Old habits, they say, die hard. If you look through the contents of almost any university course on the transport of goods in international trade, its centrepiece is likely to be the traditional ocean bill of lading issued to a cargo owner wanting nothing more than port-to-port carriage by sea. Multimodal and other forms of transport are tacked on at the end as a kind of afterthought, a variant on this model. 1
This is not a little curious. As anyone in the business will tell you, for the overwhelming majority of international (and national) shippers these days, transport means getting stuff shifted from one inland terminal to another, very probably packed in a container provided either by the carrier himself or by a third party. And except in the case of simple trucking of goods from A to B, it equally follows that we are likely to be dealing with multimodal carriage of some kind, with the person dealing with a shipper (or with his forwarding agent) as likely as not an MTO 2 or NVOC, 3 rather than a carrier in the traditional sense. And the paper which moves across a busy transport lawyer’s desk will refl ect this. Unless his client is in the bulk commodity business, or dealing with countries with conservative bureaucracies that make a fetish of traditional shipping documents, it is highly likely that the old-fashioned, closely regulated marine bill of lading is something he has not seen in years. It will almost certainly have been supplanted by a different kind of privately drafted MMT 4 documentation: a waybill in the nature of BIMCO’s MULTIWAYBILL or COMBICONBILL perhaps, or some variant on the FIATA Multimodal Transport Bill of Lading incorporating the UNCTAD/ICC Rules, or for that matter an amphibious piece of paper produced by an individual carrier or NVOC which says that it might or might not be a marine bill of lading according to how it is actually employed. 5
Such documents are potentially problematical. They may be – indeed, often are – called bills of lading. 6 They frequently ape features of bills of lading, for instance
by stating that they are negotiable (or not, as the case may be), 7 or that they are presumptive evidence as regards the shipper, and conclusive evidence as against a buyer, of certain statements made about the goods when taken over. 8 Nevertheless, for all this there is no doubt that they are not the same thing as bills of lading traditionally understood. 9 And here arises the subject of this chapter. Unlike some other systems, which have specifi cally made provision for the status of multimodal transport documents, 10 England has left open the question how far documents which do not correspond to the model of the traditional unimodal bill of lading can actually share the latter’s characteristics. At the risk of anticipation, the answer seems to be that they surprisingly often can, and therefore that while classic bills of lading do remain unique in a number of respects, the signifi cance of the difference between them and multimodal documents is less than one might think.