Thesis 10

Effects of the Transfer of Bill of Lading in Thai Legal System

by Miss Panida Wattanavekin (1986) ;Master degree thesis. *(The Full Text view in Thai Language only)*

ABSTRACT

             Carriage of goods by sea takes important roles in international trade because goods are to be transported from a seller in one place to a buyer in another place. In this mode of transportation the carrier will usually issue to the shipper a bill or bills of lading evidencing the receipt of goods into the carrier's custody. Bills of lading so issued can be grouped into many categories. Each category represents different relationship between the carrier and the shipper for example, a shipped bill of lading indicates that the carrier has loaded goods on board a particular vessel, on the other hand, received for shipment bill denotes that at the time of issuance the carrier has not loaded goods on board yet. In addition to being the receipt of goods, bills of lading are also evidence of the contracts of sea carriage and documents of title or symbols of goods designated therein. That bills of lading are documents of title or symbols of goods results in their nature of negotiability. Instead of actual delivery of goods which are still in transit, the holder may endorse the bill of lading to the transferee or consignee. The consignee may thereafter surrender the bill of lading to the carrier in exchange for the goods. Nevertheless, generally the endorsee gains no better title over the goods than the endorser unless the law otherwise stipulates. Therefore, bills of lading do not have full qualifications of negotiable instruments as bills of exchange. They only qualify as quasi-negotiable instruments which can be transferred in the same manner as warehouse receipts or warrants. The endorsement affects three important issues viz., the rights over goods, contractual rights and liabilities and the protection of bona fide endorsee. In respect of the rights over goods, the endorsement results in the transfer of possession of goods described in the bill of lading. However, the question on the transfer of ownership in the goods to the endorsee is to be considered according to the parties' intention and related legal rules. Regarding contractual rights and liabilities between the shipper and the carrier, the endorsee shall have rights and be subject to the same liabilities as the endorser if the goods ownership passes upon the endorsee by reason of the bill transfer. The endorsee may exercise the transferred contractual rights against the carrier in his own name. With respect to the protection of the endorsee, the bona fide endorsee will not have better rights than his endorser unless the law specifically so provided.

             International Conventions were mainly intended to unify laws of various states on rights and liabilities of the carrier to be contained in the bills of lading.

             As for Thailand, at present there is no specific law on this matter. The Civil and Commercial Code section 609 paragraph 2 stipulates "the carriage of goods by sea is governed by the laws and regulations relating thereto." In practice, the Thai court has applied general provisions of the Code especially section 4 and book III title VIII, chapter I on carriage to the disputes. This practice creates uncertainties and confusion. This application is not only unsui-table to the nature of contract but also contrary to the idea behind section 609 paragraph 2. On some occasions the result is against the parties' will. The applied law does not cover all aspects of carriage of goods by sea and in some cases differs from international accepted rules or customs. Because of this application, the parties cannot ascertain their rights and liabilities especially on the effects of the bill transfer in regard to the transfer of ownership or contractual rights and liabilities and the protection of bona fide transferee. This uncertainty adversely affects the national economy. The Draft Carriage of Goods by Sea Act which is now under legislative process can clarify the law on part of the carriers' rights and liabilities. However this draft does not cover all aspects of the effects of the transfer of bills of lading. There is still need for future interpretation. Nonetheless, this draft will provide a firm basis for the Thai legal system on sea carriage and will be one big step in the process of legal evolution.

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