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The Concerns of the Shipping Industry Regarding The THE CONCERNS OF THE SHIPPING INDUSTRY REGARDING THE APPLICATION OF ELECTRONIC BILLS OF LADING IN PRACTICE AMID TECHNOLOGICAL CHANGE A Thesis Submitted in partial fulfilment of the requirements for the award of Doctor of Philosophy Division of Law and Philosophy University of Stirling October 2015 Farhang Jafari ABSTRACT In the sea trade, the traditional paper-based bill of lading has played an important role across the globe for centuries, but with the advent of advanced commercial modes of transportation and communication, the central position of this document is under threat. The importance of the bill of lading still prevails as does the need of the functions that this document served in the past, although in a changed format. In the recent past, the world has witnessed a lot of debate about replacing this traditional paper-based document with an electronic equivalent that exhibits all of its functions and characteristics, both commercial and legal. More specifically, unlike many rival travel documents, such as the Sea Waybill, a bill of lading has two prominent features, that is to say, its negotiability and its acceptability as a document of title in certain legal jurisdictions that are required to be retained in an electronic bill of lading so as to also retain the prominence of this document in the future landscape. This thesis is, however, more concerned about the legal aspects of adopting the electronic bill of lading as a traditional paper-based legal document as well as an effective legal document in the present age. However, the scope of this debate remains primarily focused on the USA and UK jurisdictions. In the course of this thesis, it is observed that, in the past, the bill of lading has been subject to a variety of international regimes, such as The Hague Rules and The Hague-Visby Rules, and presently efforts are being made to arrive at a universal agreement under the umbrella of The Rotterdam Rules, but such an agreement is yet to arrive among the comity of nations. On the other hand, efforts made by the business community to introduce an electronic bill of lading are much louder and more evident. The private efforts, such as the SeaDocs System, CMI Rules, and the BOLERO Project, etc., were, however, received by the fellow business community with both applause as well as suspicion. At the i same time, there are a number of concerns voiced by the international business community on the legislative adoptability in national and international jurisdictions and the courts’ approach in adjudicating cases involving electronic transactions and these are making the task of adoption of electronic bill of lading in the sea-based transactions a difficult task. Therefore, in the absence of any formal legal backing from national and international legislations, these attempts could not achieve the desired results. In this thesis, the present situation of the acceptability of electronic transactions in general, and of the electronic bill of lading specifically, has also been discussed with reference to certain national jurisdictions, such as Australia, India, South Korea and China, in order to present comparative perspectives on the preparedness of these nations. On the regional level, the efforts made by the European Union have also been discussed to promote electronic transactions within its jurisdiction. All the discussion, however, leads to the situation where the level of acceptability of electronic bill of lading in the near future is found to be dependent upon the official efforts from the national governments and putting these efforts towards arriving at an agreement on Rotterdam Rules as early as possible. The other area of importance revealed in this thesis is the need for change in juristic approach by the courts while interpreting and adjudicating upon cases involving electronic transactions. On the whole, this thesis has provided a cohesive and systematic review, synthesis and analysis of the history of the bill of lading, its importance as a document of title, and attempts to incorporate its important functions within the fast-paced electronic shipping commerce of today. In such a way it has provided a valuable contribution to the literature by providing a comprehensive resource for jurists, policy-makers and the business community alike, as they work towards adapting the bill of lading so that it might be successfully applied in electronic form. ii DECLARATION I, Farhang Jafari, hereby declare that no portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or institute of learning. iii ACKNOWLEDGEMENTS First and foremost, I would like to express my gratitude to God for giving me the strength to stay committed to my research throughout the highs and lows of my PhD programme. My heartfelt thanks to my principle supervisor, Professor Fraser Davidson, for all the support and encouragement he has offered over the past three years of my Ph.D. studies. I will forever be thankful to my family. Words fail to express how grateful I am to my father, Gholam Reza, my mother, Azam, and my sister, Forough, for their spiritual guidance, constant support, and unconditional love. Many thanks go out to the support I have received from the staff of the School of Law at the University of Stirling. I am also indebted to all my PhD colleagues in F30 for their continuous support and love throughout my PhD. iv Table of Contents ABSTRACT ..................................................................................................................................... i ACKNOWLEDGEMENTS ........................................................................................................... iv Reported Case Law ..........................................................................................................................x Conventions, Legislations and Rules ........................................................................................... xiv INTRODUCTION TO THE RESEARCH WORK .........................................................................1 A. Introduction to and Justification of the Topic of the Research: ....................................... 1 B. Research Objectives: ........................................................................................................ 5 C. Research Questions: ......................................................................................................... 6 D. Research Methodology: .................................................................................................... 7 E. Limitations: ....................................................................................................................... 8 F. Chapter Breakdown: ......................................................................................................... 9 CHAPTER ONE: ROLE OF BILL OF LADING IN MARITIME TRADE ................................12 1.1 Bill of lading—Definitions: ............................................................................................ 13 1.2 Historical Perspective of the Bill of Lading: .................................................................. 13 1.3 Birthplace of the Bill of Lading: ..................................................................................... 20 1.4 Straight Bill of Lading versus Sea Waybill: ................................................................... 21 1.5 Types of Bill of Lading: ................................................................................................. 24 1.5.1 Straight or “Non-negotiable” Bill of Lading: .......................................................... 25 1.5.2 Order Bill of Lading: ............................................................................................... 27 1.5.3 Blank or Bearer Bill of Lading: ............................................................................... 28 1.5.4 Clean or Claused Bill of Lading: ............................................................................. 28 1.5.5 Through Bill of Lading: ........................................................................................... 30 1.5.6 Feeder/Cover bill of Lading: ................................................................................... 31 1.6 Reasons for Changing Nature of Bill of Lading over Time: .......................................... 32 1.7 Summary of Chapter One: .............................................................................................. 40 CHAPTER TWO: FEATURES AND CHARACTERISTICS OF THE TRADITIONAL BILL OF LADING AND THE NEED FOR ELECTRONIC TRANSACTIONS ..................................42 2.1 Bill of Lading Act as Receipt of Goods: ........................................................................ 44 2.2 Bill of Lading Proves Contractual Obligation: ............................................................... 50 v 2.3 Debate on Contractual Nature vs Evidentiary Nature of Bill of Lading under US Jurisdiction: .................................................................................................................... 51 2.4 Debate on Contractual Nature vs. Evidentiary Nature of Bill of Lading under British Jurisdiction: .................................................................................................................... 55 2.4.1 Contractual Relationship between the Carrier and the Shipper:.............................. 57 2.4.2 Nature of the Bill of Lading in the
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