جستجوی مقالات مرتبط با کلیدواژه « bill of lading » در نشریات گروه « فقه و حقوق »

The bill of lading is a document that is the reason for the existence of a transport contract and is issued by the operator or his agent at the request of the sender and the ownership of the goods for its owner, the receipt of the goods by the operator and his obligation to surrender the goods. There is no record of the bill of lading in our jurisprudence and Civil Code and the word bill of lading only in Article 383 of the Commercial Law has been used, but has entered into our domestic laws for the reason of practical necessity in trade and consequently in the transportation of this document with a look at international trade law. In the 2019 Trade Bill which has not yet received the approval of the Council of Guardians, contrary to the Commercial Law of 1932 that the bill of lading is defined and the characteristics and information contained in it are stated. Our legislator in expressing the necessary information contained in the bill of lading to the conventions of Convention on the “Contract for the International Carriage of Goods by Road” (CMR) and Convention concerning International Carriage by Rail (COTIF) noted but in expressing the characteristics of the bill of lading, pointed to cases that are not in line with the above conventions. Contrary to the viewpoint that in land transportation only a roadmap that is a non-transferable document can be issued has accepted the issuance of bill of lading in this type of transportation and ended the disputes in this regard.

The transportation of goods by sea plays a crucial role in global commerce, accounting for over ninety-three percent of goods transported worldwide. This preference for sea transport is primarily due to its ability to move large volumes of goods at lower costs compared to other transportation methods.Safety is paramount in ensuring the successful operation of maritime carriage. Ships must be equipped with the necessary technical instruments to guarantee safety. Maritime law establishes regulations for this purpose, commonly referred to as "seaworthiness." In essence, a ship must possess the required capabilities in all aspects to fulfill its designated mission, transport goods within the agreed timeframe, and deliver them safely to their final destination. The absence of seaworthiness poses risks to the ship itself, its cargo, its crew, and other individuals on board. Such events can have varying consequences, ranging from the most severe, such as ship sinking and total destruction of cargo, to the mildest, such as delivery delays resulting in economic losses due to market conditions. The comprehensive characteristics and essential conditions of a ship for the proper execution of a carriage contract are encompassed by the term "seaworthiness."The carriage of goods by sea and the operation of commercial ships are governed by two types of contracts: contracts of carriage and charterparties. International conventions, contractual agreements, and established customs in the field of carriage impose an obligation on ship owners and carriers to ensure the seaworthiness of their vessels. This research aims to address fundamental questions related to seaworthiness, including the criteria for evaluating it and how to determine if a ship owner or carrier has fulfilled their seaworthiness obligation. It also explores the legal nature of the seaworthiness commitment and the similarities and differences between this commitment in contracts of carriage and charterparties. Additionally, the study examines the proof of breach of this obligation and the resulting effects on the rights and obligations of the parties involved.This research adopts a library-based methodology, drawing insights from legal literature. The authors conclude that seaworthiness is a multidimensional and relative concept. It encompasses not only the ship's engines, hull, and technical aspects but also the competence and skills of the ship's personnel (captain, engineer, and crew) and the necessary certifications. The type of cargo and its stowage on board the ship can also impact the seaworthiness of the vessel. Seaworthiness can only be determined through a case-by-case assessment, considering various factors such as the type of contract, vessel, cargo, timing (season), and the location of contract execution (sea, ocean, lake, etc.).This article examines the legal nature and basis of the seaworthiness commitment in international conventions and different legal systems. It establishes that the commitment to seaworthiness is an implied and legal obligation imposed on carriers and ship owners, even in cases where the contract remains silent on the matter. Moreover, the carrier's responsibility for ensuring seaworthiness does not adhere to the general principles of liability. Under Article 386 of the Iranian Trade Law, the carrier's liability is based on the "assumption of responsibility." In other words, the carrier can only be exempted from liability if they can demonstrate that external factors caused the damage. However, this general principle is modified when it comes to the lack of seaworthiness. According to paragraph 1 of Article 55 of the Iranian Maritime Law (adapted from paragraph 1 of Article 4 of the Hague Rules-1924), the carrier's liability resulting from a breach of the seaworthiness commitment is based on the "presumption of fault." In practical terms, the carrier can be relieved of liability by proving that they exercised due diligence in ensuring the ship's seaworthiness. This distinction has significant implications in legal disputes involving cargo owners and carriers, as well as ship owners and charterers

Letters of credit are one of the most successful solutions for large and international business players in the field of increasing security and reducing transaction risk, where the buyer opens a letter of credit with a reputable financial institution such as a bank, thus assuring the seller. That is the amount promised and delivered. This process, which was based on paper and involved a lot of risks, still requires a lot of time and money, despite the many advantages of electronic systems. Therefore, any attempt to reduce time or cost increases credential efficiency. The purpose of this article is to explain the possibility of transferring letters of credit procedures from previous methods to the blockchain platform and creating smart contracts as model proposals, using the descriptive analysis procedure to coordinate and evaluate the steps in both procedures. Deals in this area and its compatibility with block chain technology and smart contracts. The results of this study show that implementing a Letter of credit on the block chain platform as a system that is highly secure and uses smart contracts (self-execution) increases transaction security and the likelihood of retaining provided documents, resulting in human resources involvement and the process from beginning to end credit makes documents shorter, faster and low cost. Usance LC on the block chain platform is also based on smart assets, eliminating the need to comply with Swift and FATF rules, including issues such as the lack of direct lines between banks in different countries.

