Laryea, Emmanuel T --- "Dematerialisation of Insurance Documents in International Trade Transactions: A Need for Legislative Reform" [2000] UNSWLawJl 4; (2000) 23(1) UNSW Law Journal 78
[∗] LLB (Hons) (Ghana) LLM (Glasgow); Doctoral and Adjunct Teaching Fellow, Faculty of Law, Bond University. My sincere thanks go to Dr Ross P Buckley, Associate Professor of Law, and Patrick Quirk, Assistant Professor of Law, both of Bond University, for their helpful comments on an earlier draft of this article. All opinions and responsibility are mine.
[1] In this article, dematerialisation means the documentation, recording or messaging of transactions in electronic format, instead of on paper. Dematerialised documentation and electronic documentation or electronic messaging will thus be used interchangeably. International trade, international sale or, simply, trade will be used to refer to international sale transactions involving international carriage of goods by sea. That is, transactions involving shipping documents and often referred to as documentary sale transactions or, restrictively, cif contracts. The writer is aware that international trade is much wider and involves more than documentary sale transactions, and documentary sale transactions could be on terms other than cif. International trade generally involves the movement of one or more persons, capital, goods, or information. See P Gibbs and H Hayashi, “Sectorial Issues and the Multilateral Framework for Trade in Services: An Overview” in Trade in Services: Sectorial Issues, UNCTAD/ITP/26 (1989) 25.
[2] UNCITRAL was created in December 1966 by the General Assembly of the United Nations with a mandate to further the progressive harmonisation and unification of international trade law. See United Nations General Assembly Resolution 2205 (XXI).
[3] See Official Records of the General Assembly, Fortieth Session, Supplement No 17 (A/40/17) (1985) at 360.
[4] This is evidenced by early trials of electronic transport documents, such as bills of lading, sea and air waybills. For example, the Atlantic Container Lines (“ACL”), one of the world’s largest container carriers, introduced an electronic sea waybill system labelled Data Freight Receipt (“DFR”) in 1971. See B Kozolchyk, “The Paperless Letter of Credit and Related Documents of Title” (1992) 55 Law and Contemporary Problems 39 at 85-6. See also work done by international bodies before 1985, for example, Legal Aspects of Trade Data Interchange; Bills of Lading and Automatic Data Processing, TRADE/WP4/R159 (1981); Legal Problems and ADP Systems in International Trade, TRADE/WP4/GE2/R123 (1978); Trade Data Interchange Restraints, TRADE/WP4/R99 (1980); Draft Recommendations on Signatures/Authentication in Trade Documents, TRADE/WP4/GE2/R111/REV1 (1979).
[5] See D Faber, “Electronic Bills of Lading” [1996] LMCLQ 232. See also Legal Aspects of Trade Data Interchange: Review of Definitions of “Writing”, “Signature”, and “Document” Employed in Multilateral Conventions and Agreements Relating to International Trade, TRADE/WP4/R819 (1992); Studies Concerning the Replacement of the CIM Consignment Note by an Instrument Suitable for Automatic Data Transmission – Docimel Project, TRADE/WP4/R479 (1987); Dispensing with a Handwritten Signature in Invoices by Means of Computer Printouts, TRADE/WP4/R405 (1986).
[6] Electronic Data Interchange (“EDI”) is the computer-to-computer transmission of information in structured form or according to agreed message format. See V Leyland, Electronic Data Interchange: A Management View, Prentice Hall (1993).
[7] AH Boss, “Electronic Data Interchange Agreements: Private Contracting Toward a Global Environment” (1992) 13 Northwestern Journal of International Law & Business 31 at 32-3; AA Pisciotta and JH Barker, “Telecommunications Regulatory Implications for International EDI Transactions” (1992) 13 Northwestern Journal of International Law & Business 71.
[8] DJP McKenzie, “Commercial Transactions on the Global Information Infrastructure: Commerce on the Net: Surfing Through Cyberspace without Getting Wet” (1996) 14 Marshall J. Computer & Info. Law 247. See generally, RD Whitaker, “Letters of Credit and Electronic Commerce” (1995) 31 Idaho Law Review 699.
