairly well regulated by the Maritime Code 1994 (the MC),(1) The Maritime Code of 24 June 1994 no. 39 is translated and published in MarIus no. 435 (2014). This unofficial translation is used in this article. The quotations from the preparatory works to the Code and from judgments have been translated by the author. whereas the sea way bill is only addressed in two sections.
One common characteristic feature, which should be mentioned at the outset, is that both the bill of lading and the sea way bill are considered as evidence of a previously concluded contract, cf. MC Section 292 paragraph one and Section 309 paragraph two. As already indicated, in the liner trade this contract is (usually) the booking note.(2) This means that both sides may argue that the bill of lading or the sea way bill is not in conformity with the booking note: a date or the freight rate is wrong, an exception has been forgotten, etc. The ordinary rules on evidence are applicable; there is no qualification (with e.g. words like “clearly” or “without doubt”). However, it must be expected that the burden of proof is somewhat heavier when the line argues that the bill which it has formulated and signed in error does not protect the line, as envisaged in the booking note. And conversely when the shipper has filled in the document and presented it for signature.
Due to the historical order of development of the documents and the extent of legal regulation, it is the bill of lading that requires our first attention and has the highest number of words in the article.