Sammendrag
The concept “right of control” virtually has been widely used in other transport modes than carriage of goods by sea. It has been regulated, for example, in Warsaw and Montreal convention on air transportation, COTIF-CIM convention on rail transportation and CMR convention on road transportation, whereas this subject has never been dealt with in maritime conventions. Features of the modes results in the development of the documentary rules applicable for the transport documents towards various directions.
Compared with other transport practice, goods carried by sea are often resold many times before its arrival at the destination. In order to carter for this characteristic of maritime transport, a bill of lading system has been developed which helps the traders to transfer the property rights in goods. A traditional bill of lading representing the goods then gives a constructive possession of the goods to its holder. By presenting the bill to the carrier, the holder can demand delivery of goods from the latter. The transfer of the bill means the transfer of the constructive possession of goods. Thus who has the possession of the bill actually has the control of the goods.
With the overwhelming improvement of the shipping industry and consequent shortening of the time used for each voyage, the use of bills of lading in many trades is rapidly decreasing or has entirely disappeared. Instead sea waybills or other non-negotiable transport documents are more and more appreciate especially where there is no requirement for financing security. Besides, the multimodal transport documents used in the container logistic and multimodal transport can hardly fit in with the concept of traditional bill of lading so as to provide a document of title function , which means a document relating to goods the transfer of which operate as a transfer of the constructive possession of the goods, and may operate as a transfer of the property in them. Furthermore, e-commerce systems have also a swift tendency with utilization in the maritime transport. The characteristics of these transport documents distinguish from each other (e.g. negotiable or non-negotiable, documentary or electronic), yet they are endowed with (or at least related with), by agreement or by statute, one common and significant feature—the control of goods . Normally the control of goods in transit includes:
(a) The right to give or modify instructions in respect of the goods that do not constitute a variation of the contract of carriage;
(b) The right to demand delivery of the goods before their arrival at the place of destination; and
(c) The right to replace the consignee by any other person.
Although there are rules peculiar to the use of certain transport document, the aspect of right of control, which is given by the document to the parties interested in the contract of carriage, has not been paid much attention on in the maritime law context. There are no uniform rules on this subject on an international scale. Consequently, practices on this point diverge very much in different jurisdictions. Furthermore, the existent rules on right of control for certain documents often cannot provide clear guidance on problems associated with the distribution of right of control and the liability of the carrier in relation to the execution of instruction of the party who has the right of control. Cases in this respect can be found in both England and China. Take the sea waybill for instance, one of the merit of sea waybill that the shipper can, at any time before delivery, direct the carrier to deliver the goods to a person other than the named consignee. The carrier would, prima facie, be obliged to comply with this order since normally the contract would be construed as one to deliver to the named consignee or to such other person as the shipper might direct. There is then a conflict which needs to be resolved. On the one hand, the shipper wishes to retain his rights of disposal at any time before delivery. On the other hand, the named consignee wants delivery made to him in accordance with the carrier’s undertaking. The carrier will not wish to resolve the conflict in favor of either in case he is liable to the other. Neither the existing conventions on carriage by air, road and rail provide clear guidance on this problem , nor do the CMI rules . The above reasons constitute the primary rationale for the thesis, ‘‘Right of Control’’.
Upon the call for a comprehensive solution on the subject ‘‘right of control’’, the recent UNCITRAL draft convention on transport law has provided a set of brand new rules for this subject. Chapter 11 concerns the concept of right of control and the transfer of the rights. Can it provide a proper normative predictability for all the traders interested in a contract of carriage? Can it provide sufficient guidance for the problems which already exist? Does it facilitate a fair weighting of the diverse interests involved? Is it sufficiently clear? Is it applied consistently? Are there significant gaps? Can it fit in with the future documentary development? All these factors underline the need for this thesis.