2.1 Like an elephant, a bill of lading is generally easier to recognise than to define. This chapter considers aspects of the definition of a bill of lading, and the related topic of classification into different “species” of bill. The subject is of more than academic interest, as a document may be a bill of lading for one purpose but not another, and whether a document is or is not a bill of lading may have important consequences. Furthermore, the correct classification of a document may be relevant to whether it is valid or acceptable for the purposes of the underlying sale contract or its financing through a letter of credit.
2.2 When considering the classification of bills of lading, some distinctions are legally significant, as they affect the legal rights and obligations attaching to the bill. Others are of commercial or only semantic significance, being descriptive of and suited to the particular trade in question. Examples of these “commercial” species of bills of lading are “liner” bills, “house” bills and “container” bills.
2.3 The dictionary definitions are not generally helpful.1 A bill of lading is a document.2 Generally it must be signed by, or on behalf of, the carrier by sea. Three common characteristics of a bill of lading are that (a) it constitutes a receipt for the goods shipped or received by the carrier, (b) it constitutes a document of title for such goods3 and (c) it contains or evidences the contract of carriage by sea relating to the goods.4 A document that has all these characteristics will almost certainly be a bill of lading, and a document that lacks any of them will rarely be; however, as the discussion in this chapter illustrates, there is no universally applicable definition of a bill of lading.
2.4 A review of definitions of bills of lading cannot be isolated from the historical context, which has been outlined in Chapter 1. The common law definitions must be considered in the light of the statutory developments in the law, particularly in English law, in the form of:
- (1) the Bills of Lading Act 1855;
- (2) the Hague and Hague-Visby Rules, as enacted in, respectively, the Carriage of Goods by Sea Acts 1924 and 1971; and
- (3) the Carriage of Goods by Sea Act 1992.
2.5 The tripartite function of bills of lading underlies both their importance and the complexity of the law relating to them. Being documents developed by mercantile custom to facilitate international trade, they formed an essential part of a mechanism for transferring both property in the goods and the right to enforce the contract of carriage. This transfer of property generally occurs by endorsement and delivery of the bill from one holder to another. A bill of lading is thus “negotiable” in the sense of being transferable, although it is not a negotiable instrument in the strict sense of being capable of giving the transferee a better title than the transferor has himself.5
2.6 The life of a “typical” conventional bill of lading6 might consist of:
- (1) issue by the carrier to the shipper and/or seller of goods;
- (2) indorsement by the shipper and delivery to the bank of the buyer of the goods, where it is presented to obtain payment against a letter of credit;
- (3) subsequent indorsement through the banking chain to the buyer; and
- (4) presentation by the buyer to the carrier at the discharge port. Upon delivery of the goods to the party entitled to them, the contract of carriage has been performed, and the bill (and any other bills in the set issued) become “spent” or “accomplished”.7
2.7 Legal issues that commonly arise are, first, whether a given document is a bill of lading for the purposes of the 1992 Act, secondly, whether it is a “bill of lading or similar document of title” within the meaning of the 1971 Act and the Hague or Hague-Visby Rules, and, thirdly, whether it is a bill of lading for the purposes of a sale contract or documentary credit that calls for one.
2.8 The definition of a bill of lading thus depends on the relevant context. Further, the question of whether a document satisfies the relevant definition depends on the substance of the document and not its form. A document describing itself as a bill of lading will not be one unless it has the necessary attributes. Conversely a document may be a bill of lading without those words appearing in it. The most common types of documents with which a bill of lading must be contrasted are receipts, waybills, delivery orders and warrants, charterparties and booking notes. The status of a bill of lading as a receipt for the goods, as a document of title and as a contract of carriage are dealt with respectively in Chapters 4, 6 and 7.
2.9 The rationale for limiting the definition of a bill of lading is that the terms of bills of lading often affect third parties ignorant of their content. Accordingly statutory or regulatory control of bills may be justified, whereas such control of other documents, such as charterparties, would be a less justifiable interference on freedom of contract.
