Sea waybill vs bill of lading

The difference in one paragraph

Under the UK Carriage of Goods by Sea Act 1992, a bill of lading is transferable by indorsement or, as a bearer bill, by delivery; a document incapable of such transfer is not a bill of lading under that Act.^[1] A sea waybill is a document that is not a bill of lading but is a receipt evidencing a contract of carriage by sea and identifies the person to whom the carrier is to deliver.^[1] The Rotterdam Rules draw a similar line: a negotiable transport document is consigned to order or to bearer and not marked non-negotiable; any other is non-negotiable.^[2]

Comparison

Transferability. A bill of lading passes by indorsement or, if made out to bearer, by delivery, and its lawful holder acquires the rights of suit under the contract of carriage.^[1] A sea waybill does not pass in this way; the named consignee acquires rights of suit as the person to whom delivery is to be made.^[1] Hapag-Lloyd's waybill terms are headed "Not Negotiable"; BIMCO's LINEWAYBILL form is titled "Non-Negotiable Liner Sea Waybill".^[5][4]

Document of title. The Hague-Visby Rules, scheduled to the UK Carriage of Goods by Sea Act 1971, apply to contracts covered by "a bill of lading or any similar document of title".^[6] Maersk describes its Seaway Bill as identical to a negotiable bill of lading except that it is not a document of title; MSC's sea waybill states on its face that it is not a document of title.^[7][8]

Originals. Where more than one original bill of lading is issued, the Rotterdam Rules provide that surrender of one suffices and the others cease to have effect.^[2] Maersk states that no originals are issued for its Seaway Bill.^[7]

Delivery. Under the Rotterdam Rules the carrier delivers against surrender of a negotiable transport document and must refuse delivery without it; where no negotiable document has been issued, the carrier delivers to the consignee and may refuse delivery if the claimant does not properly identify itself.^[2] The CMI Uniform Rules for Sea Waybills, Hapag-Lloyd's waybill terms and BIMCO's form all provide for delivery to the consignee on proof of identity.^[3][5][4]

Right of control. Under the CMI Uniform Rules the shipper may change the consignee until the consignee claims delivery, or may transfer the right of control to the consignee no later than the carrier's receipt of the goods, noting this on the waybill.^[3] Hapag-Lloyd's terms allow the shipper to change the consignee up to arrival on written notice; ZIM's and MSC's terms make a change of the delivery party subject to the carrier's discretion and a written request.^[5][9][8]

Liability regime. UK COGSA 1971 gives the Hague-Visby Rules the force of law for a non-negotiable receipt marked as such only where the contract expressly provides that the Rules govern it as if it were a bill of lading.^[10] The CMI Uniform Rules apply to the waybill any convention or national law that would have applied compulsorily to a bill of lading.^[3] Hapag-Lloyd's and ZIM's terms, and BIMCO's form, each name the regime that applies.^[5][4][9]

Evidence of receipt. Under the Hague-Visby Rules a bill of lading is prima facie evidence of receipt of the goods as described, and proof to the contrary is inadmissible once it has been transferred to a third party in good faith.^[6] The CMI Uniform Rules give a waybill statement a parallel effect: prima facie between carrier and shipper, conclusive for a consignee acting in good faith.^[3]

When each document is used

A bill of lading is used where the goods may change hands in transit or where a party needs a document that controls delivery.^[1][2] A sea waybill is used where no such transfer is needed and the consignee is known at shipment; the shipper keeps the right of control unless it transfers it.^[3][4]

During the COVID-19 lockdowns ONE urged customers to consider sea waybills or straight bills of lading, because delivery under a sea waybill does not require production of the document, and warned that it could not release cargo under an original bill of lading unless the originals were surrendered to its office.^[11] ZIM's waybill terms apply US COGSA to shipments to or from the United States and treat the waybill for that purpose as a non-negotiable straight bill of lading.^[9]

Worked example. A seller in Valencia ships furniture to a buyer in Rotterdam who has paid in advance. No bank or intermediate buyer needs to hold title, so the seller asks the carrier for a sea waybill naming the buyer as consignee; on arrival the buyer identifies itself and collects the containers without presenting any document.^[3][4] Had the sale required payment against documents, the seller would have asked for a to-order bill of lading and indorsed it to the buyer's bank, and the buyer would have obtained the goods by surrendering the indorsed bill to the carrier.^[1][2] This describes practice; it is not legal advice.

Electronic forms of both documents

Both documents have electronic equivalents, but the legal problem differs. The Rotterdam Rules define a negotiable electronic transport record as one consigned to order whose use meets the procedures of article 9; any other electronic transport record is non-negotiable.^[2] Only the negotiable record needs procedures for issuance, integrity, demonstration of holdership and confirmation of delivery, because only it replaces possession of a paper original with exclusive control.^[2] The Rules have not entered into force: UNCITRAL lists five parties against the twenty required.^[12] See the legal tracker.

In the United Kingdom, the Electronic Trade Documents Act 2023, in force since 20 September 2023, applies to documents whose possession is required by law or commercial practice to claim performance of an obligation; its list of examples names the bill of lading but not the sea waybill.^[13] An electronic bill of lading under the Act depends on a reliable system that allows only one person to control the document at a time.^[13] See the UK ETDA explained.

Industry standards cover both. DCSA states that its Bill of Lading standard applies to both original bills of lading and seaway bills.^[14] Hapag-Lloyd states that its eBLs are still original bills of lading with document type MBL/OBL, while its separate sea waybill terms govern a download contract for electronic consignments.^[15][16] The carrier tracker lists each carrier's electronic bill of lading service.

Points that differ by contract and jurisdiction

The UK Carriage of Goods by Sea Act 1992 governs rights of suit under English law; UK COGSA 1971 extends the Hague-Visby Rules to a non-negotiable receipt only where the contract so provides; the CMI Uniform Rules apply only when a contract adopts them.^[1][10][3] Each carrier's waybill terms set their own rules on changing the consignee and on liability.^[5][9][8] ebl.com describes the law and carriers' published terms; it does not advise on a particular shipment.

Frequently asked questions