Lloyd's Maritime and Commercial Law Quarterly
SEA WAYBILLS AND THE CARRIAGE OF GOODS BY SEA ACT 1971
The European Enterprise
The clamour for the increased use of sea waybills in international trade where bills of lading are not necessary shows no sign of abating. The United Nations Conference for Trade and Development commends sea waybills to the market as one of the main instruments against documentary fraud1 and an international sub-committee of the Comité Maritime International is currently working, under the chairmanship of Sir Anthony Lloyd, on a set of draft rules intended to facilitate the use of such documents.2 The market has responded with a bewildering number of documents, known by an equally intriguing variety of names.3 Running through these documents is the wish to ensure that the contract of carriage which they evidence be governed by the same regime which would have been applicable had the document been a bill of lading.4 In the light of this clear urge on the part of the trade to assimilate sea waybills to bills of lading in all but the feature of full transferability, it is surprising to discover the Commercial Court vacillating about the applicability or otherwise of the Carriage of Goods by Sea Act 1971 to sea waybills.
Received wisdom has it that sea waybills are not documents of title at common law5 and that consequently the Carriage of Goods by Sea Act 1971 does not apply to them, the Act requiring a contract which “expressly or by implication provides for the issue of a bill of lading or any similar document of title”.6 Whether or not
1. See Report on Maritime Fraud, UNCTAD/ST/SHIP/8, Part II.
2. See, generally, Sir Anthony Lloyd “The Bill of Lading: Do We Really Need It?” [1989] LMCLQ 47.
3. Cf., e.g., BIMCO’s Genwaybill, which calls itself a “Non-negotiable General Sea Waybill”; Nedlloyd’s “Non-Negotiable Sea Waybill Straight Bill of Lading”; and P. & O. Containers’ “Non-Negotiable Waybill for Combined Transport or Port to Port shipment”.
4. See, e.g., Genwaybill, cl. 2, which reads, in the relevant part: “This Waybill is a non-negotiable document. It is not a bill of lading and no bill of lading will be issued. However it is agreed that the Hague Rules [or the Hague-Visby Rules where they apply compulsorily] shall apply to this Waybill … It is agreed that whenever [the Rules] or statutes incorporating the same use the words ‘Bill of lading’ they shall be read and interpreted as meaning ‘Waybill’.”
5. See, e.g., Wilson, Carriage of Goods by Sea (1988), 159; and Benjamin’s Sale of Goods, 3rd edn. (1987), para. 1446.
6. Carriage of Goods by Sea Act 1971, s. 1(4) and Sched., Art. I(b).
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