2.1 The simple situation: the line is the owner of the carrying vessel
Naturally, the rules of the MC are primarily aimed at the situation where the line is the owner of the carrying vessel. In these circumstances, the cargo is delivered to the line by the party who has the contract with the line (the sender, who is, e.g., a cif-seller) or by someone having a contractual relation with the sender (the shipper, who is, e.g., a fob-seller). In the latter case, it follows from the line’s contract with the sender that the line is obliged to accept the cargo and transport it (see, however, below).
According to general principles of contract law, the person delivering cargo to the vessel is entitled to some kind of receipt.(1) Se. e.g., Augdahl, Den norske obligasjonsretts almindelige del (5. ed. 1978) p. 57 and p. 164, and Hagstrøm, Obligasjonsrett (2 ed. 2011) p. 215. The MC has more specific rules on this point in Section 294 paragraph one:
“When the carrier [in our con the line] has received the goods, the carrier shall at the request of the shipper issue a received for shipment bill of lading.”
Paragraph two then states that this received for shipment bill of lading may later on be substituted by an ordinary on board bill of lading. The important feature is that the shipper – who is not necessarily the sender – is entitled to a bill of lading, and the contents of such a document and its legal effects are stated in the MC (on some of the details, see below). The obligation to issue a bill of lading rests on the line, in its capacity as carrier.
It is remarkable that although the MC defines the shipper (Section 251), and also says that the shipper is entitled to have a bill of lading (Section 294), it has no provision as to who is or may be a shipper without being the sender. Has the sender the right to nominate anyone as shipper? And when and how should such decision be notified to the carrier? Furthermore, a standard booking note, such as CONLINEBOOKING 2000, has no box for shipper, but one for “Merchant” – a concept that is defined in clause 1 as including “the shipper, the receiver, the consignor, the consignee, the holder of the bill of lading, the owner of the cargo and any person entitled to possession of the cargo”. The document gives, however, no indication as to who the shipper is or may be.(2) In Falkanger, The concept of shipper in sea carriage law – with some deviations to other modes of transport, SIMPLY 2014 (= MarIus no. 456, 2015) pp. 31 et seq. it is stated that there is no definition of who the shipper is as regards Sect. 294 and that one way of explaining that the shipper who is not the sender is nonetheless entitled to a bill of lading, is that the sender - directly or presumably – has transferred this right to the shipper. The better view, however, is that the shipper’s position is not a right derived from the sender, but is given him by law, and that this obligation on the part of the carrier arises on receiving the goods for transportation” (p. 40).
It should be added that the standard voyage charter forms also do not have a box for the insertion of the name of the shipper.
At the port of discharge the situation is simpler: a bill of lading is a negotiable document that can, of course, be transferred. And fulfilling the obligation to transport and deliver is subject to the presentation of the document. It is sufficient here to quote the MC Section 302 paragraph two:
“The person who presents a bill of lading and, through its wording or, in the case of an order bill, through a continuous chain of endorsements or through an endorsement in blank, appears as the rightful holder, is prima facie regarded as entitled to take delivery of the goods.”