[9] GI Zekos, “The Use of Electronic Technology in Maritime Transport: the Economic Necessity and the Legal Framework in European Union Law” (1998) 3 Web Journal of Current Legal Issues <http://webjcli.ncl.ac.uk/1998/issues3/zekos3.htm> RB Kelly, “The CMI Charts a Course on the Sea of Electronic Data Interchange: Rules for Electronic Bills of Lading” (1992) 16(2) Tulane Maritime Law Journal 349; AH Boss, “International Commercial Use of Electronic Data Interchange and Electronic Communications Technologies” (1991) 46 The Business Lawyer 1787; GF Chandlers, “Electronic Transmission of Bills of Lading” (1989) 20 Journal of Maritime Law & Commerce 571; RP Merges and GH Reynolds, “Towards a Computerised System for Negotiating Ocean Bills of Lading” (1986) 6 Journal of Law & Commerce 23.
[10] Information about BOLERO is available at BOLERO’s web site <http://www.boleroltd.com> .
[11] Ibid.
[12] See the Sea-Carriage Documents Act 1996 (Qld), which repealed and replaced ss 5-7 of the Mercantile Act 1867 (Qld) that regulated bills of lading. The Act was proposed for separate enactment in the various jurisdictions so it did not come into effect in all states at the same time. For the various jurisdictions, see Sea-Carriage Documents Act 1998 (Vic), which repealed ss 73-4 of the Goods Act 1958 (Vic) that regulated bills of lading; Sea-Carriage Documents Act 1997 (NSW), which repealed part 5A of the Sale of Goods Act 1923 (NSW) that regulated bills of lading; Sea-Carriage Documents Act 1997 (Tas), which repealed the Bills of Lading Act 1857 (Tas); and the Sea-Carriage Documents Act 1998 (SA), which repealed ss 14-15 of the Mercantile Law Act 1936 (SA). In this article the Act will be generally referred to as Sea-Carriage Documents Act.
[13] See Carriage of Goods by Sea Act 1991 (Cth), s 7 and Schedule 1A – Schedule of Modifications.
[14] The Electronic Transactions Act 1999 (Cth) received Royal Assent on 10 December 1999, and was proclaimed on 15 March 2000.
[15] This writer is not aware of similar legislation having been enacted in any jurisdiction, at least not before 1996 when the Sea-Carriage Documents Act came into effect in Queensland. A report compiled in 1995 from various countries – including Argentina, Belgium, Canada, France, Germany, Greece, Japan, New Zealand, the UK and the USA – indicated that none of the countries had laws that expressly facilitate electronic sea transport documents. See AN Yiannopoulos (ed), Ocean Bills of Lading: Traditional Forms, Substitutes, and EDI Systems, Kluwer Law International (1995).
[16] The term marine insurance, and indeed maritime perils, are somewhat misleading because a contract of marine insurance can, by agreement of the parties or custom of the trade, be extended so as to protect the assured against losses on inland waters or land which are incidental to the sea voyage. See the Australian Marine Insurance Act 1909 (Cth), ss 8-9; and the UK Marine Insurance Act 1906 (UK), ss 2-3.
[17] See note 1 supra.
[18] The commercial invoice is another principal document that comes with the transport and insurance documents. Parties may also require additional peripheral documents such as certificates of origin, consular invoices, health and safety certificates, and export clearance certificates. There seems to be no legal impediments to electronic commercial invoices or peripheral documents in Australia, as these documents operate as informational or transactional documents between private commercial parties. There may be problems where a government department requires an importer or exporter to present any of the documents and the department concerned is not in a position to support electronic documents, but that is not considered a legal problem in this article because it would not affect the legal validity of the documents.
[19] P Todd, “Dematerialisation of International Trade Instruments” in JJ Norton, C Reed and I Walden (eds), Cross-Border Electronic Banking: Challenges and Opportunities, LLP (1995) 105 at 107.
[20] See text around notes 137-41 infra.
[21] Where the two statues (the Marine Insurance Act 1909 and the Marine Insurance Act 1906) are referred to generally, they will be cited collectively as “Marine Insurance Act”.
