Date of Award
2020
Document Type
Thesis
Degree Name
Doctor of Philosophy in Maritime Affairs
Specialization
Ph.D (Maritime Affairs)
Campus
Malmö, Sweden
Country
Iraq
Abstract
The increasing use of electronic devices, new means of communication and Internet affects many areas of life, including trade and transportation. One effect is the dematerialization of bills of lading. Paper bills of lading have traditionally performed three main functions in maritime transportation: (1) as a receipt for the goods, (2) as containing or evidencing the contract of carriage of goods and (3) as a document of title. This legal research examines whether electronic bills of lading can legally perform these three functions as functional equivalents to paper bills of lading. It studies the recognition of electronic bills of lading under the current law. The research combines two approaches: the international approach and the English law approach. The international approach deals first with paper bills of lading, as a foundation for the research, since electronic bills of lading are intended to be functional equivalents to paper bills. It studies the origin, definition, types and, most importantly, functions of paper bills to be dematerialized by electronic bills, as well as the current international framework that governs paper bills of lading. This approach studies the electronic bills of lading and traces their path of evolution from first attempts until their use in the market nowadays. The international approach examines the recognition of electronic bills of lading under key instruments of relevant international convention, model laws and contract forms. The relevant international convention is the Convention on Contracts for Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules). The model laws involve the study of CMI Uniform Rules for Electronic Bills of Lading 1990 and UNCITRAL Model Law on Electronic Transferable Records, 2017 (MLETR). The contract forms deal with the Bills of Lading Electronic Registry Organization (Bolero) Rulebook and Electronic Shipping Solutions (essDOCS) Databridge Services and Users Agreement (DSUA). The English law approach studies if and how the current case law and statutes recognize electronic bills of lading. It examines whether electronic bills of lading can function as legal equivalents to paper bills of lading under current English law. Some other national laws of the
3
common law system are generally addressed in relation to the recognition of electronic bills of lading, such as the laws of the United States, Australia, India and Singapore. The thesis finds that electronic bills of lading may perform the three functions under the key instruments of the international approach. However, the Rotterdam Rules are still not in force yet and MLETR provides for the third function only. The contract forms provide a provisional solution based on agreement of parties to the contract of carriage to bridge the legal gap under international law. As far as the English law approach is concerned, the thesis finds that the case law may admit the electronic bill of lading as a receipt for the goods and evidencing or containing the contract of carriage. There are cases that already recognized the evidence in electronic forms, electronic signatures, electronic messages and electronically stored information. Some statutory provisions also may apply to the electronic bill of lading as a receipt for the goods and evidencing or containing the contract of carriage. However, some other statutory provisions may not apply in this regard since the intended regulations under subsection 1(5) of Carriage of Goods by Sea Act (COGSA 1992) have not been issued yet. Moreover, there is no case law nor statutory provision to recognize the third function of electronic bill of lading as a document of title. Since electronic bills of lading should duplicate the three functions of paper bills, the present English law does not recognize the electronic bills of lading. However, as under the present international law, the electronic bills of lading are used under the contract forms.