Based on the first known maritime trade law of the Mediterranean, Ordinamenta et Consuetudo Maris, whose origin was published in the 11th century; The bill of lading, which has a legal quality to prove that the goods loaded on the ship with the aforementioned law has been received by the carrier, and which consists only of a record kept in a parchment book at that time; In modern law, it is defined as a valuable document that proves that a contract of carriage has been made, shows that the goods have been received by the carrier or loaded on the ship, and that the carrier is obliged to deliver the goods only upon presentation of it.
In this way, the bill of lading; After the cargo is received, the goods are received for carriage by the carrier in the type, quantity and condition specified in the bill of lading, which is arranged unilaterally by the carrier or his representative (the captain or the carrier or a representative authorized by the captain in this regard); It is a valuable document that contains the undertaking by the carrier that the goods will be delivered to the person who appears to be the rightful owner of the bill of lading at the destination port, and also proves the existence of a contract of carriage (freight contract). With this article, in the light of the basic explanations above, first of all, the types and arrangement of the bill of lading, which is one of the most important bills of international maritime trade, have been revealed; Finally, three basic functions of a bill of lading are explained and evaluated.
II. TYPES AND FORM OF BILL OF LADING
In accordance with the Turkish Commercial Code No. 6102 (hereinafter referred to as the “TCC“), bill of lading can be arranged in two types, namely, delivery bill of lading and loading bill of lading in terms of its legal function. While expressing the delivery bill of lading issued with the permission of the shipper for the goods received for carriage but not yet actually loaded on the ship, the loading bill of lading refers to the type of bill of lading issued in return for the return of the bill of lading after the goods are loaded on the ship, in other words, the goods are directly in the possession of the carrier. If an annotation is given on the delivery bill of lading regarding when and on which ship the goods were loaded, this bill of lading will now have the effect of a bill of lading.
On the other hand, a bill of lading can be issued as a negotiable document as a registered, order or bearer. A registered bill of lading containing the name of a specific person pursuant to the TCC can be issued in the name of the buyer of the goods, as well as in the name of the shipper, the carrier and even the captain of the ship, in accordance with the 3rd paragraph of Article 1228 of the TCC. In this case, the right to demand the delivery of the goods belongs to the person whose name is written on the bill of lading or to the person to whom the receivable is transferred through the delivery of the bill, as in other registered bills. The most common to-order bill of lading in practice is the bill of lading in which the record “to order” or “to the sender's order” is placed. The bill of lading written to the order is transferred with the endorsement of the bill and the passing of the possession on the bill. In this case, the person whose rights can be understood from the mutual and several endorsements becomes the legitimate bearer and therefore the person who has the right to demand delivery of the obligation. Bearer bill of lading, on the other hand, is defined as the type of bill of lading sent in the text of the bill, although it is rare in practice, in which the name of the bill of lading is not written or the order record is not included.
III. CONTENT OF THE BILL OF LADING
Bill of Lading; it may contain records related to the general type, amount, if any, of the goods loaded on the ship or received for loading, declared by the shipper of the goods, and the signs required to distinguish the goods from other goods. Although the records that can be placed on the bill of lading are specified in article 1229 of the TCC, these records do not constitute the mandatory content of the bill of lading, in other words, the absence of one or more of these records does not affect the legal validity of the bill of lading.
The captain who carries and represents him; the shipper is obliged to write the information about the goods declared by the shipper on the bill of lading; has its authority in accordance with TCC 1239/1. The reason for this is; the bill of lading constitutes the presumption that the goods have been received in writing in the text of the bill of lading; while the carrier puts the shipper's declarations in the text of the bill of lading, these annotations on the bill of lading prevent the bill of lading from forming a presumption in terms of the aforementioned records, provided that it is justified. Otherwise, in accordance with TCC 1239/2, the carrier is deemed to have made a declaration that the goods are in good condition externally on the bill of lading. A bill of lading containing a record that the externally obvious condition of the goods is good is called a clean bill of lading in practice.
In terms of legal liability arising from the declarations in the bill of lading, in any case, the shipper is obliged to make a full and correct statement about the goods received for carriage or loaded on the ship in accordance with TCC 1145, and even if he is not at fault, he is responsible for the losses incurred by the carrier due to the inaccuracy of his statements.