[22] The corresponding UK Act section (equivalent to the Australian section) can be found by deducting six from the Australian section number. See W Holligan, “Marine Insurance” in AA Tarr (ed), Australian Insurance Law, Federation Press (1987) 319; D Cremean, “Marine Insurance” in MWD White (ed), Australian Maritime Law, Federation Press (1991) 92 at 93.
[23] Indeed the Marine Insurance Act 1906 was itself a codification of English case law of marine insurance developed over the centuries. See AL Parks, The Law and Practice of Marine Insurance and Average, vol 1, Stevens & Sons (1988) p 15.
[24] See, for example, Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at 63, where it was said that the Marine Insurance Act 1906 is the lingua franca of international insurance.
[25] In Amin Rasheed Shipping Corporation ibid at 62, Lord Diplock advocated that courts should take “judicial notice of the fact that the Standard Form of English Marine Policy, together with the appropriate Institute clauses attached, was widely used on insurance markets in many countries of the world, other than those countries of the Commonwealth that have enacted or inherited Statutes of their own in the same terms as the Marine Insurance Act 1906” (emphasis added).
[26] For a detailed judicial description of the contract formation process, see Lord Diplock’s statement in American Airlines v Hope [1974] 2 Lloyd’s Rep 301 at 304. See also HN Bennett, The Law of Marine Insurance, Clarendon Press (1996) p 29; CM Schmitthoff, Schmitthoff’s Export Trade, Stevens & Sons (9th ed, 1990) pp 499-500.
[27] HN Bennett ibid.
[28] The leading underwriter would be a reputable underwriter in the market who has expertise in the kind of cover the broker seeks and whose lead is likely to be followed by other insurers in the market.
[29] The shaping of the risk and subscription thereto by one or more leading underwriters renders the risk marketable to other ‘following’ underwriters whose confidence in the expertise of the leader will induce them to underwrite a proportion of the risk. See General Accident Fire & Life Assurance Corp v Tanter (Zephr) [1984] 1 Lloyd’s Rep 58 at 66.
[30] Sometimes the broker presents a ‘quotation slip’, the purpose of which is merely to test the market rather than to conclude a legally binding contract. See RJ Lambeth, Templeman on Marine Insurance: Its Principles and Practice, Pitman (6th ed, 1986) p 18.
[31] That is, where the broker is unable to obtain subscription up to the full value of the risk insured.
[32] Marine Insurance Act 1909, s 87; Marine Insurance Act 1906, s 81.
[33] See Hope, note 26 supra at 304-5; Tanter, note 29 supra at 531-2.
[34] HN Bennett, “The Role of the Slip in Marine Insurance” [1994] LMCLQ 94. Where the broker intends to continue to collect subscriptions after the lines written on the slip total 100 percent, it is customary for the broker to indicate this to the leader. This permits the leader to judge accurately the size of line to which the leader needs to subscribe in order to obtain the desired slice of risk and premium after signing down.
[35] Where no replacement policy is envisaged, it is customary to refer to a ‘slip policy’. See Hope, note 26 supra at 304-5.
[36] Ibid at 304, where the slip was initialled on 8 October 1968 and the policy was not issued by 28 December 1968 when the insured property was damaged and the assured sought to claim the loss under the contract. See also HN Bennett, note 26 supra, p 30.
[37] See Wilson, Holgate & Co v Belgian Grain and Product Co [1920] 2 KB 1 at 8.
[38] According to Bailhache J, in ibid, “the preparation of a policy of insurance takes some little time, particularly if there are a number of underwriters or several insurance companies, and when documents require to be tended with promptness on arrival of a steamer... it is not always practicable to obtain actual insurance policies. In order to facilitate business... buyers are accordingly in the habit of accepting broker’s cover notes and certificates of insurance instead of insisting on policies”.
[39] Note 34 supra at 94.
[40] Ibid.
[41] Ibid.
