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THE
Baltic and International Maritime Council
(BIMCO) has developed a specific clause
for charter parties, known as the BIMCO
e-Bill Clause, which seeks to address the
use of electronic bills of lading (e-Bills)
documentation.
The
initiative aims to cope with growing interest
from the dry cargo market (in particular,
dry bulk charterers) in the use of electronic
documentation. It is part of a general drive
towards developing electronic solutions
for facilitating trade in shipping.
The
e-Bill clause was developed in consultation
with owners/charterers' groups, the UK P&I
Club and electronic systems providers, Bolero
and ESS.
The
e-Bill clause provides that at the charterers'
option, bills of lading, waybills and delivery
orders shall be issued, signed and transmitted
in electronic form with the same effect
as their paper equivalent.
Owners
shall subscribe to and use electronic (paperless)
trading systems as directed by the charterers,
as long as such systems are approved by
the International Group of P&I Clubs.
Any fees incurred in subscribing to or for
using such systems shall be for the charterers'
account.
In
addition, the charterers agree to hold the
owners harmless in respect of any additional
liability arising from the use of the systems,
to the extent that such liability does not
arise from owners' negligence.
All
parties involved in the charter chain must
sign up to the electronic system(s) as there
is no participation without registration.
The
registration process itself establishes
a contractual relationship between the third
party system provider for user authorisation
and access to data essential to enable the
electronic documentation process to function.
The
provision for a wide indemnity in favour
of owners for "additional liability"
arising from the use of the approved systems
(save for those arising out of owners' negligence)
was introduced in response to owners' concerns
about unidentified liabilities.
Unidentified
liabilities might materialise from participating
in a process with which they are not familiar.
Overall,
the BIMCO e-Bill Clause strikes a reasonable
balance between promoting the use of e-Bills
and protecting the interests of owners as
far as possible. As such, charterers may
exercise their option to use e-Bills at
any time and owners have to be prepared
for this eventuality.
It
has also been suggested that the effect
and recognition of an e-Bill in other jurisdictions
remain unclear.
For
example, the suggestion is that difficulties
may arise in respect of electronically recorded
arbitration agreements in jurisdictions
which apply the New York Convention (which
only recognises agreements in writing) and
this may affect the recognition and enforcement
of an award.
In
relation to any liabilities, which would
equally have arisen in relation to paper
bills of lading, cover is available for
P&I liabilities in the ordinary way
when using e-bills.
If
liabilities have arisen solely due to the
use of an e-Bill, cover will be available
provided the electronic trading system has
been approved by the International Group.
However,
risks associated with the use of computer
systems (such as hacking, theft of information,
viruses) are not covered by P&I clubs
and any owner wanting this specific extra
cover will need to make separate arrangements.
The
BIMCO e-Bill Clause is, however, certainly
a step in the right direction, and is likely
to develop over time. It remains to be seen
whether the container sector will now follow
suit in adopting a similar provision.
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