The evidentiary effect of ocean bills of lading in the logistics industry

Bill of lading is a common transportation document in the logistics industry, and almost all logistics companies inevitably come into contact with bills of lading. Understanding the legal effect of bills of lading can help logistics companies avoid potential legal risks in their business operations. 

The Maritime Law of China provides a clear definition of the bill of lading. Article 71 states: "A bill of lading refers to the document used to prove the contract of carriage of goods by sea, the receipt or shipment of goods by the carrier, and the carrier's undertaking to deliver the goods."

According to this definition, the bill of lading has a crucial role: it serves as proof that the carrier has received the goods or loaded them onto the ship. The specific situation depends on the type of bill of lading issued. For example, if the carrier issues a received-for-shipment bill of lading, it indicates that the carrier has indeed received the goods but has not yet loaded them onto the ship. As proof that the carrier has received the goods or loaded them onto the ship, the bill of lading may have certain differences depending on the time period and the carrier's actions. Let's take "shipped bill of lading" as an example to explain two different scenarios.

1. Preliminary evidence

Article 77 of the Maritime Law of China states: "Unless a reservation is made in accordance with the provisions of Article 75 of this Law, a bill of lading issued by the carrier or a person on behalf of the carrier is preliminary evidence that the carrier has received the goods or the goods have been shipped as stated in the bill of lading;..." In other words, the carrier can present completely contrary evidence to prove that the actual goods received do not match the contents recorded in the bill of lading. 

For example, if party A entrusts a shipment of goods to carrier B, and B issues a received-for-shipment bill of lading to A, A can preliminarily prove that B has received A's goods. However, when B is about to load the goods onto the ship and discovers that the actual shipped goods do not match the information recorded in the bill of lading, B cannot issue a shipped bill of lading. In this case, B can present contrary evidence and request A to provide the correct goods that match the contents of the bill of lading.

Of course, if the carrier has reasonable grounds to suspect that the goods recorded in the bill of lading, such as the name, marks, number of packages or pieces, weight, or volume, do not match the goods actually received, or if there is no appropriate method to verify the contents of the bill of lading, the carrier can make an annotation on the bill of lading, indicating the discrepancies, the basis for suspicion, or the inability to verify.

In the case of containerized cargo, as the carrier cannot verify the contents without breaking the seal at the time of taking delivery, and there is no need to increase its own obligations, most "shipped bills of lading" for containerized cargo will have annotations such as "Said to contain" or "Said to weigh."

This means that the carrier explicitly states that the goods recorded in the bill of lading, including the name, quantity, and nature, are provided by the shipper, and the carrier cannot confirm whether the goods match what is claimed. However, it should be noted that in current judicial practice, the pre-printed "said to" on the bill of lading is often not considered a valid annotation under Article 75 of the Maritime Law.

For example, in the case of (2009) Lu Min Si Zhong Zi No. 1, the court held that "said to weight" did not clearly indicate the discrepancies, the basis for suspicion, or the inability to verify. Moreover, this statement was printed in advance and contradicted the customary practice of annotations on bills of lading, thus not constituting a valid annotation under Article 75 of the Maritime Law and not exempting the carrier from the obligation to deliver the goods according to the bill of lading.

1. Conclusive evidence

If the carrier does not make a valid reservation annotation on the bill of lading, the clean bill of lading becomes a guarantee by the carrier to deliver the goods as stated in the bill of lading to the bona fide holder of the bill of lading, and any strong evidence to contradict the contents of the bill of lading will not be accepted.

The latter part of Article 77 of the Maritime Law of China states: "Evidence different from the condition stated in the bill of lading provided by the carrier to a bona fide holder of the bill of lading, including the consignee, is not recognized." This means that even if the contents of the bill of lading differ from the actual delivery due to the shipper's fault, the carrier cannot contest the rights of the bona fide holder of the bill of lading by claiming that it is due to the shipper's fault. Instead, the carrier can seek compensation from the shipper after compensating the bona fide holder, including the consignee. 

For example, if the bill of lading states that there are 100 boxes of apples, but the actual number delivered to the consignee, who is the bona fide holder of the bill of lading, is 90 boxes, there is a shortage of 10 boxes. Even if the carrier can provide evidence that there were indeed 90 boxes delivered at the time of receipt, absolving itself of responsibility, the carrier still needs to compensate the bona fide holder of the bill of lading for the 10-box shortage and can subsequently seek reimbursement from the shipper for the corresponding loss. However, this situation only occurs when the bill of lading holder is acting in "good faith," and whether they are acting in "good faith" often depends on whether they trust the contents of the bill of lading and whether they are unaware of any discrepancies between the bill of lading and the actual goods.

Therefore, for logistics companies, when issuing bills of lading to external parties, they should pay attention to the condition of the goods received. If necessary, effective annotations should be made on the bill of lading to indicate discrepancies, suspicions, or unverifiable aspects of the goods. Similarly, if a lawful and bona fide holder of the bill of lading receives goods that do not match the clean bill of lading, and their rights are violated, they can assert their rights in a timely manner and actively reduce losses.