Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter S.5: Sea waybills and other transport documents
I. Sea waybills and applicable law
Carriage of goods through the world is usually covered by a variety of documents which sometimes differ considerably.
In relation to →carriage of goods by sea the first document that came into use since 1700 (or even before, according to some theories) is the →bill of lading that is quite different from the most recent sea waybill which looks very similar to the waybills normally used in other modes of transport (ie carriage of goods by air, road and rail).
The use of different models has given rise to peculiar questions in respect of the law applicable to those transport documents and to the contracts evidenced by them.
Talking particularly about sea waybills, it must be first of all pointed out that, among the general categories of shipping documents, sea waybills must be distinguished from all the models of bills of lading used in the sea transportation field – which are normally issued in the forms of the ‘order’ bill of lading or in the form of the ‘straight’ bill of lading – for the following reasons.
The ‘to order’ bill of lading is the traditional document that contains, or is evidence, of the terms of the contract of carriage: according to this bill of lading the goods described in the document are to be delivered by the carrier to whomever presents an original bill of lading, duly and regularly endorsed. The ‘to order’ bill of lading is often used in commercial transactions between a seller and buyer as it is negotiable and transferrable: in fact, in a typical commercial transaction the ‘to order’ bill of lading is endorsed by the seller/consignor and then sent to an intermediary (mostly a commercial bank) who then delivers the endorsed →bill of lading to the buyer/consignee in exchange for p. 1616payment →sales contracts and sale of goods. The buyer/consignee can then obtain delivery of the goods from the carrier by surrendering the endorsed bill of lading to the carrier.
The ‘straight’ bill of lading is similar to the ‘to order’ bill of lading in that it also contains the terms of the contract of carriage and must likewise be surrendered to the carrier to obtain delivery of the goods. It differs from the ‘to order’ bill of lading in that a straight bill of lading is made out to a named person/consignee; straight bills of lading are seldom used in commercial transactions.
Both ‘to order’ and ‘straight’ bills of lading – as well as the ‘bearer’ bill of lading, which, however, is not used in maritime traffics for it is considered too dangerous – are considered true bills of lading because they can be exchanged for the goods described within them and are therefore documents of title.
A sea waybill is similar to the above-mentioned models of bills of lading in that it usually contains the terms of the contract of carriage and certifies receipt of the goods loaded on board. However, it is also quite different in that the carrier has to deliver the goods carried to the person named in the sea waybill upon proof of identity alone; in other words, the carrier shall have the burden of using due diligence to check the identity of the consignee and the original sea waybill shall not be, and need not be, surrendered to the carrier to obtain delivery of the goods (JI MacWilliam Co Inc v Mediterranean Shipping Co SA (The Rafaela S) (2005) 1 Lloyd’s Rep 347): a sea waybill – which normally is identified by the writing ‘not negotiable’ printed on the first page – contains in fact a clause which attests that the goods shipped under this sea waybill will be delivered to the party named as consignee, or its authorized agent, on production of proof of identity without any documentary formalities.
Therefore, it appears that the sea waybill differs considerably from all the models of bills of lading for these latter have to be surrendered to the carrier for the purpose of obtaining delivery of the cargo, whereas the presentation of the document is not required when a sea waybill is issued.
It follows that the sea waybill – which is not negotiable and is not a document of title – has to be considered simply as a non-negotiable receipt for the goods loaded on board the carrying vessel at the port of loading, as well as evidence of the terms and conditions of the contract of carriage. (In this respect, see for example the UK’s Carriage of Goods by Sea Act 1992 (c 50) which describes the sea waybill as ‘any document which is not a bill of lading but (a) is such a receipt for goods as contains or evidences a contract for the →carriage of goods by sea; and (b) identifies the person to whom delivery of the goods is to be made by the carrier in accordance with that contract’ (s 1(3) – see also § 526(2) of the German Commercial Code (Handelsgesetzbuch of 10 May 1897, RGBl. 219, as amended in 2013)).
Owing to the above-mentioned characteristics, it has to be noted that the sea waybill has met with success, particularly in the carriage of containers by sea whenever the goods stuffed into the container are not to be sold through a bank negotiation (in fact, because the sea waybill is a non-negotiable document, generally banks involved in documentary credit sales do not allow for the use of sea waybills in such transactions, especially where the cargo concerned has to be sold and resold one or more times while it is in transit).