[42] “The slip is, in practice, and according to the understanding of those engaged in marine insurance, the complete and final contract between the parties, fixing the terms of the insurance and premium, and neither party can, without the assent of the other, deviate from the terms thus agreed”: Ionides v Pacific Fire & Marine Insurance Co (1871) LR 6 QB 674 at 684-5, per Blackburn J.
[43] See General Reinsurance Corp v Forsakringsaktiebolaget Fennia Patria [1982] QB 1022 at 1038, where Staughton J held that the act of initialling the slip constitutes an immediate acceptance of the assured’s offer contained in the slip. This was affirmed on appeal, Kerr LJ stating (Slade and Oliver LJJ concurring) that “the presentation of the slip by the broker constitutes an offer, and the writing of each line constitutes an acceptance of this offer by the underwriter pro tanto”. See the appeal decision at [1983] QB 856 at 866.
[44] Marine Insurance Act 1909, s 28; Marine Insurance Act 1906, s 22. Earlier English statutes rendered the entire contract null and void unless a policy was issued and stamped. See Stamp Act 1795 (35 Geo 3, c 63), s 11; Stamp Act 1814 (54 Geo 3, c 144); Customs and Inland Revenue Act 1867 (30 Vict, c 23), s 7.
[45] There is a slight difference between the Australian and the United Kingdom provisions. The Australian Act states that “subject to the provisions of any Act, a contract of marine insurance is inadmissible in evidence for the recovery of a loss under the contract unless it is embodied in a marine insurance policy in accordance with this Act. The policy may be executed and issued either at the time which the contract is concluded or afterwards” [emphasis added]. The United Kingdom equivalent, which is found in s 22 of the Marine Insurance Act 1906, does not include the phrase “for the recovery of a loss under the contract”.
[46] Other consequences are that (1) each subscription gives rise to a separate and distinct contract between the assured and the initialling underwriter, and each underwriter will be bound by the terms of the slip as it stands when the underwriter initialled it; (2) options in the resulting contracts open either to the underwriter or the assured may be exercised differently by or against either party; and (3) the assured may receive diversity of response from underwriters to its claims. To ensure that the terms of the contract are the same between the assured and all the underwriters, and also that the underwriters act in harmony under the contract, parties often insert what is known as a ‘leading underwriter’s clause’ or ‘tba L/U’. The leading underwriters clause makes all the underwriters bound by any variation made to the terms of the contract between the leading underwriter and the assured. See CM Schmitthoff, note 26 supra, p 499; HN Bennett, note 26 supra, pp 32-3. See also Jaglom v Excess Insurance Co Ltd [1972] 2 QB 250 at 257; Hope, note 26 supra at 245.
[47] The second question may not arise in respect of the UK Act, Marine Insurance Act 1906, s 22, as the section renders the slip inadmissible generally and not necessarily for the recovery of a loss under the contract. See the difference between the Australian and the UK provisions explained at note 45 supra.
[48] Marine Insurance Act 1909, s 27; Marine Insurance Act 1906, s 21.
[49] Ibid.
[50] Marine Insurance Act 1909, s 28; Marine Insurance Act 1906, s 22.
[51] Marine Insurance Act 1909, ss 27-8; Marine Insurance Act 1906, ss 21-2.
[52] Note 34 supra at 94-107.
[53] Ibid at 95.
[54] Ibid. The Australian Marine Insurance Act 1909 is derived from the UK Act, so the history of the two Acts is the same.
[55] Ibid. See also Marine Insurance Act 1909, s 27; and Marine Insurance Act 1906, s 21.
[56] Marine Insurance Act 1909, s 27; Marine Insurance Act 1906, s 21.
[57] The Aikshaw (1893) 9 TLR 605. In this case, the slip stated that the vessel was covered “at and from any port or ports and (or) place or places on the west coast of South America in any rotation” for a voyage to Europe. The policy on its wording attached only “at and from any ports and (or) places of loading”. The vessel was lost after arriving at a port on the west coast of South America but before arriving at a port of loading. Rectification was ordered to make the policy conform to the slip.
[58] (1928) 34 Com Cas 233 at 235.