2.10 Consideration of the nature of a bill of lading may be assisted by contrasting it with other types of document that may bear similarities to a bill of lading.
2.11 A document may on analysis be a receipt, without being a document of title or evidencing any contract. As such it may evidence a bailment, and even the terms of the bailment, but will not be a bill of lading.8 In this context problems may arise with the use of tankers as floating storage vessels or “motherships” holding parcels of cargo delivered to them and from them by feeder vessels but often moving little themselves and staying offshore outside national territorial waters. “Bills of lading” are customarily issued in relation to such ship-to-ship transfers, but in some instances may not contain or evidence contracts of carriage either at all or between different states.
2.12 A particular and important species of receipt is a mate’s receipt. In many instances the carrier will, when first taking possession of the goods, issue a mate’s receipt in respect of the goods. As the name implies, the document was, historically, issued by the ship’s mate, who would have evidenced the reception of the goods on board the vessel and then issued a mate’s receipt to acknowledge that fact. A mate’s receipt is generally exchanged for the bill of lading and charterparties frequently require that bills of lading issued are “in conformity with” the mate’s receipts.9
2.13 In legal terms a mate’s receipt
is not ordinarily anything more than evidence that the goods have been received on board.10
2.14 Depending on the terms of the mate’s receipt the document may be evidence of the condition of the goods when received. It is not necessarily evidence of a contract of carriage (although it may be11), but it is evidence of a bailment that may be on express or implied terms. It is not negotiable or a document of title, except in particular circumstances such as by custom of a port or trade.12 Benjamin suggests that a mate’s receipt may be a document of title in the wider statutory sense under the Factors Act 1889.13 Mate’s receipts are further discussed in Chapter 3.
A sea waybill is a document which contains or evidences an undertaking by the carrier to the shipper to deliver to the person who is for the time being identified as being entitled to delivery. Sea waybills are broadly similar to ‘straight’ bills of lading…A sea waybill is a receipt for the goods, but it is non-transferable and is not a document of title…The main advantage of the sea waybill is that, unlike a bill of lading, it does not have to be transmitted to the consignee in order for the goods to be surrendered by the carrier on arrival.16 It also has the advantage that the shipper can vary his delivery instructions to the carrier at any time during transit.
2.16 The principal difference between waybills and bills of lading is (or was) that the former were not thought to be documents of title, although they are generally documents evidencing a contract of carriage; and operate as receipts.17 Neither the Hague nor Hague-Visby Rules apply to waybills in the strict sense, although the Hamburg Rules do and much of COGSA 1992 does.
2.17 There are good commercial reasons why the parties may issue a waybill or receipt rather than a bill of lading.18 For example, the document may not be required as part of a commercial “arm’s length” sale transaction, such as where a shipper consigns goods to an associated company or a foreign branch, and thus has no part to play in transfer of property in the goods. The use of a waybill avoids the inconvenience to cargo interests of having to wait for the bill of lading to arrive with the consignee before the goods can be delivered.19 The contractual terms of a waybill are free of statutory control that may be imposed in the form of the Hague-Visby Rules rights and obligations.
2.18 A sea waybill is defined statutorily in COGSA, section 1(3).20 As discussed below,21 the so-called “straight” bill of lading has caused much difficulty in recent times. It is now established that it is a sea waybill and not a bill of lading for the purposes of COGSA 1992 and it is also a “bill of lading” and a “similar document of title” for the purpose of the Hague Rules.22
2.19 As is the case with bills of lading, there are many standard forms of waybill drafted to fit the needs of the trade or carrier using them.23
2.20 UCP 600 defines, for its purposes, a “non-negotiable sea waybill” in Article 21, which requires (by Article 21(a)(iv)) that this “consists of a sole original non-negotiable sea waybill…”, the key attribute thus being non-negotiability.
