Lloyd's Maritime and Commercial Law Quarterly
Transport documents: their transferability as documents of title; electronic documents
Malcolm Clarke *
The CMI/UNCITRAL cargo liability regime provides for the use of negotiable electronic documents and envisages that rules of procedure for their use will be agreed at some future time. That time has not come so this paper considers a current electronic bill of lading, Bolero, and looks at the obstacles that Bolero and any such solution as might be advanced by UNCITRAL must meet and overcome. The paper concludes that: to be effective, the multilateral contract on which Bolero is based must be governed, as it purports to be, by English law; and that any dispute must be brought before the English courts, where, traditionally, respect is shown for commercial practice and where, currently, an inventive and undemanding approach is taken to the legal requirement of consideration. Moreover, Bolero must inspire confidence in those invited to use it, notably the banks, that sensitive commercial information is secure: both secure in the cryptography of transmission on open networks and in the electronic vaults of the central registry set up by the Bolero Corporation.
1. Introduction
It is no surprise that the CMI/UNCITRAL cargo liability regime provides for the transferability of traditional maritime transport documents as documents of title. What perhaps nobody (certainly not the author) is entirely sure about is the future of electronic documents1
—in the context of carriage by sea. Consignment notes used for transport by air and by road are not intended to be transferable. The assumption is that goods reach destination relatively quickly and it is unlikely that they will be sold during transit; or, if they are to be sold, it can be done in other ways. So this paper focuses on the electronic bill of lading, sometimes called the “virtual” or “dematerialized” bill of lading, issued for carriage by sea.
Chapter 11 of the CMI/UNCITRAL regime is headed “Right of Control”, which “means the right under the contract of carriage to give the carrier instructions in respect
* Professor of Commercial Contract Law in the University of Cambridge.
1. The importance of the electronic medium for the future of international trade has been recently recognized by the United Nations. See Electronic Commerce and International Transport Service:
Report by the UNCTAD Secretariat, 31 July 2001 (TD/B/COM.3/EM.12/2), paras 12 ff. Also by the English Law Commission, which has included in its Eighth Programmes of Law reform as Item 2 (of 5) examination “of the current law for domestic and international law reform with a view to assisting the development of domestic proposals and to making recommendations of additional reforms necessary to facilitate electronic commerce” (Law Com. No. 274, 2001). However, work had begun under the previous programme on facilitating electronic commerce in the international sale and carriage of goods and the associated banking and insurance transactions. An “Advice” to the UK Government, published in December 2001, underlined the importance of “electronic commerce” (para. 1.1) but concluded that no legislative action was necessary for the time being.
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