Week 9
Enter Documents
• Commercial invoice
• Export licenses
• Transport document: Bill of Lading, Air Waybill…
• Electronic Documents
• Multimodal Transportation
• Negotiable v. Non Negotiable
• Article 30 CISG states that the seller must hand over any documents
relating to the goods "as required by the contract and this Convention".
Because the CISG nowhere stipulates what documents must be handed
over, it is to the contract that one must look, as well as any usages that
would govern the parties.
• Article 58 CISG:
(1) If the buyer is not bound to pay the price at any other specific time, he
must pay it when the seller places either the goods or documents
controlling their disposition at the buyer’s disposal in accordance with the
contract and this Convention. The seller may make such payment a
condition for handing over the goods or documents.
• Thus, if the buyer wants to have the right to withhold payment of the price
until it receives a particular document or documents from the seller, it
must ensure that that document is identified in the contract as one that
the seller must present.
• In the absence of explicit agreement by the parties, the buyer would not be
entitled to withhold payment if the seller presented the "documents
controlling the disposition" of the goods, such as a bill of lading, but not
the insurance policy or certificate. (minimum requirement under article58)
• A buyer on CIF or CIP terms is entitled to withhold payment of the
purchase price until it receives a conforming insurance policy or certificate,
not because of Article 58 CISG, but because the contract identifies the
insurance policy or certificate as a document that must be presented by
the seller.
Note:
• If the buyer has agreed to pay the purchase price by providing a letter of
credit, the seller must present all of the documents stipulated in the letter
of credit, whether or not they control the disposition of the goods, and
those documents must be accepted by the nominated or confirming bank
as conforming to the credit before the seller gets paid.
• As applicant under the letter of credit, the buyer often makes payment
conditional upon presentation of many kinds of document that do not
control the disposition of the goods, such as commercial invoices, survey
certificates, certificates of origin, packing lists, and so on. By agreeing to
payment under a letter of credit, the seller therefore accepts that it must
present all of these documents before it is entitled to be paid. Thus, Article
58(1) CISG only has practical significance when payment is to be made
other than by letter of credit.
Documents that control disposition of goods
Negotiable bills of lading, whether issued by an ocean carrier or an intermediary such as a freight forwarder, multimodal transport operator
(MTO) or non-vessel-operating common carrier (NVOCC);
Straight (non-negotiable) bills of lading;
The consignors copy of an air waybill;
The consignors duplicate copy of a rail consignment note;
The consignors duplicate or first copy of a road consignment note;
Road and rail bills of lading in North America;
Warehouse receipts or warehouse warrants
Bill of Lading Art 1 Hamburg
• 7. "Bill of lading" means a document which evidences a contract of
carriage by sea and the taking over or loading of the goods by the
carrier, and by which the carrier undertakes to deliver the goods
against surrender of the document. A provision in the document that
the goods are to be delivered to the order of a named person, or to
order, or to bearer, constitutes such an undertaking.
Bill of Lading Art. 14 Hamburg
• 1. When the carrier or the actual carrier takes the goods in his charge,
the carrier must, on demand of the shipper, issue to the shipper a bill
of lading.
• 2. The bill of lading may be signed by a person having authority from
the carrier. A bill of lading signed by the master of the ship carrying
the goods is deemed to have been signed on behalf of the carrier.
• 3. The signature on the bill of lading may be in handwriting, printed in
facsimile, perforated, stamped, in symbols, or made by any other
mechanical or electronic means, if not inconsistent with the law of
the country where the bill of lading is issued.
Content of the bill art 15
• 1. The bill of lading must include, inter alia, the following particulars:
• …………..
• 2. After the goods have been loaded on board, if the shipper so
demands, the carrier must issue to the shipper a "shipped" bill of
lading which… must state that the goods are on board a named ship
or ships, and the date or dates of loading.
Reservations art 16
• 1. If the bill of lading contains particulars concerning the general nature,
leading marks, number of packages of pieces, weight or quantity of the
goods which the carrier or other person issuing the bill of lading on his
behalf knows or has reasonable grounds to suspect do not accurately
represent the goods actually taken over or, where a "shipped" bill of
lading is issued, loaded, or if he had no reasonable means of checking such
particulars, the carrier or such other person must insert in the bill of
lading a reservation specifying these inaccuracies, grounds of suspicion or
the absence of reasonable means of checking.
• 2. If the carrier or other person issuing the bill of lading on his behalf fails
to note on the bill of lading the apparent condition of the goods, he is
deemed to have noted on the bill of lading that the goods were in apparent
good condition.
Indemnity art. 17
• 2. Any letter of guarantee or agreement by which the shipper
undertakes to indemnify the carrier against loss resulting from the
issuance of the bill of lading by the carrier, or by a person acting on
his behalf, without entering a reservation relating to particulars
furnished by the shipper for insertion in the bill of lading, or to the
apparent condition of the goods, is void and of no effect as against
any third party, including a consignee, to whom the bill of lading has
been transferred.
Indemnity and Fraud
• 3. Such letter of guarantee or agreement is valid as against the
shipper unless the carrier or the person acting on his behalf, by
omitting the reservation referred to in paragraph 2 of this article,
intends to defraud a third party, including a consignee, who acts in
reliance on the description of the goods in the bill of lading. In the
latter case, if the reservation omitted relates to particulars furnished
by the shipper for insertion in the bill of lading, the carrier has no
right of indemnity from the shipper pursuant to paragraph 1 of this
article.
• 4. In the case of intended fraud referred to in paragraph 3 of this
article the carrier is liable, without the benefit of the limitation of
liability provided for in this Convention, for the loss incurred by a
third party, including a consignee, because he has acted in reliance on
the description of the goods in the bill of lading.
Choice of Law…
Again!!
Law of Marine Transport …et al
• The Hague Rules
• The Hague- Visby Rules
• Hamburg Rules
• Rotterdam!
