Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

THE NEGOTIABLE TRANSPORT DOCUMENT

Benjamin Geva*

With the emergence of a long-distance land-based trade, along with the expansion of a non-sea based multimodal trade, a demand arose for a negotiable transfer document which is not limited to marine transport. A series of international Conventions responded to such demand by providing for new types of negotiable transport documents. However, these Conventions failed to accord to such documents the features of a document of title and to clarify their negotiable character. The task of overcoming this obstacle is hindered by the fragmentary nature of the law governing the marine bill of lading, which is the classic transport document serving as a document of title. Endeavouring to clarify and rationalise that law and using English law as a basis for the investigation, this article critically discusses the negotiability and legal nature of transferable transport documents with a view to providing a cohesive, harmonised legal framework to govern them and form the basis for a subsequent adaptation to apply to electronic transport records.

* Professor of Law, Osgoode Hall Law School of York University, Toronto, Ontario, Canada. I am grateful to Michael Bridge for reviewing an earlier draft and providing useful comments, particularly to Jun Xu, Xavier, Fornt, Buddy Baker and Laurie Railas for useful discussions and information. For library assistance I am mostly grateful fo Anne Cathrine Mostad, Lucia Scheidl-Kornis, Samira Musayeva and Sharon Wang. I also thank Viktor Hohlacov for research assistance. All errors, misunderstandings, and deficiencies are mine.

This article builds on and develops the doctrinal analysis of “The Multimodal Electronic Transferrable Transport Record (ETTR): A survey of laws and basic concepts”, a study commissioned (and copyrighted) by the United Nations and submitted by this author to UNCITRAL, Vienna, on 29 October 2021. The full study is available at: https://digitalcommons.osgoode.yorku.ca/scholarly_works/2867/.

The following abbreviations are used:

BEA: Bills of Exchange Act 1882;

BFPV: bona fide purchaser for value;

Carver on Bills of Lading: FD Rose and FMB Reynolds, Carver on Bills of Lading, 5th edn (London, 2022);

CISG: United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) 1489 UNTS 3;

Goode & McKendrick: E McKendrick, Goode and McKendrick on Commercial Law, 6th edn (London, 2020);

Railas: L Railas, The Rise of the Lex Electronica and the International Sale of Goods: Facilitating Electronic Transactions Involving Documentary Credit Operations (Helsinki, 2004); available at https://helda.helsinki.fi/bitstream/handle/10138/224327/THERISEO.pdf?sequence=1.

RR: Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2008 (Rotterdam Rules);

SGA: Sale of Goods Act 1979;

TDC: transport document of control;

TTDC: transferable transport document of control.

The negotiable transport document

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