Lloyd's Maritime and Commercial Law Quarterly
Transfer of documents
Hugo Tiberg *
The transfer of documents provisions of the CMI Draft Instrument on Transport Law 2002 are based on Anglo-American notions. Differences to Continental-European law are both conceptual and substantive. The Draft’s key notion “negotiability” denotes transferability, while in Continental law it means a document’s quality of giving good-faith holders the rights expressed, irrespective of past defences. The Draft’s dichotomy of negotiable (“order”) and non-negotiable (“straight”) documents ignores the Continental third category of “recta” documents, negotiable in the hands of the named holder but not of others. The failure to realize such distinctions has detracted from the value of the Draft and will raise obstacles to its general acceptance.
At the Southampton Maritime Law Institute’s excellent Romsey Colloquium on the CMI Draft Instrument on Transport Law 2002,1
the subject of transferability of documents in general was practically eclipsed by the special aspect of electronic communication according to the Bolero
method. As a result there was no time for comments on the general question, which is one rather neglected by transport lawyers. Fundamental differences of approach between Continental and Anglo-Saxon lawyers are often ignored; and superficial similarities, such as the manner of transfer, are thought to make for easy assimilation. A look into some basic distinctions should reveal both difficulties and openings. I shall not, however, attempt to delve in much depth into the substantive rules proposed by the Draft Instrument.
The Continental law to which I shall refer is primarily the Scandinavian law and the German law from which it is derived. I should expect a similar understanding to prevail in other Continental systems, but I have not yet studied any of these and invite comments.2
Terminology
A key notion in the Draft Instrument is the adjective “negotiable”, with the corresponding noun “negotiability”. Neither term is explained in the Definitions, except that a
* Professor of Maritime Law, Stockholm University.
1. See [2002] LMCLQ 304–441.
2. The gist of what I shall have to say on these matters has already been presented in my article “Towards a common understanding of transport documents”, in Cargo Liability in Future Maritime Carriage
(eighth Hässelby Colloquium, 1997), (Stockholm, 1998) and, in more detail, in “Legal Qualities of Transport Documents” [1998] Tulane Mar. L.J. 1. For support and references, I content myself with referring to those articles, particularly the latter.
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