2.21 Bills of lading and waybills refer to a fixed quantity or weight of cargo.24 A problem will arise with a bill of lading if a buyer of a bulk cargo wishes to sell different portions of it to different receivers, and he wishes to provide a mechanism whereby the rights and obligations as to delivery of those portions are protected.25 In such circumstances, the bill of lading cannot be used on its own. Although sometimes this problem is sought to be overcome by cancelling the original bill and reissuing split bills of lading, this practice is not without difficulties.26
2.22 One solution is the use of a delivery order,27 which is a document that is generally neither a receipt for the goods nor a contract of carriage nor a document of title. It is thus unlikely to be confused with a bill of lading. Provision can be made in the underlying sale contract for tender of such documents instead of a bill of lading.
2.23 The terms “delivery order” and “delivery warrant” are used somewhat loosely to cover a range of documents relating to instructions or undertakings as to the delivery of cargo. These may include instructions by the seller or consignee of the goods to his agent at the discharge port, and these may be termed “merchant” delivery orders.
2.24 The only type of delivery order that has functions even remotely akin to the bill of lading is a ship’s delivery order that must have at least “some connection with the ship”.28 Such documents are either (i) documents29 issued by or on behalf of carriers while the goods are in their possession or under their control and that contain some form of undertaking that the goods will be delivered to the holder or to the order of a named person, or (ii) documents addressed to a carrier requiring him to deliver to the order of a named person, the carrier subsequently attorning to that person.30
2.25 In Waren Import Gesellschaft Krohn & Co. v Internationale Graanhandel Thegra N.V.,31 Kerr J. said of ship’s delivery orders that:
I do not think that it is necessary or desirable to attempt to define “ship’s delivery orders” exhaustively. They must, however, in my judgment, be documents issued by or on behalf of shipowners while the goods are in their possession or at least under their control and containing some form of undertaking that they will be delivered to the buyers (or perhaps to the bearer) on presentation of the documents. If they contain such an undertaking, then it appears to me to be irrelevant whether the documents were originally issued by the shipowners or their agents, or whether they began their life by being addressed to the shipowners or their agents with instructions to deliver to the buyers followed by a re-issue of the documents by the shipowners or their agents incorporating such an undertaking.32
2.26 At common law the rights of the holders of a ship’s delivery order were based on the concept of the shipowner attorning to the holder.33
2.27 As explained in the Waren case34 the two principal disadvantages of a delivery order as against a bill of lading are, first, that the document is not transferable (although some delivery orders are expressed in terms of an instruction to deliver to the bearer) and, secondly, that the document will not effect a transfer of contractual rights against the carrier.
2.28 A ship’s delivery order may contain an undertaking to carry and deliver the goods in which case this will give rise to liability for loss or damage during carriage. Alternatively it may contain an undertaking to deliver only, in which case there will be no such liability.35
2.29 A ship’s delivery order is now statutorily defined in COGSA 1992 for the purposes of that Act, by section 1(4).36 The beneficiary of such an order is given contractual rights of suit under section 2 of the Act, curing one of the main common law disadvantages of such a document.
2.30 An extended discussion of delivery orders is beyond the scope of this book, but they are analysed in some detail in Benjamin.37
2.31 A charterparty is defined in Halsbury’s Laws38 as:
a contract whereby an entire vessel or some principal part of her may be used or employed by the charterer for a voyage or series of voyages or for a period of time.
2.32 Bills of lading and charterparties (or at least voyage charterparties) share one common feature: they embody a contract of carriage. There are, however, two significant differences between a charterparty and a bill of lading. First, a charterparty will never constitute a receipt for goods and, secondly, nor will it constitute a document of title to goods. The two types of document have different commercial functions. Article V of the Hague Rules provides that the Rules shall not apply to charterparties39 and production of a charterparty will not be good tender under a sale contract.
2.33 The distinction between a charterparty and a bill of lading is usually obvious from a quick perusal of the document, but may be blurred in contracts of carriage that are hybrids, typically relating only to part of a ship. At least for the purposes of establishing in rem jurisdiction under section 21 of the Supreme Court Act 1981, a “slot charter” for the use of limited space aboard a vessel may be a charterparty.40
2.34 In The Happy Ranger41 the Court of Appeal rejected a submission that a contract for carriage of a heavy reactor was a charterparty, notwithstanding that it contained terms that were to be found in voyage charterparties. The emphasis by the court on the fact that the document was entitled “contract of carriage” is perhaps misplaced, partly because substance is more important than form and partly because a charterparty is often a contract of carriage.