IV. FUNCTIONS OF BILL OF LADING
The bill of lading, which is a negotiable document, has three basic functions; (i) prove that a contract of carriage (freight) has been made (ii) shows that the goods have been received by the carrier and loaded on the ship, representing the goods loaded on the ship accordingly, and finally (iii) that the carrier is obliged to deliver the goods to the legitimate holder of the bill of lading upon presentation of the bill of lading. contains.
(i) Bill of Lading's Freight Contract Proof Function
Pursuant to article 1228/1 of the TCC, the bill of lading is a bill of lading that proves the conclusion of a freight contract between the parties and the shipper. In this respect, the bill of lading is essentially independent of the freight contract and is usually issued after a freight contract is concluded. In concrete terms, the arrangement of the bill of lading by the carrier; It proves that the goods were loaded on the ship for the purpose of transporting the goods in accordance with the will of both the shipper and the carrier, and therefore a formal freight contract was made between the parties. In parallel with this, with Article 1237 of the TCC; It is stipulated that the terms and conditions in the bill of lading will be taken the basis of the relations between the carrier and the bill of lading bearer, and the relations between the carrier and the shipper will be regulated according to the provisions of the freight contract.
On the other hand, the bill of lading may also contain the provisions of the freight contract between the shipper and the carrier, according to the written terms and conditions; In this respect, it also regulates the legal relationship between the carrier and the shipper. This issue is in Turkish legal doctrine; It is stated that if the bill of lading contains some terms and conditions that are customary to be found in the freight contract due to its qualities and characteristics, the bill of lading can be accepted as a freight contract in terms of those terms and conditions.
(ii) Bill of Lading's Function to Represent Goods
In short, the function of the bill of lading to represent the goods is to have the opportunity to dispose of the goods in the possession of the carrier by means of the bill of lading. With this feature, the bill of lading is a valuable document that represents the goods, and this opportunity will be available if the following conditions specified in article 1234 of the TCC are met together:
- The goods must have been received for transport, in other words, the carrier must have acquired possession of the goods.
- Bill of lading must be handed over and delivered.
- The bill of lading must be duly transferred to the person authorized to receive the cargo. With a clearer explanation, the delivery of the bill of lading; In registered bills of lading, it must be made to the sender who is mentioned by name, and to the person to whom the bill of lading is endorsed in order bills of lading.
If the above conditions are fulfilled together, the legal consequences regulated in Articles 957 and 980 of the TCC will emerge; In this case, the delivery of the bill of lading representing the goods will result in the delivery of the goods, and the person who duly takes over the bill of lading will have acquired a right in rem, such as the right of ownership or pledge on the cargo.
(iii) Bill of Lading Holder's Right to Request Delivery of Cargo
Pursuant to the first paragraph of Article 1230 of the TCC, only the legitimate holder of the bill of lading has the right to demand the delivery of the goods represented by the bill of lading at the destination port. In order to be accepted as a legitimate bearer in this respect, it is necessary and sufficient to be the owner of the bill of lading and to formally understand the rightful owner of the bill of lading. The right to demand the delivery of the goods is a right that cannot be asserted separately from the bill of lading, and for the transfer of this right, the bill of lading must be duly transferred. This strict adherence between the right to demand delivery of the goods and the bill of lading reveals the value of the bill of lading.
On the other hand, the right to demand delivery of the goods is an independent right that is not dependent on the freight contract between the shipper and the carrier; therefore, the invalidity or termination of the freight contract does not have any effect on the delivery debt arising from the bill of lading. In any case, if the carrier issues a bill of lading for the goods, he has received in order to avoid this delivery debt, he is only obliged to deliver the goods to the legitimate pregnant in return for the presentation of the bill of lading.
The Bill of lading, which is issued unilaterally by the carrier or its representative after a contract of carriage is established, indicates that the goods have been loaded or received on the ship, includes the undertaking to transport the goods and deliver them to the consignee, represent the goods and prove that a contract of carriage has been made; Two types under the Turkish Commercial Code as delivery bill of lading and loading bill of lading; It can be issued in three different ways as order, registered and bearer. Undoubtedly, the most important function of this transport document is that it is a valuable document representing the goods. In this respect, international trade finds a very common practice in the trade of goods and services between international borders and regions, by giving the legitimate holder the authority to dispose of the goods.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.