국제무역운송에 있어서 선하증권효력상의 문제에 따른 대표운송증권의 활용에 관한 연구

Abstract

Bills of Lading, with their long history and legal position in the world shipping industry are still internationally acknowledged as the dinglische Wirkung or title to the goods. Furthermore, under the law forcing exchangeability for goods, even a contractual buyer is unable to claim delivery of goods from a carrier without presenting or exchanging an original bill of lading(B/L), Likewise the carrier is also unable to release the goods carried without original B/L. Given such legal limitations, however, the recent appearance of high speed ships in ocean shipping has shortened the transit time resulting late release of goods due to the later arrival of documents than goods. Regarding this, usage of B/L could become rather an obstacle in delivering goods in time, causing waste time and unnecessary expenses to the consignee. There has been some discussions of how to eliminate such inconvenience and problems but most of them do not conform to reality. Recently, among alternatives to traditional B/L, the most plausible methods are the SWB and electronic B/L. However due to their short history, they are not yet legally recognized under Korean law nor international conventions or rules use of nonnegotiable Sea Waybill(SWB) and discussions on how to fulfil the functions of B/L electronically come about, however, due to their short history, they alternatives are not yet legally specified neither by the Korean laws nor international conventions or rules.

The object of this thesis is to present not only SWB and electronic B/L as tools of solving above mentioned problems, but also to provide direction for what legislation will be necessary to support them. The research findings are summarized as follows :

1. To Enhance the Usage of SWB

Although SWB are occasionally used in Korea because of foreign customers request, there is still lack of recognition and are not being researched in actual business setting. Moreover, there hasn't been any discussion on how to establish or revise of laws relating to SWB. Therefore, to promote the use of SWB on a stable basis, business procedures will need to be established and supporting legal systems will have to be prepared as follows :

(1) The current commercial code should include, a definition of SWB containing its legal character, provision of cargo delivery, provision of shipper's right to control of goods shipped, effect of SWB and provision of mutatis mutandis application of relative provisions for B/L.

(2) Standard forms including it's clauses(terms and conditions) that can be applied to practical business of using SWB need to be prepared. As SWB functions as the evidence of contract of liner sea transport, using long form would be recommendable.

(3) Transactions without resale during the transportation can be carried on SWB. As for those on cash base or open account base, and D/A term among Collection base etc. where there is no problem settling payment for goods between reliable parties, and shipping document automatically released to the buyer regardless his concurrent payment and therefore in such transaction, SWB can be used instead of B/L. Thus, in short, SWB shall be used except for when B/L should be used due to unconditional requirements of the B/L as a functioning of title to the goods. SWB can be used as an alternative to B/L to overcome delays caused by faster transit time and B/L arriving later than goods. However, SWB has not been used widely because its actual application and legal position has yet been established in Korea. Also, even those concerned parties still do not clearly recognize the effect of using SWB and replacing current B/L with SWB is not common yet. Therefore, in order to improve the use of SWB, international transportation or trade authorities (i.e., the Shipowners Association, the International Freight Forwarders Association, Trade Association etc.), government agencies and research institutions or academic circles, need to encourage concerned parties to use SWB by conducting active studies and promotions.

(4) When SWB are used, the person who requests delivery of goods should prove that he is the named consignee and the carrier may deliver the goods to him without exchanging the SWB.

(5) Since SWB is not negotiable by endorsement and the parties concerned are limited to carrier, shipper and consignee, computerization is not so complicated. The purpose of using SWB is to eliminate B/L required in every stage and let the cargo information be given to those between shipper and carrier, among carriers at port of departure and destination or customs offices etc. which would eventually enable the consignee to receive cargo without presentation of document. Thus, replacing papers (e.g., Booking Request, Shipping Instructions, Carriers' confirmation for receipt of booking, preparation of SWB, Arrival Notice etc.) with EDI when using SWB would enhance convenience in exchanging information and promptness in cargo flow.

2. To Activate the Electronic Bills of Lading

On the other hand, I would also suggest employment and activation of electronic negotiable bills of lading(e-B/L), performing the functions of document of title to the good.

(1) This would require setting up legal backing for studies. Some attempts have been made to overcome the functional limits of negotiable B/L but practical application have yet to found. The reason is not because of computer technical problem but of legal problem. Korean laws such as the Commercial Code, Act on the Promotion of office Automation for Trade, Digital Signature Act are not directly applicable to e-B/L. Hence, for smooth electronic operation of B/L, provisions must be made that allow e-B/L to be regarded as a document of contract of carriage of goods by sea is necessary, like that of current B/L. To do this, provisions of the Exemption of Carrier's Liabilities(Korea Commercial Code, Article 789bis) and the Exemption of Prohibition of Lightening Liability (Art. 790) can be applicable. And the provisions such as the Issuance of B/L(Art. 813), Particulars to be stated in the B/L(Art. 814), Effects of B/L Description (Art. 814bis) can be applied or correspondingly applied to some limits. Moreover, provisions about the Exchangeability of B/L(Art.820 & 129), Sign and Deliver of B/L copy(Art. 815), Numerous original of B/L and Delivery of Goods at Port of Discharge(Art. 816), Numerous original of B/L and Delivery of Goods at Place other than the Port of Discharge(Art. 817) are undoubtedly inapplicable to e-B/L. In addition, a revision of the Promotion Act for Promotion of Trade Automation is also required for wider application limits of e-B/L. Furthermore, for international usage of e-B/L, establishment of a unified international laws, such as international convention or rules, is highly demanded. Untill these points are recognized legally, it can be operated under separate contracts among the concerned parties .

(2) According to CMI Rules for Electronic Bills of Lading, the carrier is stipulated as the managing or controling body of e-B/L, but due to immanent problems of additional responsibility, cost, specialized human resource, technical installation and system know-how, the efficient managing body should be a neutral 3rd party administration.

(3) As for e-B/L, besides amendment of consignee by changing the title of ownership, other corrections are unavoidable. There would be many different types of alteration including changing the terms and condition of contact of carriage(e.g., change of consignee and destination etc.), as well as minor spelling correction. Since the electronic transfer of title by Private Key Holder to others is the ultimate purpose of e-B/L, this is not a matter carrier shall interfere with. However, as the alteration of such content is related to B/L forgery and amending major contents of carriage of goods leads to change of rights and obligations of carriers, these changes must be done with the carriers' acceptance. What is more, the authority to amend e-B /L data should also be given to the carrier.

3. To Utilize Substitutions as Shipping Document for Traditional Bills of Lading

SWB and e-B/L are possible alternatives to current paper B/L. However, under the present conditions and circumstances, neither one is suitable enough to entirely replace whole paper B/L because paper B/L are still compulsory in some countries, not all trade parties have computer capacity, and transit times are often long enough to allow timely paper B/L arrival. So, even if e-B/L comes to wide usage, current paper B/L shall co-exist for long time. However, in order to lessen problems arising from paper B/L, I would strongly suggest the transactions without resale during the voyage be carried on non-negotiable SWB and those with expected resale and on a L/C base requiring security, be carried out under negotiable B/L. Currently limited usage of e-B/L is considered between parties with established relationships, for example, between specific neighboring countries and/or between companies in good standing. In case when documents are certain to arrive sooner than cargo, current paper B/L is just as good. However, all shipping documents should turnover to paperless electronic documentation which would eventually bring more efficiency and productivity.