When a sea waybill is adopted, some disadvantages or costs typical of the →bill of lading, are avoided; for instance, by adopting a sea waybill – which does not circulate – the risks of loss or theft of that document during the transit as well as the possible frauds connected with the documentary credits system are avoided; moreover, a sea waybill is much better suited to electronic data communications (→Electronic commerce). On the other hand, it must be pointed out that a further burden is imposed on carriers who have the task of exercising due diligence in identifying the real consignee.
The differences between sea waybills and bills of lading have important consequences for the application of some international rules, such as the Hague-Visby Rules (International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels, 25 August 1924, as amended by the 1968 Visby Protocol and the 1979 Brussels Protocol).
II. The international rules on carriage of goods by sea and their application to sea waybills
Owing to their peculiar contents and functions, full attention must be given to the problems concerning the legal regime applicable to sea waybills. This relates in particular to the applicability of the relevant international Conventions p. 1617governing the →carriage of goods by sea, ie International Convention of 25 August 1924 for the unification of certain rules relating to bills of lading, 25 August 1924 (120 LNTS 155, the so-called Hague Rules) as amended by the 1968 Visby Protocol (Protocol of 23 February 1968 to amend the International Convention for the unification of certain rules of law relating to bills of lading signed at Brussels on 25 August 1924 (Hague Rules), 1412 UNTS 128) and by the 1979 Brussels Protocol (Protocol of 21 December 1979 to amend the International Convention for the unification of certain rules to bills of lading (Hague Rules) as modified by the Amending Protocol of 23 February 1968 (Visby Protocol), 1412 UNTS 146), the United Nations Convention of 31 March 1978 on the carriage of goods by sea (1695 UNTS 3, the so-called Hamburg Rules) as well as the United Nations Convention of 11 December 2008 on contracts for the international carriage of goods wholly or partly by sea (not yet in force, UN Doc A/RES/63/122, 63 UNTS 122, the so-called Rotterdam Rules; →Carriage of goods by sea).
1. The Hague-Visby Rules
a) Direct application
The application of the Hague-Visby Rules to a contract for the international carriage of goods by sea depends upon art X which states that the provisions of the said Rules apply to every →bill of lading relating to the carriage of goods between ports in two different states if: (i) the bill of lading is issued in a contracting state, or (ii) the carriage sets out from a port in a contracting state, or (iii) the contract contained in, or evidenced by, the bill of lading provides that the Rules or a legislation of any state giving effect to them are to govern the contract, whatever may be the →nationality of the ship, the carrier, the shipper, the consignee or any other interested person.
It must also be recalled that art II of the Hague-Visby Rules states that, subject to the provisions of art VI, under every contract of carriage of goods by sea carriers are subject to the responsibilities and liabilities and are entitled to the rights and immunities set forth in the Rules themselves, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods.
Therefore, pursuant to the above-mentioned articles, it appears that the Hague-Visby Rules apply where there is a ‘contract of carriage’ and the relevant bill of lading is issued in a contracting state or relates to a carriage from a contracting state, or where the contract contained in, or evidenced by, the bill of lading incorporates the said Rules: in fact, even if the term ‘bill of lading’ is not defined in the Rules, however, art I (b) clearly defines the term ‘contract of carriage’ stating:
contract of carriage applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under, or pursuant to, a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.
As ‘contract of carriage’ refers only to ‘contracts of carriage covered by a bill of lading or any similar document of title’, it results that the Rules can govern only bills of lading or similar documents of title.
This would preclude the application of the Rules to contracts of carriage under sea waybills for they are not documents of title. Actually, sea waybills are not considered by most authors to be governed by the Hague or Hague-Visby Rules (Bernard Eder and others, Scrutton on Charterparties and Bills of Lading (22nd edn Sweet & Maxwell 2014) 201; see, however, the contrary opinion expressed by William Tetley, ‘Waybills: The Modern Contract of Carriage of Goods by Sea’  J.Mar.L.& Com. 456, 471). This position finds support in several decisions such as Harland & Wolf v Burns & Laird Lines  40 Ll.L.Rep 286; Hugh Mack & Co v Burns & Laird Lines  77 Ll.L.Rep. 377; Browner International Ltd v Monarch Shipping Co Ltd (The European Enterprise)  2 Lloyd’s Rep 185, 188; Starrag vs Maersk, Inc, 486 F.3d 607 (9th Cir 2007); The Maurice Desgagnés  1 F.C. 215; The Westwood Anette  F.C. 664.
b) Indirect application by means of contractual incorporation
Because the sea waybill is, in the opinion of most maritime authors, not a ‘bill of lading’ or a ‘similar document of title’, the general view is that the Hague and Hague-Visby regimes for carriage by sea do not govern sea waybills by their own force, but only if some contractual incorporation or a national law renders one of p. 1618those Rules applicable to the contract of carriage which the sea waybill evidences.
