When a non- negotiable transport document indicating

of the goods is issued

According to Article  51.2(a) of the Rules, when a non- negotiable transport document indicating that it shall be surrendered in order to

18 See Xianjiang Wu & Haibo Chen, “Study on the Right of Control” (2003) 14 Annual of China Maritime Law 36 at 44.

19 Rotterdam Rules, supra note 10, art. 51.1(a).

20 See Xianjiang Wu & Haibo Chen, “Review on the Provisions Regarding the Right of Control in the CMI Draft” (2001) 12 Annual of China Maritime Law 371 at 376 [Wu

& Chen, “Review”].

21 See van der Ziel, supra note 13 at 378-379.

22 See Ernest J. Weinrib, The Idea of Private Law (Oxford : Oxford University Press, 2012) at 10.

23 See Carl E. McDowell & Helen M. Gibbs, Ocean Transportation (Washington D.C. : BeardBooks, 1999) at 12-13 ; Lachmi Singh, The Law of Carriage of Goods by Sea (Totton : Bloomsbury Professional, 2011) at 26.

obtain delivery of the goods is issued, the shipper is the controlling party and may transfer the right of control to the consignee named in the trans-port document.

In some earlier draft instruments of the Rules, transport documents had simply been divided into negotiable ones and non- negotiable ones,

while in the final text of the Rules, non- negotiable transport documents were subdivided into those indicating that they shall be surrendered in order to obtain delivery of the goods and those without such indication.

Such change arose from the existence of two sorts of transport documents, namely straight bill of lading and sea waybill.

The former requires the carrier to deliver the goods to a named person.

The latter is a document that serves as proof that there has been a contract of carriage between the shipper and the carrier and that the carrier has received the goods from the shipper and agreed to deliver them to a named person.

Neither of them falls within the scope of negotiable transport documents under which the goods shall be “consigned to the order of the shipper, to the order of the consignee, or to bearer.”

However, there is a noteworthy dif-ference between them, that is, the named consignee under a straight bill of lading needs to surrender the document to obtain delivery of the goods, while the named consignee under a sea waybill does not.

The draftsmen

24 Rotterdam Rules, supra note 10, art. 51.2(a).

25 See Preliminary Draft Instrument on the Carriage of Goods by Sea, UNCITRALOR, 2002, UN Doc. A/CN.9/WG.III/WP.21 ; Draft Instrument on the Carriage of Goods [Wholly or Partly] [by Sea], UNCITRALOR, 2003, UN Doc A/CN.9/WG.III/WP.32 ; Draft Convention on the Carriage of Goods [Wholly or Partly] [by Sea], UNCITRALOR, 2005, UN Doc. A/CN.9/WG.III/WP.56. See also Yuzhuo Si & Lixin Han, eds., Study on the Rotterdam Rules (Dalian : Dalian Maritime University Press, 2009) at 326.

26 See Rotterdam Rules, supra note 10, arts. 46, 51.2.

27 See Transport Law : Preparation of a Draft Convention on the Carriage of Goods [Wholly or Partly] [by Sea] – Proposal by the Netherlands on Bills of Lading Consigned to a Named Person, UNCITRALOR, 2006, UN Doc. A/CN.9/WG.III/WP.68 at para. 2 [Proposal].

28 See Sukhninder Panesar, “Is a Straight Bill of Lading a Document of Title ? ” (2004) 25 Bus L. Rev. 196 at 196-197.

29 See William Tetley, “Waybills : The Modern Contract of Carriage of Goods by Sea”

(1983) 14 J. Mar. L. & Com 465 at 466-467. See also Tim Howard, “The Carriage of Goods by Sea Act 1992” (1993) 24 J. Mar. L. & Com. 181 at 189.

30 See Rotterdam Rules, supra note 10, art. 1.15. See also Stasia M Williams, “Something Old, Something New : the Bill of Lading in the Days of EDI” (1991) 1 Transnat’l L. &

Contemp. Probs. 555 at 566.

31 Yuzhuo Si, ed., Maritime Law (Beijing : Law Press, 2003) at 142.

of the Rules accepted a proposal presented by the Netherlands in 2006 and subdivided non- negotiable transport documents by the presentation rules stated therein.

In fact, Article 51.2(a) of the Rules basically reproduced Article 6 of the CMI Uniform Rules for Sea Waybills.

Both of them provide that the

ship-32 In the proposal, the Netherlands contended that :

A sea waybill is also a non- negotiable document that normally is consigned to a named person. In order to distinguish the bill of lading consigned to a named person from such sea waybill, and fully in line with its legitimating function, the definition should

… include that the presentation rule must be stated in the document itself. For the reasons outlined above, in the proposals hereunder the bill of lading consigned to a named person is described as “a non- negotiable transport document that indicates that it must be surrendered in order to obtain delivery of the goods”.

The proposal was accepted in the Report of Working Group III (Transport Law) on the Work of Its Seventeenth Session. In the report, it was stated that :

After discussion, the Working Group decided that provisions on bills of lading con-signed to a named person should be included in the draft convention. It was proposed in paragraph 12 of A/CN.9/WG.III/WP.68 that the bill of lading consigned to a named person should be defined as “a non- negotiable transport document that indicates that it must be surrendered in order to obtain delivery of the goods”. It was explained that the intention of the proposal was to treat such bills of lading as non- negotiable docu-ments within the ambit of the draft convention, and that the document should carry with it the requirement that it must be shown or surrendered to the carrier when the possessor of the document wanted to exercise any right under the contract of carriage evidenced by the document, or the so- called “presentation rule”. The final necessary element of the definition was thought to be that the “presentation rule” should be stated on the document itself in order to indicate the element of negotiability of the document. It was thought that there was an appropriate combination of elements in the definition to allow it to fit with current commercial practice, in which parties could agree on the requirement of presentation of a non- negotiable document, and that stan-dard form bills of lading consigned to a named person typically contained a statement of the “presentation rule”.

Proposal, supra 27 at paras. 11, 12 ; Report of Working Group III (Transport Law) on the Work of Its Seventeenth Session (New York, 3-13 April 2006), UNCITRALOR, 2006, UN Doc. A/CN.9/594 at paras. 211-212 [Report].

33 See Uniform Rules for Sea Waybills, art. 6, online : Comité Maritime International

<http://www.comitemaritime.org> [Uniform Rules]. Article 6 of the Uniform Rules provides that :

(i) Unless the shipper has exercised his option under subrule (ii) below, he shall be the only party entitled to give the carrier instructions in relation to the contract of carriage.

Unless prohibited by the applicable law, he shall be entitled to change the name of the consignee at any time up to the consignee claiming delivery of the goods after their arrival at destination, provided he gives the carrier reasonable notice in writing, or by

per shall be the controlling party, unless he opts to transfer the right of

control to the consignee.