Judicial analysis of the contractual role of bills of lading as it stands in Greek, United States and English law

• Main Author: Zekos, Georgios I.
• Other Authors: Carby-Hall, Joseph Roger
• Published: University of Hull 1998
• Subjects: 340; Law
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.301642

The aim of this thesis is the comparative examination of the contractual role of the bill of lading in Greek, United States and English law. First of all, the principles of law which have created the bill of lading either as the contract or as evidence will be investigated. Moreover, the axis of the development of the thesis will be the analysis of how and why the issued and accepted bill of lading becomes the contract of carriage. The recent efforts to pass from a paper bill of lading to an electronic one makes more important the establishment of a uniform contractual characteristic and function of the bill of lading. The creation and transfer of a bill of lading through the parties' computer brings forward the need to have a standard format of a bill of lading contract where the detailed terms of carriage will be stated and more important to have a uniform and harmonised function. However, there is an uncertainty and dispute about its contractual nature. A legal term has to be used to express the proper meaning of its language and, therefore, every legal term used internationally must have the same substance regardless of the type of the legal system. Hence, the term "bill of lading contract", taking into account the frequent circulation of the bill of lading in the three countries and its general circulation in international trade, should mean that the bill of lading is a contract in the three systems or that it is not to be used as such and that it is not contract in one and merely memorandum or receipt in the other. The bill of lading is a commercial document. It is issued in one jurisdiction and the delivery of the goods, under its terms, is completed in another, while any resulting dispute is litigated in a third jurisdiction. Hence, it cannot be treated as any other ordinary document which is only issued for circulation within the territory of a single legal system. Stability which arises out of a uniform legal functioning of a bill of lading is the primary concern of merchants. At the beginning there was a bailment receipt for goods. Later, this has been developed into a receipt containing the contract of carriage and acquired in time the third characteristic, that of a negotiable document of title. Consequently, the bill of lading has completed its metamorphosis, concerning its functions, through its mercantile usage. If the bill of lading being a contract is of no importance, then why has the historical mercantile usage internationally transformed the bill of lading from being merely a receipt into a receipt and contract, regardless of civil law or common law system? The protection of the shipper was the main reason of the incorporation of the terms of the contract in the bill of lading. Can the uncertainty regarding the terms of the contract under the ordinary principles of the different national laws of contract be applicable in the case of the bills of lading and the carriage of goods by sea? Has the use of the bill of lading changed in the three legal systems since its introduction in order to be attributed to a different contractual function? It is supposed that the contract is consummated when the goods are delivered by the shipper to the carrier and the bill of lading is issued. Has this view been accepted in the three legal systems? Taking into consideration the legal history of the bill of lading, the establishment of a single contractual role is fundamental, not only for its commercial use, but also for its definition as a legal document.