Where this is the case, also sea waybills can be governed by the Hague and/or Hague-Visby Rules regime concerning the sea carriers’ liabilities, exonerations and limits of liability.
First, the Hague and Hague-Visby Rules regimes may be made applicable to contracts of carriage evidenced by a sea waybill by way of a contractual incorporation of those Rules into those documents: in this respect, it has to be pointed out that it is usual that standard forms of sea waybills contain a clause expressly incorporating the Hague or the Hague-Visby Rules.
The said regimes may be made applicable to contracts of carriage evidenced by a sea waybill also by way of an incorporation of some other international Rules referring to the Hague-Visby Rules which can be voluntarily inserted into the sea waybill: for instance, sea waybills may attract by reference the CMI Uniform Rules for Sea Waybills (issued by the Comité Maritime International (CMI) in 1990, see CMI Yearbook 1990), ie a set of provisions for carriage by sea evidenced by sea waybills, adopted by the Comité Maritime International (CMI), which carriers may voluntarily incorporate into their sea waybills.
On this subject it must be recalled that Rule 1(ii) provides that the mentioned CMI Rules apply when incorporated into a contract of carriage which is not covered by a →bill of lading or similar document of title, whether the contract is in writing or not.
In this case, according to art 4(i), the carriage of goods is subject to ‘any International Convention or National Law which is, or if the contract of carriage had been covered by a bill of lading or similar document of title would have been, compulsorily applicable thereto. Such convention or law shall apply notwithstanding anything inconsistent therewith in the contract of carriage’; subject always to the above-mentioned provision, the said contracts of carriage are also governed, according to art 4(ii) and (iii): a) by the said CMI Rules; b) unless otherwise agreed, by the carrier’s standard terms and conditions for the trade, if any, including any terms and conditions relating to the non-sea part of the carriage, provided they are incorporated in the sea waybill; c) by any other terms and conditions agreed by the parties.
Whereas the legal sources mentioned by art 4 of the CMI Rules govern specifically rights, obligations, liabilities and limits of liabilities, the said Rules govern particularly some typical aspects of sea carriage for which a sea waybill is issued; for instance, peculiar attention is drawn on the right of control on the goods as well as the delivery of the goods upon proper identification of the consignee and also the evidentiary value of sea waybills.
As far as these items are concerned, it must be briefly recalled that, according to art 6, the shipper is the party entitled to give the carrier instructions in relation to the contract of carriage and even to change the name of the consignee, unless he exercises the option, not later than on receipt of the goods by the carrier, of transferring the right of control to the consignee; the exercise of this option has to be noted on the sea waybill, or similar document. As regards delivery of the goods, art 7 states that the carrier has to deliver the cargo to the consignee upon production of proper identification and must exercise reasonable care to ascertain that the party claiming to be the consignee is really that party. Moreover art 5, dealing with the description of goods, states that in the absence of reservations by the carrier, any statement in sea waybills or similar documents as to the quantity or conditions of the goods shall be prima facie evidence of receipt of the goods as so stated as between the carrier and the shipper and shall be conclusive evidence of that as between the carrier and the consignee, provided that this latter has acted in good faith.
The CMI Uniform Rules for Sea Waybills have already been incorporated in several standard forms for sea waybills such as, for instance, the Bimco Non-Negotiable General Sea Waybill 1995 (‘Genwaybill’), the Non-Negotiable Liner Sea Waybill (‘Linewaybill’) and the Combined Transport Sea Waybill 1995 (‘Combiconwaybill’).