[59] See also Motteux v London Assurance [1739] EngR 100; (1739) 1 Atk 545; Western Assurance Co v Poole (1903) 8 Com Cas 108.
[60] CM Schmitthoff, note 26 supra, p 500; Symington & Co v Union Insurance Society of Canton Ltd (No 2) (1928) 34 Com Cas 233 at 235.
[61] Under the UK Act, the slip is inadmissible in evidence unless the contract is embodied in a marine insurance policy. See Marine Insurance Act 1906, s 22.
[62] In the United Kingdom, the slip is not admissible for any purpose unless a policy is issued or another statute provides otherwise. See ibid.
[63] It may sound illogical to talk of an electronic slip. The term slip appears to connote paper. Probably an electronic ‘preliminary insurance contract’ sounds better.
[64] See note 63 supra, where it was suggested that the term ‘preliminary insurance contract’ appeals to the ear better than ‘electronic slip’. The phrase ‘preliminary insurance contract proposal’, instead of ‘electronic slip’, will be used to refer to the electronic proposed terms of the insurance contract offered by the assured. When the proposal has been underwritten, it may be called the ‘electronic insurance contract’.
[65] Marine Insurance Act 1909, ss 27-8; Marine Insurance Act 1906, ss 21-2.
[66] Ibid.
[67] Marine Insurance Act 1909, s 23; Marine Insurance Act 1906, s 17. See also Container Transport International Inc and Reliance Group Inc v Oceanus Mutual Underwriting Association (Burmuda) Ltd [1982] 2 Lloyd’s Rep 178.
[68] Circumstances, in this context, are facts. The facts must be known, or ought to be known to the parties, particularly the assured.
[69] See Marine Insurance Act 1909, s 24; Marine Insurance Act 1906, s 18. See also Ionides v Pender (1874) LR 9 QB at 537; Proudfoot v Montefiore (1867) LR 2 QB 511.
[70] Carter v Boehm (1766) 3 Burr 1905.
[71] HE Ivamy, Chalmers’s Insurance Act 1906, Butterworths (9th ed, 1983) p 24.
[72] See Marine Insurance Act 1909, s 24; Marine Insurance Act 1906, s 18.
[73] See a description of the contract formation process by Lord Diplock in Hope, note 26 supra at 304; and text accompanying notes 26-38 supra.
[74] See The Aikshaw (1893) 9 TLR 605; Symington & Co v Union Insurance Society of Canton Ltd (No 2) (1928) 34 Com Cas 233.
[75] The Aikshaw and Symington ibid.
[76] Marine Insurance Act 1909, s 28; Marine Insurance Act 1906, s 22.
[77] Marine Insurance Act 1909, s 28.
[78] Marine Insurance Act 1909, ss 29-30. Under the Marine Insurance Act 1906, ss 23-4, only the name of the assured, or some person who effects the insurance on his or her behalf, and the insurer’s signature are required. Section 23 of the Marine Insurance Act 1906, which specifies the particulars to be contained in a policy, had similar provisions to the Marine Insurance Act 1909, but was amended by the Finance Act 1959 (Eng), ss 30(5), (7), 37(5), Sch 8, Pt II; and the Finance Act 1959 (Northern Ireland), ss 5(5), (7), 17(2), Sch 3, Pt II.
[79] Marine Insurance Act 1909, s 28.
[80] Youell v Bland Welch & Co Ltd [1990] 2 Lloyd’s Rep 423; [1992] 2 Lloyd’s Rep 127 (CA).
[81] Wilson, Holgate &Co, note 37 supra; Diamond Alkali Export Corp v Fl Bourgeois [1921] 3 KB 443; Scott & Co Ltd v Barclays Bank Ltd [1923] 2 KB 1; Malmberg v H & J Evans & Co (1924) 30 Com Cas 107 at 113.
[82] See text around note 1 supra.
[83] AG Guest (ed), Benjamin’s Sale of Goods, Sweet & Maxwell (1997) p 1247; Tregelles v Sewell [1862] EngR 255; (1862) 7 H & N 574; Holland Colombo Trading Soc Ltd v Alawdeen [1954] 2 Lloyd’s Rep 45.
