Bills of Lading, 2nd edition
The origins of the bill of lading
1.1 For the purpose of our consideration, it is safe to say that in the eleventh century the bill of lading was unknown.1 It was at this time that trade between the ports of the Mediterranean began to grow significantly. Some record of the goods shipped was required, and the most natural way of meeting this need was by means of a shipâ€™s register, compiled by the shipâ€™s mate. Although use of such a register probably began informally, it was soon, in some ports at least, placed upon a statutory footing.2 Its accuracy was paramount and, around 1350, a â€œstatute was enacted, which provided that if the register had been in the possession of anyone but the clerk, nothing that it contained should be believed, and that if the clerk stated false matters therein he should lose his right hand, be marked on the forehead with a branding iron, and all his goods be confiscated, whether the entry was made by him or by anotherâ€.3 By the fourteenth century, what was later to be accomplished by the receipt function of the bill of lading was being accomplished by an on-board record.4 As yet there was no separate record of the goods loaded as it seems that shippers still travelled with their goods and there was accordingly no need for one.5 This only changed when trading practices altered and merchants sent goods to their correspondents at the port of destination, informing them by letters of advice of the cargo shipped and how to deal with it. Merchants also began to require from the carrier, and to send to their correspondents, copies of the shipâ€™s register.6
1.2 Bensa located two bills of lading from this period, the earliest of which is by far the more important. It reads, in translation:
1390, the 25th day of June. Know all men that Anthony Ghileta shipped certain wax and certain hides in the name and on behalf of Symon Marabottus which things must be delivered at Pisa to Mr Percival de Guisulfis, and by order of the said Mr Percival who shall deliver all his things to Marcellino de Nigro his agent, and I Bartholomeus de Octono shall deliver all his goods at Portovenere and for the better caution I affix my mark so.
Bartholomeus de Octono mate of the ship of Anrea Garoll.7
1.3 In this and the second bill, there is nothing to suggest that it was ever envisaged or intended that these documents would at any point be transferred. They provide that delivery is to be made to a particular person, the correspondent of the shipper, and, in the case of the document quoted above where there was a change in the consignee, it is clear from the facsimile that the final consignee was provided for before the bill was issued and was not a later indorsement thereon.8
1.4 It is impossible now to say when exactly the practice of registering the cargo in the shipâ€™s book was superseded by the issuing of bills of lading,9 but it is likely that practice differed between ports. All that can safely be said is that rudimentary bills of lading were in existence in the late fourteenth century and that it was not contemplated that they would be transferred. They clearly served some sort of receipt function,10 but it does not, therefore, follow that possession of document entitled the possessor to the delivery of the cargo.
1.5 Further assertions have been made as to the nature of bills of lading at this time, but they are not supported by the available evidence. Bennett concluded that:
Some proof would be required that the person demanding delivery of the goods at the port of destination was the person entitled to do so, and a copy of the register signed by the captain would be the most natural indicium of title,11 and would clearly bind the shipowner and the consignee to the conditions of shipment.12
1.6 This goes too far in several ways. First, where the goods were consigned to a correspondent it would be necessary merely that he produce evidence of his identity. As has been mentioned, a letter of advice was sometimes sent without a bill of lading. Secondly, even if the bill were considered as essential to delivery, it need not be an indicium of title, in the sense of ownership. Finally, and most importantly, the last point made by the quotation is wholly without support. There is no evidence that the bill was regarded as in anyway binding the carrier to the terms of shipment. In fact, all the evidence points to the contrary conclusion that it had no contractual effect at all.13
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|Epub||May 30, 2020|