2.35 The term “booking note” is a loose one that may cover a number of different types of contract. Some, such as the common “Conline” form,42 are contracts of carriage and incorporate terms that are appropriate for a bill of lading (and even refer to “this Bill of Lading”) but are not bills of lading. They provide for the terms to be superseded on the issue of a bill of lading.43 Others may be much simpler and may be contracts for carriage rather than contracts of carriage.44 In the former case the obligation is to procure or arrange carriage and the prime function of the note is to record the booking of space aboard the (or a) vessel.45 The relationship between such contracts and bills of lading subsequently issued is of some complexity and is discussed in Chapter 7.
2.36 Bills of lading are frequently described as being either “negotiable” or “non-negotiable”. Although the terms “negotiable” and “non-negotiable” are used almost universally in the context of bills of lading, its use is frequently not legally accurate, as explained below. Much of the confusion on this issue arises from the imprecise use of terminology such as “negotiable”, “transferable” and “document of title”. There is an important distinction between negotiable and non-negotiable bills, particularly because a “non-negotiable” bill is not a bill of lading at all for the purposes of COGSA 1992.46 The House of Lords’ decision in The Rafaela S47 has to some extent clarified the law on when a bill of lading is “negotiable” or not. The decision is discussed under the heading of “straight” bills of lading.
2.37 A bill of lading that is “negotiable” is not a negotiable instrument in the true sense. Its essence is that its transfer by indorsement and delivery operates to transfer the symbolic possession of the goods, and the carrier is entitled to deliver to the party to whom the bill of lading has been so transferred. So
It is well settled that “Negotiable”, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a better title than the transferor has got, but it can by endorsement and delivery give as good a title. But it has never been settled whether delivery of a non-negotiable bill of lading transfers title or possession at all. The bill of lading obtains its symbolic quality from the custom found in Lickbarrow v Mason and that is a custom which makes bills of lading ‘negotiable and transferable’ by endorsement and delivery or transmission.48
2.38 The “classic” bill of lading is negotiable in the sense described. This transferability is signified by the description of the consignee as “to order”, or “to X or order”, or “to X or his order or assigns” or similar wording. Such a bill of lading is also referred to as an “order” bill. The omission of such words, or the marking on the bill of lading of the words “non-negotiable” will signify that the bill of lading is non-negotiable.
2.39 A bill or other document marked “non-negotiable” cannot normally be “transferable” in the sense that its transfer will transfer the right to possession of the goods. As stated by Lord Devlin:
The only meaning, whether it be a popular or a legal meaning, that can be given to this marking is that the document is not to pass title by endorsement and delivery.49
2.40 A classic “order” bill is negotiable in the sense discussed above, but problems may arise in practice in determining whether a bill is truly intended to be negotiable, especially where the wording in the standard pre-printed form of the bill is intended to cover situations where either a negotiable or non-negotiable document may be issued. Such a situation arose in The Chitral50 where in the relevant bill of lading the consignees were named as “Al Ghaith” with no notify party and the printed box for naming of the consignee specifically provided “if order state notify party”. In addition a separate section of the printed form provided for delivery “unto the above-mentioned Consignee or to his or their assigns”. David Steel J. rejected the argument that these last words had the effect of automatically making the bill an order or negotiable bill. He found that, construing the bill as a whole, those words were intended to operate as such only where the bill was otherwise intended to be an order bill, and such an intention in this case was negatived by the insertion of a named consignee and the absence of a notify party. Thus, the bill was not negotiable and its purported endorsement was ineffective.
2.41 A bearer bill requires the carrier to deliver to the bearer (or holder) without the requirement that that bearer is a named consignee or indorsee. A bill of lading made out simply “to order” may be described as a bearer bill,51 although, as this will usually be issued to the shipper, it may be described as a shipper’s bill. A bearer bill is a document of title. It may be converted into another type of bill by indorsement by the holder, so an indorsement of “to X or order” by the holder converts it into an order bill.