[84] Comptoir d’ Achat et de Vente Du Boerenbond Belges SA v Luis de Ridder Limitada, The Julia [1949] AC 293 at 309, per Lord Porter. See also E Clemens Horst Co Ltd v Biddel Bros [1911] UKLawRpKQB 61; [1911] 1 KB 934 at 956-9; Bowden Bros & Co Ltd v Little [1907] HCA 14; (1907) 4 CLR 1364; M Golodetz & Co Inc v Czarnikow Rionda Co Inc (The Galatia) [1980] 1 WLR 495 at 510.
[85] Marine Insurance Act 1909, s 56(1); Marine Insurance Act 1906, s 50(1).
[86] But assignment does not release the assignor from his obligation to perform the contract (and the assignee does not assume the burden of the contract) with the result that the insurer cannot actively sue the assignor.
[87] Marine Insurance Act 1909, s 56(2); Marine Insurance Act 1906, s 50(2).
[88] Marine Insurance Act 1909, s 56(3); Marine Insurance Act 1906, s 50(3).
[89] Baker v Adam (1910) 15 Com Cas 227 (the issue here related to transfer by way of security). Cf Safadi v Western Assurance Co (1933) 46 Ll L Rep 140 at 144.
[90] Marine Insurance Act 1909, s 56(2); Marine Insurance Act 1906, s 50(2).
[91] See s 56(2) of the Marine Insurance Act 1909; s 50(2) of the Marine Insurance Act 1906.
[92] [1912] UKLawRpKQB 129; [1912] 3 KB 614.
[93] HN Bennett, note 26 supra, p 335.
[94] RN Purvis and R Darvas, Commercial Letters of Credit, Shipping Documents and Termination of Disputes in International Trade, Butterworths (1975) p 90.
[95] Manbre Saccharine Co Ltd v Corn Products Co Ltd [1919] 1 KB 198.
[96] Marine Insurance Act 1909, ss 56(1) and 57 (proviso); Marine Insurance Act 1906, ss 50(1) and 51 (proviso).
[97] The elements of a valid policy are that it must specify certain information and must be signed by or on behalf of the insurer. See the text preceding note 78 supra, which outlines the information required. See also Marine Insurance Act 1909, ss 29-30.
[99] Ibid per Higginbotham J at 324.
[100] Ibid.
[101] [1989] NSW Conv R 55-446.
[102] B Wright and JK Winn, The Law of Electronic Commerce, Aspen Law and Business (3rd ed, 1998) at [14.01].
[103] For example, PINs used for automatic teller machines. See A Tyree, “Banking Law” (1995) 6 Journal of Banking Law and Practice 119.
[104] For commencement of the Electronic Transactions Act, see note 14 supra. The Electronic Transactions Act was modelled on the UNCITRAL Model Law on Electronic Commerce, following recommendations made by an expert group, the Electronic Commerce Expert Group, in a report, “Electronic Commerce: Building The Legal Framework”, submitted to the Attorney General on 31 March 1998, available at <http://www.law.gov.au/aghome/advisory/eceg/single.htm> .
[105] Electronic Transactions Act 1999 (Cth), s 10(1).
[107] See Electronic Transactions Regulations 2000 (Cth).
[108] See Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth) at 5. It has been suggested that the timeframe, in excess of two years, is unnecessarily long and should be shortened to between six and twelve months. See S Barber, “Electronic Transactions Bill Takes Shape” (1999) 18 Communications Law Bulletin 1.
[109] Electronic Transactions Act 1999 (Cth), s 3(b)-(c).
[110] See text around notes 132-5 infra.
[111] Marine Insurance Act 1909, s 56(3); Marine Insurance Act 1906, s 50(3).
[112] See Marine Insurance Act 1909, s 28; Marine Insurance Act 1906, s 22.
[113] P Todd, note 19 supra at 119.
[114] Edelstein v Schuler & Co [1902] UKLawRpKQB 82; [1902] 2 KB 144 at 154, per Bingham J.