Nowadays, block chain technology can be used in all stages of international trade, from contracts to shipping and ownership documents. Considering the crucial role of bills of lading in transportation, the use of technology-based documents will create advantages, opportunities and even a new perspective for facilitating oil trade. However, it seems that oil trade on a global scale has not yet fully accepted the block chain technology, and so far, specific legal frameworks for issuing bills of lading based on technology have not been formed. In addition, technology use in the oil trade will be accompanied by problems and challenges. This issue will become more complicated due to Iran embargos in recent years, especially in the field of oil industry and trade. Therefore, in this research, while trying to identify the legality of block chain bills of lading based on existing domestic and international regulations, we will deal with the effects and challenges of its application in oil trade, including Iran's oil trade.

Charterparties are being used for years as a common practice worldwide to provide shipping services in various international routes. A bill of lading is known as one of the most important documents in maritime transportation all over the world. There might be some discrepancies between the written consent on a charterparty and the terms and conditions stipulated on a bill of lading. The shippers or consignees in the bill of lading, and also its forthcoming transferees may be totally unaware about exact content of the parties' agreements. To facilitate settlement of the disputes which may arise between the terms of conditions of these two documents, incorporation of an arbitration clause in the charterparty is one of the methods which may contribute to resolution of the arguments. Different countries have their own laws so each of them takes different approaches towards settlement of their disputes by either courts or arbitration. The Maritime Law of Iran ratified as early as 1964 was primarily inspired from Hague Rules 1924. It has differences as well as similarities with the laws of other countries. The current paper intends to address incorporation of the charterparty arbitration clause into bills of lading among the selective countrie including England, China, Germany and Iran. Establishment of technical maritime courts and professional arbitration committees in addition to updating the national maritime law in accordance with the latest national requirements and the most recent international conventions could be clues to improve the process of dispute settlement in this field.

The forum selection clause in international commercial contracts, which is also known as jurisdiction clause, is an agreement based on which the parties of maritime shipment of goods choose a forum the settle the disputes arising from the contract. The incorporation of such clauses in maritime bills of lading results in granting jurisdiction to a foreign court and deprivation of jurisdiction from an internal competent court. The proceedings in a foreign court, in many cases, lead to the application of governing law on the settlement of disputes and affect the carrier’s responsibilities. On the other hands, most of the international and national rules governing on the maritime shipments of goods are mandatory and the validity of foreign forum selection clause in maritime bills of lading has been doubted because of the inconsistency with public policy. Regardless of complying with the fundamental circumstances governing on the validity of contracts in the formation of jurisdiction agreements, the courts of different countries consider some criteria for the application of such clause based on their national legal system and they may also give no effect to the forum selection clause due to the forum non convenient or evasion of the law. However, the validity of forum selection clause is currently accepted in most international agreements and national legal systems and the courts of different countries are complying with. The main theme of the present study is to examine the validity of this clause.

During the 1960s, the shipping industry underwent a tremendous change, well known under the term “the container revolution”. Container brought about enhancement in speed, safety and security of transportation and led to the costs saving as well. The legal issues arising from this phenomenon have been subject to many controversies since the very beginning. The legal nature of container (whether it is deemed as a package or not), the various relationships arising from issuance of several bills of lading (groupage BL and house BLs) for one container, determining the liable person in the case of damages to the cargo (while existing in the sealed container), liability for incorrect stowage of cargo in the container or stowage of container on the deck are the main issues that are analyzed in this article.

Lawyers disagree about application of the Rome I to bill of lading .Under English Law, the law applicable is determined according to common law rules in case bills of lading are excluded from the Rome I.Both the Rome I and common law rules recognize the principle of freedom of parties.However, the principle of freedom of parties is restricted under the Hague-Visby Rules and the parties' choice of law could not lessen the liability of the carrier from what provided under the Hague-Visby.Under Iranian Law, the law of the place of conclusion of contract applies to the bills of lading unless the contracting parties are foreign nationals and have subjected their contract to another law.Nevertheless,, considering the restrictions upon the application of foreign law, in accordance with Hague rules to which Iran is a party, parties to a bill of lading issued in a contracting state cannot agree on application of law of other countries which would lessen the liability of carrier from what provided under the Hague Rules.
Bill of lading might contain an incorporation clause which incorporates charterparty clauses into bill of lading.Under English Law, the law applicable to the choice of law clause incorporated into bills of lading by reference is the law that is applicable in case of validity of incorporation clause.In Iranian legal system, there is no conflict of laws rule regarding the applicable law to the choice of law clause and courts in each case will seek to discover parties' true intentions.

