Explanatory notes

GENWAYBILL Non-Negotiable General Sea Waybill (Revised 1995)

At its meeting in November 1995 the Documentary Committee adopted a proposed revision of the GENWAYBILL General Sea Waybill.

The GENWAYBILL was originally adopted by BIMCO’s Documentary Committee in 1987 to assist the commercial parties engaged in the short-sea trade when vessels often get to the port of discharge in advance of the bill of lading, resulting in the Master’s refusal to deliver the cargo because the consignee is unable to present to the Master the original bill of lading as evidence of his title to the goods, subsequently causing delays.

Over the years it has become apparent that this problem has also been known to occur in the deep-sea trade and to facilitate matters the Documentary Committee entrusted the BIMCO Secretariat with the task of revising the GENWAYBILL to extend its use to the deep sea trade.

In the meantime, some important issues were raised, arising out of the fact that under a waybill there are no binding contractual terms and conditions between the carrier and the consignee and it was considered imperative to address these issues in connection with a proposed revision of the GENWAYBILL.

The first issue relates to the fact that since the consignee is not an original party to the waybill he cannot sue or be sued under the contract of carriage.  A shipowner, therefore, who has a claim against the consignee may have to sue the consignee under the more uncertain area of tort rather than under the contract of carriage. In the United Kingdom, however, this problem has been solved by the incorporation of provisions transferring the right of suit to a person, without that person being an original party to the contract, to whom delivery is made under a sea waybill.

The second issue relates to the question of right of control of the cargo, i.e. the shipper’s right to change the name of the consignee at any time up to the consignee claiming delivery of the cargo and the shipper’s right to transfer such right of control to the consignee.

Both these issues have now been addressed by making the GENWAYBILL subject to the CMI Uniform Rules for Sea Waybills which were adopted by the Comité Maritime International (CMI) at their Paris meeting in 1990 in order to remedy the lack of international governing rules for sea waybills.

In the CMI Rules the problem of the consignee not being able to sue or be sued under the contract of carriage has been solved by means of an “Agency” type provision in Article 3 which for easy reference reads as follows:

“(i) The shipper on entering into the contract of carriage does so not only on his own behalf but also as agent for an on behalf of the consignee, and warrants to the carrier that he has authority so to do.

(ii) This rule shall apply if, and only if, it be necessary by the law applicable to the contract of carriage so as to enable the consignee to sue and be sued thereon.  The consignee shall be under no greater liability than he would have been had the contract of carriage been covered by a bill of lading or similar document of title”

As mentioned above, in the United Kingdom this problem has now been dealt with as a matter of law rendering the “Agency” provision in the CMI Rules superfluous but in a number of other jurisdictions the fact that the consignee is not a party to the contract of carriage when a waybill has been issued may still be a problem.

As regards the question of right of control this is provided for in Article 6 of the CMI Rules in the following manner:

“(i) Unless the shipper has exercised his option under sub-rule (ii) below, he shall be the only party entitled to give the carrier instructions in relation to the contract of carriage.  Unless prohibited by the applicable law, he shall be entitled to change the name of the consignee at any time up to the consignee claiming delivery of the goods after arrival at destination, provided he gives the carrier reasonable notice in writing, or by some other means acceptable to the carrier, thereby undertaking to indemnify the carrier against any additional expense caused thereby.

(ii) The shipper shall have the option, to be exercised not later than the receipt of the goods by the carrier, to transfer the right of control to the consignee.  The exercise of this option must be noted on the sea waybill or similar document, if any.  Where the option has been exercised the consignee shall have such rights as are referred to in subrule (i) above and the shipper shall cease to have such rights.”

As will be seen, it is suggested that the shipper’s option to transfer the right of control to the consignee be noted specifically on the sea waybill or similar document, if any.  Accordingly, on the face of the GENWAYBILL it has now been specifically provided that the shipper shall be entitled to transfer right of control to the consignee, the exercise of such option to be noted on the waybill and to be made no later than the receipt of the cargo by the carrier.  Such notation could, for instance, be made in the following way; “I, the Shipper (named in the Shipper Box on the face of this Waybill) hereby transfer the right of control to the cargo carried under this Waybill to the consignee (named in the Consignee Box on the face of the Waybill)”.

It has not been considered necessary to state specifically on the face of the GENWAYBILL that, where the shipper has exercised the option to transfer right of control to the consignee, then the consignee shall be the only party to give the carrier instructions in relation to the contract of carriage.  This clearly follows from the underlying CMI Uniform Rules for Sea Waybills.

Apart from the amendments resulting from the incorporation of the CMI Rules relatively few changes have been made to the GENWAYBILL.

It will be seen that the Signature Box on the face of the document has been amended in order to meet the requirements of Article 24 of the Uniform Customs and Practice for Documentary Credits (UCP 500) according to which the transport document must, on its face, appear to indicate the name of the carrier and to have been signed or otherwise authenticated by:-

- the carrier or a named agent for and on behalf of the carrier, or
- the master or a named agent for and on behalf of the master.

Accordingly, the name of the carrier should be stated on the dotted line appearing immediately after the words “Signed for”.

As regards the standard terms and conditions on the reverse side of the GENWAYBILL it will be seen that a specific reference has been made in the incorporation clause (Clause 1) to the applicable law and arbitration clause in the governing charter party.  Courts in England have held that unless there is a clear reference in a bill of lading to the law and arbitration clause in the governing charter party it may not necessarily be deemed part of the terms and conditions of the bill of lading, even though the law and arbitration clause itself stipulates that it shall apply in any bill of lading issued under the charter party.  There is no reason to assume that a court in England would reach a different result when the contract of carriage is a waybill and not a bill of lading.  Accordingly, it has been decided to make a clear reference to the applicable law and arbitration clause in the charter party thus ensuring that it will also apply for the purpose of the waybill.

Like other recent BIMCO standard documents the GENWAYBILL makes reference to the York-Antwerp Rules 1994 which are recommended for use by the CMI.  In addition, it will be seen that the GENWAYBILL no longer makes reference to the Netherlands Commercial Code, which has been withdrawn, and also the Belgium Commercial Code which is no longer considered relevant for the purpose of general average.
 

Copyright
Copyright in the GENWAYBILL is held by BIMCO

(Published in Special Circular No. 2, 6 March 1996)