2.42 As stated above an order bill is one where the consignee is described either as “to order”, or “X or order”, or “to the order of X”. A common formula for the naming of a consignee is “to X or his order”, or “to X or his assigns”52 and this wording also constitutes an order bill. It appears that there is no difference for this purpose between “to X or order” and “to X or assigns” and an order bill includes one where the consignee is simply a named person but other parts of the bill indicate a requirement to deliver to his order and/or or assigns.53
2.43 An “order” bill is the classic form of bill of lading and is a bill of lading within the meaning of COGSA 1971 and 1992 and, subject to the other requirements being met, also within the meaning of UCP 500.
2.44 A common modern form of document54 is one where the consignee is a named party, but without any reference to “to order”. This evidences a contractual obligation on the carrier to deliver to that named party (only), subject to any redirection by the shipper.55 Any purported endorsement or transfer to other parties is of no effect on the carrier.
2.45 Such a bill is frequently described as a “straight” bill, and this terminology56 will be adopted here, although it is potentially misleading. A straight bill of lading is not negotiable and is not transferable in the normal sense of permitting an indefinite number of transfers. However, as pointed out in The Rafaela S57 the use of such a bill of lading does or may envisage a transfer of it from shipper to the named consignee. The controversial question as to whether a straight bill is a document of title is discussed in Chapter 6.
2.46 The House of Lords in The Rafaela S drew a distinction between a straight bill of a lading and a sea waybill, in dealing with the carrier’s argument that a straight bill was for all relevant purposes a waybill. Lord Steyn said:58
In the hands of the named consignee the straight bill of lading is his document of title. On the other hand, a sea waybill is never a document of title. No trader, insurer or banker would assimilate the two. The differences between the documents include the fact that a straight bill of lading contains the standard terms of the carrier on the reverse side of the document but a sea waybill is blank and straight bills of lading are invariably issued in sets of three and waybills not. Except for the fact that a straight bill of lading is only transferable to a named consignee and not generally, a straight bill of lading shares all the principal characteristics of a bill of lading as already described.
2.47 However, making the distinction that a straight bill is a document of title might be said to assume the answer to the question posed, and neither the presence of terms on the reverse nor the issue in sets of three appear to be of fundamental importance.59 Furthermore, the suggestion that waybills do not contain terms on the reverse appears not to be well founded.60 The debate on this topic might be better informed by more detailed evidence as to the circumstances in which parties use straight bills and, in particular, the commercial importance attached by the parties to delivery only against production and to the ability to pledge such documents to banks.
2.48 The straight bill of lading is now in something of a legal no man’s land. In particular:
- (1) it is a bill of lading within the meaning of COGSA 1971 and the Hague Rules;
- (2) it does not have the commercial advantage of a sea waybill in terms of delivery being made without its production (although, as with order bills of lading, this difficulty can be avoided by letters of indemnity);
- (3) it is a document of title at least in the very limited sense that its production is required to entitle the holder to delivery;61
- (4) it is not a bill of lading for the purposes of COGSA 1992; and thus
- (5) right of suit under the contract of carriage passes to the consignee at a different time and by a different means from that of “order” bills; and
- (6) section 4 of COGSA 1992 does not apply to straight bills, as its application is limited to bills of lading within the meaning of the Act.
2.49 The classic bill of lading is a shipped bill in the sense that, in the words of UCP 600 Article 20, it indicates “that the goods have been loaded on board, or shipped on a named vessel”. The distinction between shipped bills and received for shipment bills is discussed below. Shipped bills are sometimes referred to, particularly in the United States, as “on board” bills.
