CMI Uniform Rules for Sea Waybills
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In June 1983, the CMI held a Colloquium in Venice on Bills of Lading. At the conclusion of the Colloquium, a number of resolutions were adopted, of which the third and fourth were as follows:
Soon after the conclusion of the Venice Seminar a Working Group on Uniform Rules for Sea Waybills was set up under the Chairmanship of Professor Kurt Grönfors of Gothenburg. The working Group (consisting of Messrs John Honour, G.J. van der Ziel, P. Rembauville-Nicolle and Jan Ramberg) met twice in London in December 1983 and Janurary 1984 after which meetings a draft Report and Rules were circulated.
Subsequently the subject of Sea Waybills was discussed at the 1985 International Conference of the CMI in Lisbon (see CMI Newsletter for Summer 1985) when it was agreed that a broader approach should be adopted than that of the Working Group and that further study should concentrate on transport documentation for carriage by sea generally.
Subsequent to the Lisbon conference an international Subcommittee was set up under the chairmanship of Lord Justice Anthony Lloyd.
The purpose of the International Subcommittee was to follow up and expand upon the work initiated by the Working Group after the Venice Colloquium. Work on the broader base, as mentioned above, commenced in the Spring of 1988. A questionnaire was sent out to the National Associations of the CMI in May 1986.
In a commentary on the answers to the questionnaire the chairman observed:
The reason most commonly given (for drafting uniform rules for sea waybills) is to obviate delay in cases where the vessel arrives before the bill of lading. Another reason is that it will help to reduce the incidence of fraud. It is not thought that the use of sea waybills will eliminate fraud altogether. No system could do that. Thus, as some countries pointed out, it will not be possible to prevent a person obtaining goods by fraud, e.g. by pretending to be the consignee. But it will certainly reduce the opportunities for fraud e.g. in forging the documents of title.
I have said that almost all countries favoured the use of sea waybills, where appropriate. The qualification is important. It is not suggested that the sea waybill will be able to replace the bill of lading altogether. A negotiable document will continue to be required, at any rate for the time being, where there is need for a document of title, as in the case of goods which are traded in the course of transit, or where money is raised on the security of goods, e.g. under a Banker's commercial credit. But in all other cases, the advantages of the sea waybills are obvious. In short, there is no purpose in trying to make the sea waybill do the job of the bill of lading where the bill of lading is appropriate. The object ought surely to be to maximize the existing advantages of the sea waybill, in cases where the bill of lading is not appropriate.
Eventually it may be possible to substitute a paperless system for the negotiable bill of lading. But in the meantime the sea waybill is an important step towards a paperless system. Indeed, as the French reply points out, the sea waybill is in itself, in a sense, a paperless system, since the possession of the piece of paper is of no significance. It merely records the contract.
The International Subcommittee held three meetings in London. At the conclusion of the first meeting Mr. John Moore (USA.) raised the question of uniform rules for electronic bills of lading. This proposal was subsequently taken up by a separate International Subcommittee. The final draft of the report of the International Subcommittee together with the chairman's report and certain other documents were printed in the booklet, Paris I.
The Paris Conference
At the Paris Conference a committee was set up under the chairmanship of Lord Justice Lloyd to study this draft of the International Subcommittee. Mr Allan Philip acted as Rapporteur of the committee. The committee worked in close cooperation with the committee on CMI Rules for Electronic Bills of Lading under the chairmanship of Professor Jan Ramberg. The drafting committee consisted of the Rapporteur, RoIf Herber (FAG), John Moore (USA) and Alain Tinayre (France).
Rule 1. Scope of Application
The Conference decided to include in Rule 1(i) a provision as to the name by which the Rules should be known, viz. the CMI Uniform Rules for Sea Waybills. In the draft this provision was found in Rule 2.
In the draft it was provided that the Rules should apply where the carriage was not covered by a negotiable bill of lading or similar document of title. The Paris Conference deleted the word "negotiable" thus extending the scope of application to all cases where no bill of lading, negotiable or not, had been issued. This was done in an attempt to accommodate the Maritime Law Association of the United States which pointed out that American maritime law already knows an equivalent to the Sea Waybill in the straight bill of lading.
However, it should be noted that the delimitation in Rule 1(ii) retains a reference to "similar document of title".
The reference to contracts not in writing is made in order to make clear that the Rules may be applied even where there is no formal document, such as a sea waybill, i.e. where the transaction is paperless.
IRU had expressed a fear of conflict between the Rules and COTIF and CMR. It was, however, made clear that the Rules when adopted become part of a contract and, therefore, cannot derogate from any mandatory rules.
Rule 2. Definitions
The definition of "contract of carriage" makes it clear that the Rules are applicable to multimodal transport operations. At the Paris Conference it was decided in committee to include a new Rule 2(ii) as follows:
Reference in these Rules to the carrier, the shipper or the consignee shall include their authorised representatives.
But this sub-rule was deleted at the Plenary session on the motion of the United Kingdom delegation because of a possible impact on the Himalaya clause.
Rule 3. Agency
This provision was considered necessary for countries with Common Law Tradition because of the doctrine of privity. If the contract is between the consignor and the carrier the consignee can, at Common Law, normally only sue in the name of the consignor. The object of Rule 3 is to enable the consignee to sue and be sued on the contract.
The second paragraph makes it clear that the Rule only applies in cases where the applicable law makes it necessary and that no other consequences follow from its application than the right to sue on the contract. The fact that the shipper acts on behalf of the consignee does not extend his liability. This is made clear by the second sentence of the Rule 3(ii), which was added at the Conference. In the draft submitted to the Conference a corresponding provision was found in Rule 5(a). At the Conference it was found that its proper place was in Rule 3.
Rule 4. Rights and Responsibilities
The word "carriers" was omitted from the title. The Rule in paragraph (i) ensures the priority of any Convention or national law the application of which is mandatory or would be so if a bill of lading had been issued. This applies e.g. to the Hague-Visby or the Hamburg Rules but also to any other such provisions. The words "which is" were added before "(which) would have been" in deference to the US delegation: see the comment on Rule 1 above. The second sentence of paragraph (i) does not add anything to the first sentence but was found necessary by certain delegations for the sake of clarity.
Paragraph (ii) establishes the application to the sea waybills of the carrier’s standard terms and conditions. And paragraph (iii) sets out the priority between the Rules, the standard terms and conditions and any other agreed terms and conditions.
Rule 5. Description of Goods
The rule gave rise to no discussion at the Paris conference.
Rule 6. Right of Control
Paragraph (i) covers the situation where the shipper has not transferred the right of control to the consignee.
The first point to be discussed was the latest time at which the shipper may change the name of the consignee. The draft provided that he could do so at any time up to delivery of the goods. The conference considered that it would be unfortunate if he could change the consignee after the consignee had been notified of the arrival of the goods and had claimed delivery thereof. The time of the consignee claiming delivery of the goods after their arrival at destination was, therefore, substituted for the time of delivery. The second point of discussion related to the notice by the shipper to the carrier of the change of consignee. It was decided to add a requirement of reasonableness to the requirement of notice.
Paragraph (ii) relates to the shipper's transfer of control to the consignee. The problem of how the option should be exercised was discussed but no changes made.
Rule 7. Delivery
This is an essential provision of the Rules. It follows from it that it is not necessary to surrender the sea waybill in order to obtain delivery of the goods. The draft provided for the alternative of delivery to the consignee's authorised representative. These words were omitted by the Committee, when Rule 2(ii) was inserted. When Rule 2(ii) was deleted by the Plenary session, they were not reinstated.
In relation to paragraph (ii) it was discussed whether the words "reasonable care" should be replaced by "due diligence" or by other terms but in the end the draft text was retained.
Rule 8. Validity
No substantive amendments were moved to the Rule.
It was suggested that there should be a rule as to jurisdiction. But this suggestion was rejected.
Lord Justice LLOYD
CMI Uniform Rules for Sea Waybills
1. Scope of Application
In these Rules:
4. Rights and Responsibilities
5. Description of the Goods
6. Right of Control
In the event of anything contained in these Rules or any such provisions as are incorporated into the contract of carriage by virtue of Rule 4, being inconsistent with the provisions of any International Convention or National Law compulsorily applicable to the contract of carriage, such Rules and provisions shall to that extent but no further be null and void.
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