[115] [1902] UKLawRpKQB 82; [1902] 2 KB 144. See also Bechuanaland Exploration Co v London Trading Bank [1898] UKLawRpKQB 161; [1898] 2 QB 658.
[116] See P Quirk, “The Law Merchant: Model for Cyberlaw” (1997) 1 Law and Technology 1.
[117] Note 114 supra at 155.
[118] That is, circumstances amounting to ‘equitable fraud’, the collective term used to describe the broad grounds on which equitable jurisdiction is exercised to intervene in transactions under which a party may be taking undue advantage of the strict application of the common law, and to grant equitable remedies. See I Beale, “Unconscionability in Equity and Under the Trade Practices Act 1974” [1999] National Law Review 2, available at <http://www.nlr.com.au/main.htm> .
[119] See, for example, Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 384.
[120] See Sir A Mason, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World”, (1994) 110 LQR 238.
[121] B Wright and JK Winn, note 102 supra.
[122] See AH Boss, note 7 supra at 35.
[123] Ibid at 59
[124] Ibid at 35.
[125] Ibid.
[126] For example, in the oil trade, a particular shipment may change hands more than 100 times while in transit. See P Todd, Bills of Lading and Bankers' Documentary Credits, Lloyds of London Press (1990) p 2.
[127] B Wright and JK Winn, note 102 supra at [12.01].
[128] AH Boss, note 7 supra at 36.
[129] JB Ritter, “Defining Electronic Commerce” (1992) 13 Nothwestern Journal of International Law & Business 3 at 4.
[130] See the report of the Electronic Commerce Expert Group, “Electronic Commerce: Building The Legal Framework”, note 105 supra; and Electronic Transactions Act 1999 (Cth), s 3.
[131] There are many models of legislation to facilitate electronic transactions. Sneddon distinguishes three main types: facultative laws, laws which regulate particular authentication technologies and infrastructures, and laws which extend or adapt existing regulation of transactions to cover electronic transactions. See M Sneddon, “Legislating To Facilitate Electronic Signatures and Records: Exceptions, Standards and the Impact on the Statute Book” [1998] UNSWLawJl 59; (1998) 21(2) UNSWLJ 334 at 340.
[132] Marine Insurance Act 1909, s 56(3); Marine Insurance Act 1906, s 50(3).
[133] See notes 12 and 13 supra.
[134] See Amin Rasheed Shipping Corporation, note 24 supra at 62; and text around notes 24-5 supra.
[135] In amending the sea transport documents laws in Australia to accommodate electronic documents, the texts of two statutes of global character were changed. The paper-biased texts of the Carriage of Goods by Sea Act 1991 (Cth), which enacts the International Convention for the Unification of Certain Rules Relating to Bills of Lading (“Hague Convention”) (1924) as amended by the Protocol to Amend the International Convention for the Unification of Certain Rules Law Relating to Bills of Lading Signed at Brussels on 25 August 1925 (“Hague-Visby Protocol”) (1968), were redrafted. Similarly, the paper-biased texts of bills of lading provisions in the various states were repealed and replaced with a new statute: the Sea-Carriage Documents Act, in the various states. See notes 12 and 13 supra.
[136] Marine Insurance Act 1909, s 28.
[137] JB Ritter, note 130 supra at 3.
[138] J Y Gliniecki and CG Ogada, “Legal Acceptance of Electronic Documents, Writings, Signatures, and Notices in International Transportation Conventions: A Challenge in the Age of Global Electronic Commerce” (1992) 13 Nothwestern Journal of International Law & Business 117 at 120.
[139] I Walden and N Savage, “The Legal Problems of Paperless Transactions” [1989] JBL 102 at 103; KJ Kotch, “Addressing The Legal Problems of International Electronic Data Interchange: The Use of Computer Records As Evidence in Different Legal Systems” (1992) 6 Temple International & Comparative Law Journal at 451.
[140] Questions about whether the ocean bill of lading can be dematerialised are beyond the scope of this article. Suffice it to say that, for the purpose of this article, the international business community and governments have worked, and continue to work, on the dematerialisation of bills of lading. BOLERO is the latest electronic bills of lading system. See text around notes 4-10 supra.