2.50 A received for shipment bill of lading differs from a shipped bill of lading in not recording or representing that the goods received have been loaded on to a vessel. It merely records that the goods have been “received for shipment”. However, this simple statement masks a number of possible alternatives. First, the bill may, for example, state that the goods have been received by the carrier62 for shipment on a particular and identified vessel or that they are “intended” to be so shipped. Alternatively it may record that the goods have been received and are intended to be shipped aboard a particular vessel or some other unspecified ship.63 In either case, the bill is properly called a “received for shipment” bill, because the goods have been received and there is in being a contract for their carriage to an identified destination.
2.51 Lloyd J. made it clear in Ishag v Allied Bank International, Fuhs & Kotalimbora64 that it was not necessary for a received for shipment bill to use the words “received for shipment”: it was sufficient that the bill recorded that the goods had been received by the shipowners or their agents and recorded that they were, in the words of the bill in question, “intended to be shipped”.65 The judge went on to say that the important factors were that the document:
- (1) acknowledged that the goods were at the carrier’s disposal, it being enough that the goods have been received by the shipowner’s agents;
- (2) provided the terms on which they were to be carried to their destination and there delivered to the consignee or his assigns; and
- (3) stated the name of the ship by which it was intended that the carriage should be performed.
2.52 Received for shipment bills differ from shipped bills in a number of commercially important respects. First, they may be issued as soon as the goods are actually received, before the completion of loading or even before the issue of the mate’s receipt. This enables the shipper to forward and present the bill of lading to his buyer at the earliest possible opportunity,66 provided, however, that the sale contract permits presentation of a received for shipment bill. Often, however, a shipped bill will be required expressly or by implication in the sale contract – where, for example, the date of shipment is vital to the purchaser.67 A shipped bill of lading is obviously commercially desirable in these circumstances because, subject to delays on the voyage, the arrival period for the goods will be known.68 In Kwei Tek Chao v British Traders & Shippers Ltd.,69 Devlin J. explained the tensions between the interests of the seller and buyer, particularly when shipping space is scarce, which leads the former to prefer a received for shipment and the latter a shipped bill of lading. He said:
I think, especially during the war and thereafter, that the possibility of time expiry between receipt for shipment and shipment has grown considerably as a result of the scarcity of shipping space, and it means that the goods may be brought on the quay and be available for shipment, that is, received for shipment, but may have to wait a considerable time before they are shipped. Naturally, in the ordinary way, the seller is anxious to have a “Received for shipment” bill of lading taken, particularly if he is an f.o.b. seller. If he brings the goods to the quay he does not want to be responsible for shipping delays. On the other hand, a “Received for shipment” bill of lading may contain very little information to a buyer about the date when the goods are likely to arrive. He can calculate the probable length of the voyage and allow for misfortunes on it, but he cannot calculate how long the goods are likely to be at the dock. That is, therefore, the important commercial difference between a “Received for shipment” bill of lading and an “on board” bill of lading….70
2.53 Secondly, a received for shipment bill of lading (which is later converted into a shipped bill) provides the parties to the bill of lading (and, in particular, the carrier) with contractual continuity. Scrutton L.J. pointed out that:
The ship wants to have a bill of lading beginning with the time delivered for shipment, because it wants the time delivered for shipment covered by the exceptions;71 and the exceptions throughout this bill of lading refer to matters which the ship wants. The shipper wants it in that form because he wants to be protected from the time he has given the goods into the hands of the ship for shipment.72
2.54 Additionally, the received for shipment bill of lading may itself provide for different terms to apply before and after shipment. A particularly extreme example can be found in the received for shipment bill involved in Yelo v S.M. Machado & Co. Ltd.73 which provided that:
It is a condition precedent to any claim arising hereunder, that the goods referred to shall have been duly received on board and properly signed for by the master or authorized officer of the steamer.74
2.55 Such a clause may well fall foul of Article III rule 8 of the Hague and Hague-Visby Rules,75 but, subject to this reservation, it amply illustrates the parties’ ability to enter an agreement intending different terms to apply at different stages of the shipment.
2.56 The obvious disadvantage of a received for shipment bill is that, unless it is converted to a shipped bill, it provides no evidence of the date of shipment.76
2.57 The question arises whether a received for shipment bill of lading is indeed a bill of lading. The answer to this question depends wholly upon the context in which the question is asked. It is likely to arise in three different situations, which are considered below.