Considering that modern waybills may cover not only carriage of goods by sea but even multimodal transport, it has to be added that those documents can also be governed by UNCTAD/ICC Rules for Multimodal Transports Documents (issued by the United Nations Commission on Trade and Development and International Chamber of Commerce in 1992. See UNCTAD Documentation – Trade/Wp.4/INF.117/corr.1) which apply when they are incorporated into a multimodal contract of carriage; in this case, and in the event that a MT waybill be issued, the liability regime provided for by the said Rules in art 5 (paras 1, 2, 3, 4), as well as the MTO’s limits of liability contained in art 6, are applicable to the entire carriage of goods effected by at least p. 1619two different modes of transport →Multimodal carriage contracts. As regards the maritime stage of a multimodal carriage, it must be noted that the regime of the UNCTAD/ICC Rules appears to be similar to that contained in the Hague-Visby Rules in that the same limits of liability are provided for.
c) Indirect application by means of national legislation
It must further be added that in a number of countries some national legislations render the Hague-Visby legal regime (or a national modification of it) applicable to the maritime carriage of goods under sea waybills for they extend the said regime to the contracts of carriage evidenced by sea waybills. For instance, in the United Kingdom, the Carriage of Goods by Sea Act, giving the force of law to the Hague-Visby Rules, already in the 1971 edition had provided at s 1(6)(b) that without prejudice to art X(c) of the Rules, the same have the force of law in relation to any receipt which is a non-negotiable document marked as such, if the contract contained in, or evidenced by it, is a contract for the →carriage of goods by sea which expressly provides that the Rules are to govern the contract as if the receipt were a →bill of lading. The more recent 1992 edition confirms the above trend at ss 1(1) and 5(1) clearly equalizing bills of lading and sea waybills for the purpose of applying the above-mentioned Rules.
In some other countries too, carriage of goods under sea waybills is regulated by national statutes which incorporate the Hague-Visby Rules and expressly extend them to sea waybills: examples may be found in →Australia, →New Zealand, →Singapore and →South Africa.
The very fact that many countries considered it necessary to enact specific legislation to bring sea waybills within the ambit of their compulsorily applicable national maritime carriage of goods regimes is further evidence of the general worldwide view that sea waybills are not automatically subject to the Hague or Hague-Visby Rules.
2. The Hamburg Rules
In contrast, more modern international Conventions on the →carriage of goods by sea appear to show a different approach in respect to sea waybills.
The Hamburg Rules, for example, by art 2(1), generally apply to ‘all contracts of carriage between two different states’, which evidently would include sea waybills, inasmuch as they show evidence of a contract of carriage of goods by sea (see also art 18 which clearly states that documents other than bills of lading can be issued).
It is therefore possible to conclude that in states which are party to the Hamburg Rules, sea waybills are subject to that international Convention (see the present status of ratifications at <www.uncitral.org>): in this case, they will be governed by the said Rules as far as carriers’ obligations, liabilities and limits of liabilities are concerned.
It has to be added that these Rules also contain provisions on jurisdiction stating at art 21.1 that actions may be instituted before a competent court in the principal place of business (or the habitual residence) of the defendant or the place where the contract was made (provided that the defendant has there a place of business, branch or →agency through which the contract was made), or in the port of loading or in the port of discharge or in any additional place designated for that purpose in the contract of carriage. An action may also be instituted (art 21.2) before the court of any port or place in a contracting state at which the carrying vessel or any other vessel of the same ownership may have been arrested. According to art 22, the disputes arising from the contract of carriage may also be referred to arbitration.
3. The Rotterdam Rules
On the other hand, the new Rotterdam Rules define ‘transport document’ in such a way as to include any document issued under a contract of carriage which evidences or contains a contract of carriage (art 1(14)). Those Rules expressly apply to a ‘non-negotiable transport document’ and a ‘non-negotiable electronic transport record’ (arts 1(16) and art 1(20)) as well as to a ‘negotiable transport document’ and a ‘negotiable electronic transport record’ (art 1(15) and art 1(19)).
It is therefore self-evident that sea waybills (printed or electronic) will be covered, as well as bills of lading (printed or electronic) by the Rotterdam Rules as soon as they enter into force (see the present status of ratifications at <www.rotterdamrules2009.com>); consequently the basic obligations (see particularly chs 4 and 9), as well as the liability principles (see particularly ch 5) and the limits of liability (see ch 12) contained in the Rotterdam Rules will be p. 1620applicable to sea waybills and to multimodal waybills (covering a carriage partly by sea).
As far as jurisdiction is concerned and unless the contract of carriage contains an exclusive choice of court agreement (complying with the Rules’ provisions), ch 14 will be applicable. Parties will also be allowed to refer disputes arising from the contract of carriage to arbitration according to ch 15.
III. Some residual aspects concerning the application of national laws to sea waybills and jurisdiction
In practice, standard forms of sea waybills expressly incorporate the Hague or Hague-Visby Rules with the consequence that the regime provided for by the said Rules is applicable to the contracts of carriage in respect of which those documents are issued. However, as usual in bills of lading forms, many sea waybills contain on the reverse page also a clause making express reference to a national law for the purpose of governing those aspects of the contract of carriage which are not covered by the above-mentioned uniform Rules (when incorporated) or regulating the entire contract, in addition to the inserted clauses, in the event that the said Rules are not incorporated or not applicable.
The same clause (or, sometimes, an adjoining clause) also solve problems of jurisdiction. Thus, for instance, some waybill forms state that disputes arising under those documents are determined by the courts and in accordance with the law at the place where the carrier has its principal place of business (see, for instance, the Bimco standard form of Multimodal Transport Waybill ‘Multiwaybill 1995’). The above provision appears to be self-explanatory in that it clearly not only indicates the law designated either to cover those aspects not dealt with by uniform Rules (where applicable) or to give a correct interpretation to the inserted clauses, but also indicates the forum to be chosen (or even the arbitration procedure) to solve possible disputes between the parties: it has to be added that such a provision may also fill the gap emerging from some international Rules – such as the Hague-Visby Rules – which do not contain any provision on jurisdiction or arbitration.
IV. Other transport documents and their regulation
Waybills which are normally used in modes of transport different from the carriage by sea (such as carriage of goods by road, air and rail) are usually governed by the uniform Rules that are in force in relation to each mode of transport.
Thus, in respect of international carriage of goods by road the Convention of 19 May 1956 on the contract for the international carriage of goods by road (CMR, 399 UNTS 189), as amended by the Protocol of 5 July 1978 (Protocol to the convention on the contract for the international carriage of goods by road (CMR) of 5 July 1978, 1208 UNTS 427) is applicable and in respect of carriage of goods by rail the COTIF (Convention of 9 May 1980 concerning international carriage by rail, 1396 UNTS 2, in the version of the Protocol of Modification of 3 June 1999, available at <www.otif.org>) and particularly its Appendix B (Uniform Rules concerning the contract of international carriage of goods by rail (CIM)) applies; as regards carriage by inland waterway, the CMNI (International Convention of 22 June 2001 on the contract of carriage of goods by inland waterway, UN Doc A/CN.9/645) has to be mentioned (→Carriage of goods by road, rail and inland waterways). International carriage of goods by air is now governed by the Montreal Convention (Convention of 28 May 1999 for the unification of certain rules relating to international carriage by air, 2242 UNTS 309, see the status of ratifications at <www.icao.int/secretariat/legal>, →Air law (uniform law)).
Where the above uniform Rules are not applicable, reference must be made for the European Union to the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I),  OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)).
Giorgia M Boi, La lettera di trasporto marittimo: Studi per una disciplina uniforme (Giuffrè 1995);
p. 1621Leo D’Arcy, Ridley’s Law of Carriage of Goods by Land, Sea and Air (7th edn, Shaw & Sons 1992);
Charles De Battista, ‘Waybills: Conclusive Evidence with Respect to Details of the Cargo’  Dir Marit 127;
Charles De Battista, ‘Sea Waybills and the Carriage of Goods by Sea Act’  LMCLQ 47;
Bernard Eder and others, Scrutton on Charterparties and Bills of Lading (22nd edn, Sweet & Maxwell 2011);
Nicholas Gaskell, Regina Asariotis and Yvonne Baatz, Bills of Lading: Law and Contracts (LLP 2000);
Kurt Grönfors, Towards a Transferable Sea Waybill (Akademiförlaget 1991);
Jan Ramberg, ‘Documentation: Sea Waybills and Electronic Transmission’ in Franceso Berlingieri and others (eds), The Hamburg Rules: A Choice for the E.E.C.? (Maklu 1994) 101;
William Tetley, ‘Waybills: The Modern Contract of Carriage of Goods by Sea’  J.Mar.L.& Com. 456;
William Tetley, Marine Cargo Claims (4th edn, Carswell 2008);
Paul Todd, Modern Bills of Lading (3rd edn, Blackwell Scientific Publications 2002);
John F Wilson, ‘Legal Problems at Common Law Associated with the Use of the Sea waybill’  Dir Marit 115;
David Yates, Contracts for the Carriage of Goods (LLP 1993);
Georgios Zekos and Jo Carby-Hall, ‘Sea Waybills: A New Marketable Name for Straight Bills of Lading’  Dir Marit 714.