[141] A bill of lading may be issued to a named consignee, in which case only the consignee may validly present it to obtain the goods from the vessel. Alternatively, it may be made negotiable: issued to bearer or to order. If the bill is made to bearer, it passes from one person to another by delivery. If it is issued to order, which is usually the case, it is transferred by delivery and indorsement.
[142] Lickbarrow v Mason [1793] EngR 1503; (1787) 2 TR 63 at 69. See also MD Bools, The Bill of Lading: A Document of Title to Goods, Anglo-American Corporation (1997) p 174; AG Guest, note 83 supra, p 983; RN Purvis and R Darvas, note 94 supra, p 87.
[143] The Julia, note 84 supra at 317, per Lord Simonds.
[144] Marine Insurance Act 1909, s 57; Marine Insurance Act 1906, s 51.
[145] Marine Insurance Act 1909, s 21; Marine Insurance Act 1906, s 15.
[146] Note 145 supra.
[147] See Justice Bailhache’s judgment in Wilson, Holgate & Co, note 37 supra at 8.
[148] Purvis and Darvas, note 94 supra, p 101.
[149] Ibid.
[150] CM Schmitthoff, note 26 supra, pp 494-6
[151] Ibid.
[152] Manbre Saccharine Co, note 95 supra; Wilson, Hogate & Co, note 37 supra; Diamond Alkali Export Corp, noe 81 supra.
[153] Burstall v Grimsdale (1906) 11 Com Cas 280; The Julia, note 84 supra.
[154] It appears some American certificates of insurance may be regarded as equivalent to policies, if they contain all the terms necessary to constitute a valid policy. See P Todd, note 126 supra, p 95.
[155] [1923] 2 KB 1. Donald H Scott & Co v Barclays Bank approved earlier cases such as Manbre Saccharine Co, note 95 supra and Wilson, Hogate & Co, note 37 supra.
[157] CM Schmitthoff, note 26 supra, p 39.
[158] Ibid, p 501.
[160] Ibid at 455-6.
[161] Ibid at 456-7.
[162] CM Schmitthoff, note 26 supra, p 39.
[163] The Marine Insurance Act provides for only the policy and not the certificate of insurance. See Marine Insurance Act 1909, s 56(2); and Marine Insurance Act 1906, s 51(2).
[164] For the evidential value of electronic data, see ET Laryea, “The Evidential Status of Electronic Data” [1999] National Law Review 3, available at <http:/./www.nlr.com.au/main.htm>; C Nicoll, “Should Computers be Trusted? Hearsay and Authentication with Special Reference to Electronic Commerce” [1999] JBL 332; KJ Kotch, note 139 supra at 451.
[165] See s 30 of the Marine Insurance Act 1909; s 24 of the Marine Insurance Act 1906.
[166] See text around notes 37-8 supra.
[167] AA Pisciotta and JH Barker, note 7 supra at 73; KJ Kotch, note 139 supra at 451.
[168] CM Schmitthoff, note 26 supra, p 490.
[169] [1951] 2 Lloyd’s Rep 631. Here the plaintiffs instructed the defendants, insurance brokers, to effect an open marine insurance on their goods, obtaining immediate cover. The brokers reported that the cover was placed and two days later they sent the assured the cover note which did not contain a clause covering the goods while at the packers. That night, part of the goods were destroyed by fire at the packers’ warehouse. In an action against the brokers, the plaintiffs contended, inter alia, that the brokers owed a duty to notify them promptly of the terms of cover obtained by the brokers for them and that that duty had been breached. It was held that the brokers were under no such duty, and the plaintiffs’ claim was rejected.
[170] Ibid at 643, per McNair J.
[171] CM Schmitthoff, note 26 supra, p 501.
[172] Ibid, p 502.
[173] Ibid.
[174] See, generally, ET Laryea, note 165 supra; C Nicoll, note 165 supra.
[175] The United Kingdom equivalent can be found in s 22 of the Marine Insurance Act 1906.
[176] The United Kingdom equivalent can be found in s 50(3) of the Marine Insurance Act 1906.