Common law position
2.58 First, is a received for shipment bill a “bill of lading” such that the legal consequences that attend upon the creation or transfer of a shipped bill of lading also apply to a received for shipment bill; does a received for shipment bill, for example, confer symbolic possession of the goods upon its holders? Does the retention of a received for shipment bill give rise to an intention to retain the property in the goods? These questions must be considered in the context of the legal principle concerned and so are analysed separately below.
2.59 The second situation in which it is likely that the question “is a received for shipment bill or a bill of lading” will arise is in relation to references to a “bill of lading” in a statute or convention. Whether, in any given case, the words “bill of lading” encompass received for shipment bills of lading will depend upon a construction of the statutory provision in question. The following are a series of examples.
Hague and Hague-Visby Rules
2.60 Subject to Article VI of the Hague and Hague-Visby Rules, such Rules apply to every contract of carriage:
…covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading or similar document as aforesaid issued under or pursuant to a charterparty from the moment which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.77
2.61 A contract of carriage may be a contract of carriage “covered by a bill of lading” even if no bill of lading is ever issued.78 Although the Rules may, therefore, apply whether or not a shipped, received for shipment or no bill of lading is ever issued (provided it was the intention of the parties that a bill of lading should be issued),79 it is nevertheless necessary to determine whether or not, for the purposes of applying the Rules, a received for shipment bill of lading is a bill of lading within their terms. Despite the absence of any definition in the Rules themselves, the issue is simply determined by the terms of Article III rule 3, which provides that:
After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading….
2.62 The rules clearly envisage, therefore, the issuing of a “bill of lading” before shipment but after the receipt of the goods by the carrier, namely, a received for shipment bill of lading.80 It follows that it is largely unnecessary to consider whether a received for shipment bill is a “similar document of title” for the purposes of the Rules, but, for completeness, it has been held to be.81
2.63 Despite the complex common law issues surrounding the received for shipment bill, COGSA 1992 is unequivocal: “References in this Act to a bill of lading…do include references to a received for shipment bill of lading”.82 Once again, there is no definition of “received for shipment bill of lading” and the common law definition applies.
2.64 The statutory provisions as to the Admiralty jurisdiction of the High Court are found in section 20(2) of the SCA 1981. There is jurisdiction for “any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”, which must be wide enough to embrace a received for shipment bill of lading, provided that it constitutes an “agreement relating to the carriage of goods in a ship”.83
2.65 The definition of a Bill of Lading in UCP 600, Articles 20–21 excludes a received for shipment bill.
2.66 The third situation in which it may be necessary to address the question of whether a received for shipment bill of lading is a bill of lading is in the context of contractual references to bills of lading. A letter of credit may, for example, provide for payment against presentation of, inter alia, a “bill of lading”.84 Whether payment must be made against the presentation of a received for shipment bill will, once again, be determined solely by construction of the contract.85
Conversion to shipped bill of lading
2.67 Given that goods that are received for shipment, and recorded as having been received for shipment, are generally shipped, it is common for received for shipment bills to be converted into shipped bills. This conversion is achieved by the simple mechanism of recording the fact of the goods having been shipped or loaded by the addition of words such as “clean on board”.86 The resulting bill must not, however, be inadvertently or deliberately misleading. In Kwei Tek Chao v British Traders & Shippers Ltd.87 a shipped bill of lading was first converted into a hybrid received for shipment and shipped bill of lading by the addition of the words “received for shipment and since” before the word “shipped”. This bill was dated 31 October 1951. Subsequently the words “received for shipment and since” were deleted to give the bill the appearance of a simple shipped bill of lading. Such deletion made the bill a forgery.88
Article III rule 7 of the Hague Rules
2.68 Article III rule 7 of the Hague Rules makes it clear that the Rules apply, to a limited extent, to received for shipment bills of lading, which have been converted into shipped bills. It provides that: