国际货物运输与保险

第二节　国际货物运输与保险

Section 2　International Transport of Goods and Insurance

【The Fundamental】

This section discusses the liability of the carrier for damage or loss to cargo while it is in transit. It includes the following subjects: (a) carriage of goods by air, (b) carriage of goods by sea, and (c) selected issues in maritime and marine cargo insurance law.

A. International Carriage of Goods

1. Carriage of Goods by Air.

(1) The Liability of International Air Carriers: The Warsaw Convention.

At the beginning of air travel in the early part of this century, the risk of an air disaster was far greater than today. The risk was so great that investors feared entering the aviation industry in which their fortunes could be wiped out in one disaster. Insurance companies also feared insuring the new airlines. Lawmakers soon realized that firms entering the fledgling aviation industry required protection from such catastrophic loss in order for the industry to develop. In the late 1920s, delegates from more than twenty countries met in Warsaw, Poland, to draft an international agreement that would provide a uniform limitation on the liability of an air carrier to both shippers and passengers. The Convention for the Unification of Certain Rules Relating to International Transportation by Air is commonly known as the Warsaw convention. It was completed in 1929 and adopted in the United States in 1934. It has been the law in almost 150 nations.

The Warsaw Convention created the first comprehensive set of uniform rules governingthe carriage of international passengers, baggage, and cargo. It is still in effect today, although it has been amended many times since 1929. The most recent amendment is known as Protocol 4 of 1999. Protocol 4 has been adopted by fifty-four nations, including the United States, Canada, the United Kingdom, Japan, and many countries in Europe, Scandinavia, and South America.

a. Limitations on Liability and special Drawing Right.

The Warsaw convention prohibits the use of contracts or disclaimers of or liability by airlines, and instead specifically defines the conditions under which an airline can be held liable and provides protection to airlines by placing limits on that liability. The limitation on liability is one of the most important and controversial topics in air transportation law. The delegates to the original Warsaw Convention wanted a standard, uniform limit of liability worldwide. They realized that the airline’s liability would have to be limited to a certain amount of money per death, injury or kilogram of luggage or cargo. But in what currency should it be payable? Getting the countries to agree would have been impossible. So, the delegates to the convention in 1929 chose to use a common standard of value at the time—the French Poincare Franc, a gold currency of a certain purity and weight that is no longer in existence. Of course, it was never intended that airlines would pay claims in Francs or gold, but in an equal amount of the carrier’s national currency. This method worked well until the 1970s when gold was no longer used as a standard value for currencies. After that time, it became more difficult to base a monetary limit on liability by reference to the price of gold. Today, gold is no longer used. Instead, the limits of liability of an airline are based on Special Drawing Right (SDRs）^[6]. SDRs represent an artificial “basket” of currency values developed by the International Monetary Fund (IMF). The value of an SDR on any given date can be found by consulting the IMF (or its web site).

b. Liability for Air Cargo Losses.

The Warsaw Convention, as amended by Protocol 4, holds an airline liable for all cargo damage unless caused by (a) an inherent defect, quality, or vice of the cargo, (b) defectivepacking of the cargo performed by a person other than the carrier, (c) an act of war or armed conflict, or (d) an act of public authority, such as customs authorities, carried out in connection with the entry, exit, or transit of cargo. The airline is not liable for any cargo damage to the extent that it was caused by the contributory negligence of the shipper, regardless of whether the national law recognized such doctrine.

Today cargo losses in the United States are limited to 17 SDRs per kilogram, unless the shipper has declared a higher value on the air waybill and paid an additional fee if required. This limit does not apply if it can be shown that the damage resulted from an act of the airline, or its employees or agents, that was done with the intent to cause damage or done recklessly and with knowledge that damage would probably result (i.e., done with a realization that damage to cargo is likely to occur). Although it seems easy enough to prove that airline employees recklessly damaged baggage or cargo, the court decisions show that the plaintiff may have a very difficult time proving that the airline acted intentionally or recklessly. Airlines are also liable for losses due to delays in transportation. Owners of damaged cargo, or their insurance companies if claims have been paid, must bring any legal action against an airline within two years, or they are barred by a statue of limitations.

An airline will be responsible for cargo in an amount greater than the convention’s limitation if the shipper declares a higher value for the goods in the air waybill and pays any additional fees imposed by the airline. Despite the ability of a shipper to declare a higher value, most international air shippers agree that there is no substitute for purchasing air cargo insurance as your first line of defense in the event of cargo damage.

(2) The Montreal Convention of 1999.

In 1999, fifty-two nations, including the United States and the European Union, agreed on a new treaty governing the liability of an airline for death or injuries to passengers, known as the Montreal Convention of 1999. The Montreal Convention is intended to increase the liability of airlines for injuries and loss of human life, and to generally modernize air transport law. It will have some, but not a great, impact on the liability for cargo losses because the provisions of Protocol 4 discussed previously are included in the new convention.

2. Carriage of goods by Sea.

(1) Liability for the Carriage of Goods by Sea.

Ocean-going cargo is constantly at risk. Damage can result from any number of causes, including external forces, the inherent nature of the goods, the passage of time, or any combination of factors. Typical examples of cargo damage include infestation from insects ormolds, contamination from chemicals previously held in the ship’s hold, rust and other moisture damage from condensation inside the hold, damage from broken refrigeration units and other equipment, storm damage from rain and seawater, losses from fire or the sinking of the ship, damage done to cargo while rescuing the ship from peril, damage resulting from cargo being improperly stowed above deck, losses from theft and piracy on the seas, damage from acts of war, and so on.

One of the greatest dangers to cargo has traditionally been pilferage and theft. This problem was particularly troublesome during the time when goods were moved by break-bulk freight. With the advent of containerization, particularly in the last twenty-five years, pilferage has been greatly reduced.

Despite the impact of containerization on international trade, damage and loss to cargo must be anticipated by any international shipper. In the event of a loss, inevitably the owner of the goods or the insurer will look to the carrier for recovery. But carriers enjoy considerable protection under the law.

a. History of Carrier Liability.

The law regarding an ocean carrier’s liability for damage or loss to cargo is rooted in the history of transportation and trade. As goods moved across the high seas on sailing ships, they were under the exclusive control of the ship’s captain for months at a time. Shippers had no way of proving that goods were lost or destroyed as a result of a natural disaster, the negligence of the carrier, or from the crew’s pilferage or theft. As a result, the maritime law of both England and the United States held carriers to be absolutely liable for all loss or damage to cargo in their possession. Although a few exceptions to this liability were recognized, carriers were virtual insurers of their cargo. With the growth of trade and the advent of steamships, carriers became more economically powerful. They began to include provisions in their bills of lading (which is a contract between the shipper and carrier) that would limit their liability. These limitation liability clauses attempted to free the carrier from all responsibility, including liability for its own negligence or even for providing an unfit vessel. The small shippers were at the mercy of the steamship companies. The result was a period of great uncertainty over the liability of ocean carries.

b. The Hague Rules.

In 1892, the U.S. Congress first addressed the problem in the Harter Act, a federal law still in effect today. This act set out the liability of a carrier for the care of its cargo, and imposed restrictions on the use of exculpatory clauses in bills of lading. At the end of the First World War,other nations attempted to develop similar rules. The result was the near universal acceptance of a 1924 International Convention on Bills of Lading known as the Hague Rules^[7]. These rules represent an international effort to achieve uniformity of bills of lading, and were intended to reduce the uncertainties concerning the responsibilities and liabilities of ocean carriers. The Hague Rules define the liability of ocean carriers for damage or loss to goods on the seas. Virtually every trading nation of the world today has incorporated them into its national law.

c. The Hamburg Rules.

In 1978, the United Nations completed drafting a new Convention on the Carriage of Goods by Sea, known as the Hamburg Rules^[8]. These rules are different from the Hague Rules. They do not relieve the carrier for errors in navigation or in the management of the ship, and they make ocean carriers liable for losses resulting from negligence. They also make it easier for cargo owners to win their cases against carriers. These rules were drafted by the United Nations to serve the interests of cargo owners and shippers in developing countries that do not have large carrier fleets. The rules are also supported by shippers in other countries who believe they will reduce insurance costs. As of 2000, only twenty-five countries (mostly developing countries) had sanctioned the new rules, making them legally binding in those countries only. However, higher insurance rates for shipowners who sail to or from these countries are already being charged by international marine insurance pools. The rules are strongly opposed by carriers and insurance companies worldwide, and adoption of the Hamburg Rules in the United States and other ocean-going nations seem unlikely.

d. The Visby Amendments.

The Visby Amendments are amendments to the original 1924 Hague Rules^[9]. They are already in effect in many countries, including the United Kingdom, Canada, most of Western Europe, Japan, Hong Kong, and Singapore. The Visby Amendments raise the per package limitation of carriers to an amount based on special drawing rights of the IMF, or approximately $1 000, and make them liable for all losses resulting from the carrier’s“recklessness” in the operation and navigation of the ship. The carrier is reckless if it knew or should have known that its conduct would be likely to cause damage.

(2) The Bill of Lading.

a. The Definition of the Bill of Lading.

A bill of lading is a document of title issued by a carrier to a shipper upon receiving goods for transport. Having first been used in the sixteenth century, the bill of lading has played a vital role in international trade. It serves three purposes: (a) a receipt for the goods from the carrier, indicating any damage to the goods that was visible at the time of loading,(b) the contract of carriage between the shipper and the carrier (i.e., a transport document) and(c) the document of title to the goods described in it.

Other types of transport documents will serve as a contract of carriage, but do not act as a document of title.

b. Types of Ocean Bills of Lading.

Bills of lading can take a variety of forms with different functions and usages in trade. The legal significance of each is important to all parties to the document:

(a) Clean Bills of Lading. In addition to being a document of title, the bill of lading is also a receipt for the goods. A clean bill is one that contains no notations by the carrier that indicate any visible damage to the goods, packages, drums, or other containers being loaded. A bill of lading that is not clean is foul. Normally, this description applies only to the externalappearance of the goods. For instance, leaking containers, rust on metal products, and external evidence of infestation by insects must be noted on the bill of lading. As a generally accepted practice, the bill of lading must state the condition of the goods themselves, even if they are not externally observable, if the carrier nonetheless knows or should have known that goods are damaged. This type of inspection serves to protect the carrier from responsibility for preshipment damage. Buyers should insist that all contracts call for the seller to provide a clean bill. A buyer who receives a clean bill still has no assurance that the goods will arrive in good condition. A clean bill of lading means only that the carrier noted no obvious or visible damage to the goods when they were loaded aboard ship. Of course, a clean bill of lading is also no guarantee as to the quality of the goods or whether the goods conform to the description in the sales contract. And it is no guarantee that the goods will not be damaged during the voyage.

(b) On board Bills of lading. An onboard bill of lading, signed by the ship’s master or other agent of the carrier, states that the goods have actually been loaded aboard a certain vessel. In most documentary sales, the buyer would want to specify that payment is conditioned upon receipt of a negotiable, clean, onboard bill of lading. This document gives some assurance that the goods described in the bill of lading have actually been loaded on board and are underway to the buyer. It also insulates the exporter from loss of the goods before loading. An importer who buys an onboard bill also has an approximate idea of when the goods will arrive.

(c) Received-for-Shipment Bills of Lading. A received-for-shipment bill of lading, on the other hand, is issued by a carrier only upon having received goods for transport. It has limited use in cases of a time delay between the delivery of the goods to the carrier and their being loaded onboard ship. Imagine a buyer who is asked to pay for a received-for-shipment bill of lading for bananas being shipped from Honduras to the United States. The buyer has no guarantee that they won’t be sitting on the sun-parched dock for weeks waiting to be loaded. Most documentary sales contracts will require that sellers tender onboard (and clean) bills of lading. A received-for-shipment bill of lading can be converted into an onboard bill of lading by the carrier’s noting the vessel name and date of loading on the face of the bill.

(d) Straight Bills of Lading. The bill of lading used in a documentary sale is negotiable. In nondocumentary sales, a nonnegotiable or straight bill of lading will suffice. They are used by ocean carriers only if the seller intends that the goods be delivered directly to a consignee, a specific person, named in the bill. The consignee may be the foreign buyer, as in the case of a sale on open account terms. It also may be the buyer’s bank or customs agent. The consignee is not required to produce the actual bill in order to receive delivery. Straight bills of lading arealso used when the exporter is shipping to its own agent (or subsidiary company) in the foreign country, with the expectation that the agent will make direct arrangements with the buyer for payment before the goods are turned over. As in the case of negotiable documents, the carrier may deliver only to the party named in the bill. If the carrier delivers the goods to anyone else, it will be liable for misdelivery. Straight bills do not represent transferable title to the goods and cannot, alone, be used as collateral for a loan. Thus, typically, straight bills of lading are used when there is no financing involved.

B. Marine Cargo Insurance

As is evident from the forgoing discussion, the insuring of cargo is an essential element of international trade. The potential for damage and loss to goods, particularly during ocean shipments that are lengthier and more hazardous than air shipments, is tremendous. The risk of loss can be allocated between buyer and seller, often through the use of trade terms. If loss does occur, the party bearing the risk (perhaps the holder of the bill of lading) will surely seek to shift its financial burden to an insurer. Sellers, buyers, and even banks that finance international sales will want to be certain that their interest in the goods is fully insured. If not, the property risks will prove unacceptably high.

1. Marine insurance policies and certificates.

Although policies of insurance are issued to cover individual shipments, many shippers who do large volumes of business overseas maintain open cargo policies. An open policy offers the convenience and protection of covering all shipments by the shipper of certain types of goods to certain destinations and over specified routes. With an open policy in effect, the exporter is authorized by the insurance company to issue a certificate of insurance on a form provide by the company. Open cargo policies are often used by exporters shipping on CIF terms. These certificates are negotiable and are transferred along with the bill of lading to the party who purchases and takes title to the goods. The type or form of the certificate is determined by the contract between the parties or by the requirements of the bank that is providing financing for the sale. The insurance company must be notified as soon as possible after shipment under an open policy.

When a sales contract calls for the seller to obtain a marine insurance policy or certificate on behalf of the buyer, the certificate is universally understood to be acceptable. When the parties state only that a contract is CIF, however, and make no reference to insurance, some confusion can arise as to whether a certificate will be accepted.

The English view is that a certificate of insurance will not substitute for an insurancepolicy. In a case decided in 1924, a U.S. court rejected the English view. The court based its argument on the fact that insurance certificates are so widely recognized in commerce that they should be recognized in the law. This rule has been adopted by the UCC.

2. General Average^[10]and FPA Losses.

Marine insurance policies cover several different types of loss: (a) total losses of all or part of a shipment, (b) general average losses, and (c) partial or particular average losses.

The term average in marine insurance law means loss. A general average is a loss that results when extraordinary expenses or losses are incurred in saving the vessel or its cargo from danger at sea. This ancient principle of maritime law, which was developed long before insurance was available, spreads the risk of a disaster at sea by making all parties to the voyage contribute to any loss incurred. Under this rule, if A’s cargo is damaged or “sacrificed”in the process of saving the ship, and B’s cargo is saved as a result, B or its insurer must contribute to A for the loss. A’s claim is a general average. In other words, the owner of the cargo that was sacrificed would have a general average claim for contribution against the owner of the cargo that was saved. For example, when fire threatens an entire ship, and certain cargo is damaged by water in putting the fire out, the owners of all of the cargo must contribute to the loss of the cargo that was damaged by the water. The owners of cargo that is thrown overboard to save a sinking ship may have a claim against those whose cargo was thereby saved. General average claims are typically covered by marine insurance.

In order to prove a general average claim, the claimant must show that (a) the ship, cargo, and crew were threatened by a common danger; (b) the danger was real and substantial (the older cases required that the danger also be “imminent”); and (c) the cargo or ship was voluntarily sacrificed for the benefit of both, or extraordinary expenses were incurred to avert a common peril.

(1) The York-Antwerp Rules.

The York-Antwerp Rules are a set of standardized rules on general average. An effort to develop commonly accepted principles of general average began in England as early as 1860, with work on the rules being completed in 1890. Following World War II, an international effort to achieve universally accepted general average rules resulted in the revisedYork-Antwerp Rules of 1950. The rules have achieved widespread acceptance by the maritime industry; the latest version was agreed to in 2004. The rules are not the subject of treaty or convention, and have not been enacted into national laws. They traditionally have become a part of the contract of carriage because their provisions are generally incorporated into all modern bills of lading.

(2) General Average Claims by the Carrier.

Surprisingly enough, ocean carriers can bring general average claims against the owners of cargo. The principles of general average apply when a carrier incurs extraordinary expenses in rescuing, saving, or repairing an endangered ship.

The results of general average law must have been quite surprising to the plaintiff in Amerada Hess Corp. v. S/T Mobil Apex, 602 F.2d 1095 (2nd Cir. 1979). Plaintiff shipped gasoline and naphtha. When the cargo was destroyed by an explosion and fire that had been started by sparks from machinery in the engine room, the plaintiff sued the carrier for damages. The carrier counterclaims for general average losses. The court denied recovery to the cargo owner under COGSA^[11], holding that the carrier was not liable for the fuel because the ship was not unseaworthy. The court then held, much to the chagrin of the plaintiff that it was actually liable to the carrier for towing and salvage expenses incurred in arresting the fire and saving the ship.

(3) Real and Substantial Danger.

Historically, the courts have allowed a general average claim only where the loss occurred as a result of the ship being in imminent peril. Today, that concept has been broadened to include instances of real and substantial danger. In Eagle Terminal Tankers, Inc. v. Insurance Co. of USSR, 637 F.2d 890 (2nd Cir. 1981), the ship had traveled for more than a day with a damaged propeller. It dry-docked, unloaded the cargo, had the damage repaired at a cost of $127 000 (which included the crew’s expenses during that time), reloaded, and completed its voyage to Leningrad. The court awarded the carrier the general average claim. It noted that “a ship’s master should not be discouraged from taking timely action to avert a disaster,” and need not be in actual peril to claim general average.

3. Particular Average Losses.

Although total and general average losses are ordinarily covered up to the policy amount, special problems result from partial or particular average losses. A particular average loss is apartial loss to the insured’s cargo. Many insurance policies limit the insurer’s liability for particular average losses. Because many losses only partially damage the cargo, a shipper must understand the particular average terms of the policy. A policy designed free of particular average (FPA) will not cover any partial losses. A policy FPA, followed by certain specified losses, will not pay for any partial or particular average losses of that nature. As such, an “FPA fire” policy will not pay for partial losses to the cargo due to fire.

4. Types of Coverage.

Marine cargo insurance is available for virtually any type of risk, for any cargo, destined for almost any port. The only limitations are the willingness of the insurer to undertake the risk and the price. The types of risk covered in a policy are described in the perils clause.

(1) The Perils Clause.

The perils clause covers the basic risks of an ocean voyage. It generally covers extraordinary and unusual perils that are not expected during a voyage. Examples of perils that are included are bad weather sufficient to overcome a seaworthy vessel, shipwreck, stranding, collision, and hitting rocks or floating objects. (An example of a perils clause follows in the next case.) But not every event that can damage goods is covered by this clause. Damage due to the unseaworthiness of the vessel is not included in a perils clause; neither is loss form explosion or pilferage, and the clause only covers losses while at sea. Moreover, only fortuitous losses are covered. Fortuitous is a concept that runs throughout insurance law. It means that the loss occurred by chance or accident and could not have reasonably have been predicted. For example, damage due to predictable winds or waves are generally not held to be fortuitous. Thus, if a ship sinks in calm seas and good weather, it is presumed that the loss was caused by the ship’s own unseaworthiness. Only if it is proven that the ship was seaworthy can it then be shown that the loss was due to a fortuitous event. Courts have held that damage from seawater due to improper stowage of goods is not fortuitous.

A shipper who desires additional coverage can purchase it from the insurer at an added charge. This is called a specially to cover clause. For instance, damage resulting from explosion is not generally covered in a standard perils clause, but insurance to cover it can be obtained in the form of an explosion clause. Similarly, additional coverage can be purchased to protect against the risks of fresh water damage, moisture damage, and rust or contamination of the cargo from chemicals, oil, or fuel. Many insurers have recently offered specially designed import-export insurance packages for shippers of perishable foodstuffs, tobacco, steel, and other products and commodities.

(2) All Risks Coverage.

An all risks policy covers all risks except those specifically excluded in the policy. These policies usually exclude damage from acts of war through a “free of capture and seizure”clause, damage or loss from delay in reaching the destination, or damage resulting from strikes and civil commotion. Coverage for strikes is available, but only at additional cost.

(3) War Risk.

Typically, marine insurance policies do not cover the risks of war. War risk insurance is available for ocean shipments. If war risk insurance is desired, the shipper will have to purchase it separately form the insurer. Under CIF terms, the seller is not expected to provide war risk insurance. If the buyer wants war risk coverage, it will have to agree on the price separately from the marine insurance provisions. The rates for war risk insurance are relatively stable in peacetime, but fluctuate almost daily in times of war.

(Abridged from Chapter 7 of the International Business Law and Its Environment written by Richard Schaffer, Beverley Earle and Filiberto Agusti, published by International Thomson Publishing in 2001)

[The Reflections]

1. Please explain the functions of bill of lading.

2. What is special drawing right?

3. What is clean bill of lading?

4. What is onboard bill of Lading?

5. What is received-for-shipment bill of lading?

6. What is general average?

7. What is particular average loss?

【The In-depth】

The Problem with Paper Bills of Lading

Carriers continue to issue bills of lading predominantly in paper form. Cargo owners, bankers, and carriers alike seem reluctant to retire a document so elegantly straightforward and capable of such heavy lifting. Yet, problems associated with the use of paper are developing into serious handicaps that are more aggravated with each passing year. The most prominentshortcoming of the traditional bill of lading is that it is a piece of paper, and unlike an electronic impulse, must be physically transported. If the shipper is lucky, the bill of lading is ready for pickup from the carrier the day after the vessel sails, but the average delay before the paper document is ready is three days, and it is sometimes not available for up to seven days. The documents must then be pouched overseas, generally directly to the consignee’s customs broker, adding roughly four days. The customs broker must then surrender the document to the carrier, which takes at least one business day and possibly two, as a large percentage of steamship lines have now nationally centralized their customer service functions in one location, often not actually near any port city. For example, American President Lines handles customer service functions, including documentation and cargo release, from Denver.

If a bank is involved, as for a letter of credit, the delays become acute. Two more parties, the seller’s bank and the buyer’s bank, must each have an opportunity to examine the document, and must then transmit it by courier to the next party downstream. Additionally, paper bills of lading must be laboriously hand checked, point by point, for discrepancies—a truly tedious duty that sometimes suffers from error. If the bank finds discrepancies, it must communicate with the parties to determine whether the discrepancies will be accepted or whether the documents must be redone. If the consignee does not accept the discrepancies, the documents must go back to the starting point. Confirming banks, to avoid the risk of not being paid, generally simply reject discrepant documents without checking with the applicant or the applicant’s bank. The import manager at a customs broker interviewed for this article found that, of the shipments she handled that moved on letters of credit, roughly 25 percent were penalized with demurrage charges because document delays prevented consignees from promptly retrieving their goods.

In recent years, the time allotted for transmittal of the bill of lading has shortened as ocean vessel transit times have become shorter. Vessels are getting faster, but carriers are also changing vessel routing strategies. For example, transit from Hong Kong to Seattle can be as short as nine days, and from Bremen to New York as short as ten days.

Further, port congestion has become a certain crisis in the United States and carriers are pushing to get import cargo quickly off the pier. At the same time, there is a serious shortage of containers because steel prices have gone up and new containers now cost about $ 2 800 apiece. A steamship line running six average-sized vessels in the Trans-Pacific service, a modest operation, would need at least 48 000 20-foot containers, 24 000 40-foot containers, or some combination thereof. Carriers are therefore charging more for demurrage (the penaltyassessed on cargo not promptly picked up) and allowing a shorter “free time” before demurrage begins. Some ports are also charging demurrage over and above what the carriers are assessing, and even rail lines are assessing demurrage for ocean containers in their care. For example, Maersk Sealand recently advised its customers that it would begin allowing only two free calendar days, excluding Sundays and holidays, for all cargo moving on the Union Pacific, and would charge at the rate of $ 225 per day for the first five days （including Sundays and holidays）, $ 250 per day for the next five days, and $ 400 per day thereafter. Refrigerated containers and special equipment incur higher rates. The delay in transmitting the bill of lading can cost hundreds per day, per container, in direct costs.

Additionally, the cost of the importer’s cash that is tied up in a shipment until it can be sold contributes to the cost of delayed shipments. Delay of a shipment can also render it worthless. For example, holiday ornaments that arrive too late to reach retailers’ shelves before the holiday have a value well below cost.

As cargo owners struggle to curtail the delays that bedevil their balance sheets, they are finding that the carriers, the other parties to the bill of lading, are not making a serious effort to assist. The approach of the carriers is summed up in a quote from one of their own executives：

We need customers to embrace the technology so they can get better service when they call. Carriers cannot afford to keep increasing their headcount along with trade to handle mundane booking, tracking and payment chores. Shippers need to build information technology links to carrier’s systems that will enable more self service, simplification and automation.

Carriers have abdicated the role of a provider of a service and are instructing cargo owners that they should prepare to look after themselves. Carrier systems themselves, however, can be unreliable. An alternative to the current system that also permits “self service” without sacrificing control by the appropriate parties would cut additional delays that accrue from carrier indifference.

In the face of these problems with the traditional paper bill of lading as a negotiable instrument, and in light of the increasingly relaxed attitude that many cargo owners have about the role of the bill of lading, industry specialists and legal professionals are considering a variety of electronic alternatives as possible solutions, none of which have taken root in a meaningful way.

A recurring component of these various proposals is dependence upon a reliable intermediary. The substitution of electronic documents for paper ones has been explored in avariety of contexts, whether the document in question is a bill of lading, chattel paper or electronic transfer of funds, and users seem repeatedly to have the same concerns. First, electronic data can be lost in the event of a hardware or software failure. Second, when information is in digital form, it is possible to generate perfect copies, indistinguishable from the originals.

(Abridged from “can the Electronic Bill of Lading Co paperless?” by Susan Beecher, from 40 I nt’l Law. 627 (2006))

[The Terms]

1. bill of lading: 提单

2. carrier: 承运人

3. custom broker: 报关商

4. consignee: 收货人

5. letter of credit: 信用证

6. discrepancy: 不符

7. confirming bank: 保兑银行

8. demurrage: 滞留费

9. negotiable instrument: 可转让票据

[The Discussions]

1. The problems that are developing specifically with the bill of lading as the shipping industry tries to address economic and national security needs of the 21st century using 18th century tools.

2. The legal and market expectations that an electronic bill of lading must meet.

3. Can the electronic bill of lading go paperless in your opinion?

【The Further Sources】

William Leung, Misdelivery of Cargo without Production of Original Bill of Lading: Applicability of the Mandatory Legal Regime of Hague-Visby and the One Year Time Bar, 39 J. Mar. L. ＆ Com. 205,2008.

Michael E. Crowley, the Limited Scope of the Cargo Liability Regime Covering Carriageof Goods by Sea: The Multimodal Problem, 79 Tul. L. Rev. 1461, 2005.

Davies, Martin, Litigation Fights Back: Avoiding the Effect of Arbitration Clauses in Charterparty Bills of Lading”, 35 J. Mar. L. ＆ Com. 617, 2004.

Takahashi, Koji, Judicial Decree to Terminate the Validity of Lost Bills of Lading—Usefulness and Jurisdiction”, 39 J. Mar. L. ＆ Com. 551 ， 2008.

John M. Daley, The Extension of an Ocean Carrier’s Limitation of Liability to the Inland Carriage of Goods Under a Through Ocean Bill of Lading: How the Second and Eleventh Circuits Have Undone the Work of the Supreme Court in Kirby， 33 Tul. Mar. L. J. 111, 2008.