Bill of Lading Central Registry System

Carriers are coming under increasing pressure to release goods without production of documents and, while it would be possible for carriers to insure themselves against the risks involved, P & I Clubs at present do not think it appropriate to offer such cover. The existing practice of using letters of indemnity is expensive and banks are increasingly reluctant to tie up credit in this way. The attitude of the carrier tends to be that ‘presentation is the cargo- owners’ problem’ – a problem resulting from the business practices adopted by the cargo owner for his own benefit. In the view of the carrier, therefore, the cargo owner should bear the cost of any resultant changes required in the documentation. One radical solution to the problem involves the development of some form of registry system. This proposal, which has never been developed beyond an experimental stage, envisages the establishment of a central registry at which the bill of lading will be deposited by the shipper immediately after being issued by the carrier. The bill will be issued at the port of loading in the normal negotiable form but, once deposited at the registry, there will be no further physical transfer of the document. Instead, all subsequent transactions involving the bill will be recorded at the registry on notification by the consignee of record. Facilities will also be available for the carrier to register unpaid charges under the contract of carriage and for any bank involved to register its security interest under a documentary credit. Each of the parties will have access to the registry through an appropriately coded key which will not only enable them to register charges against the bill, but also to have access to relevant information it contains such as the quantity and condition of the cargo shipped. Under the scheme the carrier is required to notify the registry of his estimated time of arrival when not less than 48 hours sailing time from the port of discharge. The registry will then contact the party currently recorded as consignee requesting notification, not less than 24 hours before the estimated time of arrival of the vessel, of the identity of the person entitled to delivery of the goods. Once the registry is informed of the name of the receiver, no further transactions involving the bill can be registered, and the carrier will be instructed to deliver the cargo to him. Such instructions from the registry will be treated as equivalent to the presentation of the bill to the carrier and will operate as a discharge of the carrier’s obligations under the contract of carriage. This system has obvious attractions in that it uses existing documents and procedures and requires no change in the existing body of case law. Thus it is envisaged that notification of any transaction involving the bill to the registry will have the same effect as a physical transfer of the bill, in that it will operate to pass the property in the goods to the party recorded as assignee, and also entitle him to rely on the representations in the bill as to the quantity and condition of the goods shipped. No transaction will be binding on the parties until it has been notified to the registry for registration but, once registered, it will be secure against sub- sequent assignees who will be provided with access to the current state of the documents. Possibly the greatest attraction of the scheme is that it will solve the problem of the late arrival of documents in that the carrier will obtain his discharge by delivering to the party specified by the registry, who should have no difficulty in identifying himself in normal circumstances. There would be no danger of competing claims from holders of different original bills, since no bill would be in circulation. Indeed, there would be little purpose in producing more than one original although, if the practice were retained, it would be essential that the registry should require the deposit of the entire set. A number of formidable obstacles need to be surmounted before a registry system of this type could be successfully introduced. Banks and P & I Clubs need to be convinced that it would provide watertight security for their interests so that there could be no doubt as to the identity of the receiver entitled to delivery. Again, a registry would be expensive to set up and there is the obvious problem of who is to bear the cost. No doubt running costs could be met from users’ fees, but there is still the problem of the substantial initial outlay necessary to establish the registry. Carriers and their P & I Clubs argue that the major costs should be borne by cargo owners since the presentation problem stems solely from the methods they adopt to conduct their business. There is also the question as to whether it would be prefer- able to establish one central registry or a series located at strategic points throughout the world. In either case it would be essential for the bill to contain a choice of law clause since problems would clearly arise as to the applicability of the Hague or Hague/ Visby Rules to bills deposited in such a registry. Finally, there is the problem of who is to bear the risks of mistakes or negligence on the part of the staff of the registry which result in a misdelivery of the cargo. Presumably the registry will be an independent body separate from carrier or cargo interests and possibly established by a consortium of banks. If such a body did not seek contractually to exclude liability, then the resultant insurance costs might lead to a substantial rise in fees. Merely to enumerate the main queries raised concerning the registry would suggest that some time may elapse before the proposals are implemented. A possible practical solution Mention must finally be made of one practical solution to the problem of the late arrival of documents which has recently been developed. There is an increasingly common practice, particularly in the oil trade, for a shipper to give one original bill of lading to the master with the instruction to deliver it to a specified person at the port of discharge and, on receiving that original bill of lading back, to deliver the cargo against it. The bill may either contain the name of the consignee or be made out to ‘Order’ and indorsed by the bank. While this prac- tice certainly disposes of the problem of the late arrival of documents, there are certain doubts as to its desirability and legal validity. On the one hand, the master is exposing the carrier to the risk of an action in conversion should he deliver to the wrong party, a risk which is con- siderably increased if the other original bills are allowed to remain in the hands of the ship- per, thus providing the opportunity for a fraudulent indorsement. While the carrier may be able to raise an estoppel against the shipper, so long as the master is carrying out the latter’s instructions, he may not be protected against bona fide indorsees for value of other original bills in the set. As against third parties there is no certainty that, in these circumstances, delivery of cargo against presentation of the bill will act as a discharge for the carrier.