Evidential value of bill of lading concerning the cargo specification is confirmed by all international conventions. This function works unless the carrier insert reservation in the bill of lading. The validity of reserve is an issue which is less addressed by Iranian doctrines, as one may infer from reservation non-liability clause which itself is declared to be null and void by the international conventions. So, does the validity of reserve depends on agreement by the consignor? Or shall it be reasoned in a way that the grounds for the reserve shall also be inserted in the bill of lading in order to be effective? On the other hand, the carrier might refuse to insert reserve in the bill of lading either personally or per request of the consignor and receiving a letter of indemnity from the latter. Is carrier liable vis-à-vis the consignee for ignoring the reserve and concealing the truth and shall the letter of indemnity be considered as valid and effective? The legitimacy and validity of conditions of reserve on one hand, and the effects of reservation on the other hand are among the issues which are analyzed in this article in view of comparative study of English and French legal systems and international transport conventions. It is concluded that the carrier’s reserve in the bill of lading is a unilateral act which does not require the consent of the consignor except under CMR Convention under which the effectiveness of reserve is dependent on the consignor only vis-à-vis the latter and not towards the third parties, i.e. the BL holders. However, the reserve shall be justified in order to be valid and the cause of reservation shall be specified together with the reserve as well, under the later international regulations (Hamburg Rules). In terms of consequences of reservation, it is worth noting that by reservation the burden of proof shall lie upon the BL holder while without it the carrier himself should have proved that the damage had been incurred before his taking delivery of the cargo. Also, the agreement not to insert reserve in the BL is effective between the carrier and the consignor unless they have an intent to defraud the third parties. However, the above agreement or the Letter of Indemnity in substitution of reservation could not be adduced by its parties against the third parties.

One of the new transformations in scope of maritime transportation in relation with shipping documents includes non-paper (electronic) shipping documents. Three main functions of bill of lading in maritime transportation comprise receipt of carriage of good, reason for carriage contract, and title document. The majority of researches are about to realize functions of carriage receipt and reason for carriage contract within substitution of electronic documents such as replacement of paper bill of lading with electronic bill of lading while there is not a same conclusion in relation with function of title document and this doubt in result is beyond the replacement of paper documents with electronic documents caused by ambiguities in considering bill of lading as title document of goods and function of bill of lading as a title document. In general, transfer of bill of lading does not mean transfer of ownership while ownership is transferred through contract of goods’ sale and bill of shading is considered as a document that indicates property of goods to facilitate transactions within commercial transactions

Presentation rule is one of the general rules governing claim and delivery of the goods carried by sea. It means that the carrier shall deliver the goods solely against presentation of a transport document by the cargo claimant. The basis of presentation rule is to prevent deprivation of actual cargo-owner’s rights and to ensure the performance of contract as well as carrier’s immunity from unpredicted liabilities. The central analytical idea of this study is to describe in detail the necessity or non-necessity of application of presentation rule and its exemptions to carriage of goods by sea. Due to their different approaches to the subject matter depending on the type of transport document in question, the rules of Common law as well as English statutory provisions on carriage of goods by sea are examined. Presentation rule is not explicitly mentioned in Iran Maritime Code which is limited in scope comparing to the two other body of rules. Also, contrary to Common law and English law, the Maritime Code of Iran is relatively ambiguous towards the right to claim delivery of goods.

The holder of a bill of lading hardly ever has the chance and right to see the referred charterparties' terms and conditions. On the one hand, binding the holder of the bill of lading to the terms and conditions which he is not aware of seems unjust and therefore the incorporated clauses might be deemed invalid. On the other hand, dependency of the validity of the contract to the parties' awareness of their rights and obligation endangers commercial certainty. While in some legal systems such as United States of America and France, a general reference is capable of incorporating all of the charterparties' terms and conditions into bill of lading, according to English law an specific reference is required to incorporate ancillary clauses such as jurisdiction clause. Studying sources of Iran's law it could be concluded that the Iranian courts' probable solution should be very similar to the English law's approach.

Bill of lading is one of the commercial documents that is used in marine transportation and has gained increasing importance and like other commercial documents such as check, bill of exchange, demand (promissory) note and warehouse receipt enjoys independent legal nature. Considering the importance of the marine bill of lading in international trade development, its setting, issuing and contents according to Iran Marine Law and different international conventions and its impact on the level of forthcoming commitments of the sides, is critical. We can point out that including the number of copies of bill of lading and its particular forms in any given person, to remit a certain person and the bearer that the transfer capability of each is different. Contents of bill of lading, terms and phrases, some explicit and some implicit form, also will be mentioned. Explicit and implicit terms of bill of lading are another topic to be discussed in this article.

CIF is unknown in Iranian law, although it is widely used in international trade of this country, which has made studying it inevitable. Knowing rights and obligations of parties, transfer of risk and titleand compensating damages in conclusion of contracts will help traders. Using contractual freedom, sometimesparties try to deviate from standard terms to gain more benefit or avoid more loss. This may result in including term contrary to CIF standards and unknowingly create difficulties in rights and obligations of parties and how to compensate it.This article studies CIF in British law and 2010 incoterms with a short review of Iranian law to: 1) clarify nature of CIF 2) clarifying rights and obligations of parties 3) indicate effect of terms contrary to CIF.