What can an importer do to claim or retrieve his goods through his shipping agent if he cannot produce the bill of lading (B/L) due to the original not being received by the importer as a result of the shipper's disappearance due to certain legal issues?
DAFTAR ISI
INTISARI JAWABAN
A bill of lading is a dated letter in which the carrier explains that he has received certain goods, with the intention of transporting the goods to the designated place, and delivering them there to the designated person, with the terms of the agreement on how the delivery will be made.
The bill of lading serves, among other things, to guarantee the holder an exclusive right to claim the delivery of the cargo, whereby with the bill of lading, the holder concerned can claim the delivered goods at the location of receipt of the goods. Thus, in our opinion, if it has been specified in the terms of delivery that the document required is a bill of lading, then the importer cannot claim the goods without a bill of lading.
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In principle, export-import activities, which are the buying and selling of international trade and transportation, whether by land and rail, sea, air, or inland waters, are one of the scopes in international trade law, as stated by Huala Adolf, quoting Schmitthoff, in the book Hukum Perdagangan Internasional (International Trade Law) (pp. 5-6).
In practice, the legal act of transporting goods between exporters and importers is proven by the existence of a bill of lading. What is a bill of lading?
What is a Bill of Lading?
A bill of lading is a dated document in which the carrier declares that it has received certain goods, to take them to the destination indicated and deliver them to the person designated along with the terms of delivery, as explained by Frank Stevens in the book The Bill of Lading: Holder Rights and Liabilities (p. 7), which reads as follows:
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The bill of lading is a dated document in which the carrier declares that he has received certain goods, to carry them to an indicated place of destination and to deliver them there to an indicated person, as well as the terms under which the delivery will take place.
In line with the above definition, the meaning of the bill of lading or what is known as a bill of lading can be found in Article 506 Commercial Code as follows:
“Konosemen” or a bill of lading is a dated letter in which the carrier explains that he has received certain goods, with the intention of transporting the goods to the designated place and delivering them there to the designated person, as well as the terms of the agreement under which the delivery will be made.
In practice, a bill of lading is issued to indirectly prove that a shipping agreement has been made, in the event that the agreement is made orally or is not set out in a written agreement.[1] A shipping agreement can take the form of a passenger ticket or a cargo document, such as a bill of lading or manifest, as summarized in Shipping 101.
The liability of a carrier for damage to goods arising during shipment is limited to the amount agreed upon in the Bill of Lading/Konosemen.
In the Bill of Lading/Konosemen, which is a shipping agreement that must be fulfilled by the respondent of cassation and the appellant of cassation, namely in clause 24, it is stated that the carrier is liable in accordance with the invoice/L.C., if at the time of loading the price of the goods is stated in writing to the carrier and the price is stated in the Bill of Lading; because there is no price of goods stated in the Bill of Lading/Konosemen, the provisions of "maximum liability" apply to damage to goods.
Contents of Bill of Lading
In practice, the bill of lading contains:
Parties involved in the shipping agreement, namely the party sending the goods (shipper), consignee, and the party transporting the goods (carrier);
Origin and destination of the shipment; and
A description of the goods contained in the shipment along with any relevant tracking or purchase order information, such as an order reference number.
Evidence of a contract of carriage and may be the contract of carriage document itself; and
Guarantees the holder an exclusive right to claim delivery of the cargo. The holder of the bill of lading, in this case, the consignee, can claim the delivered goods. This aims to protect the parties from the delivery of the wrong shipment to the wrong party.
Can an Importer Claim Goods If There is No Bill of Lading?
Furthermore, to answer your question, can the importer as the consignee make a claim on the goods sent by the exporter as the shipper through the carrier if the person concerned cannot show the bill of lading?
As explained earlier, in principle, the bill of lading serves to guarantee the holder an exclusive right to claim the shipment of cargo, which with the bill of lading, the holder can claim the goods shipped at the location of receiving goods. Thus, in our opinion, if it has been specified in the terms of delivery that the required document is a bill of lading, then the importer cannot claim the goods without a bill of lading.
However, please note that in general, payment for imported goods is made through a bank intermediary with a letter of credit. In fact, in Indonesia itself, payment of goods for certain exports must use the letter of credit payment method.[3]
Letter of Credit ("L/C") is a credit or credit notice issued by a foreign exchange bank (opening bank/ issuing bank) based on the request of the importer as its customer and addressed to the exporter as a beneficiary through its correspondent bank (advising bank) abroad.[4]
L/C provides benefits to both exporters and importers, one of which is that exporters are guaranteed to receive payment if they are able to show shipping documents that match those stated in the L/C. Later, the bank will check the completeness of the documents recorded in the L/C and will pay the invoice value.
Thus, if the exporter disappears and does not provide a bill of lading or other evidence that can be used by the importer to claim the goods sent, which results in the importer being unable to receive the goods sent as required in the L/C, then the exporter cannot receive payment.
In addition, Huala Adolf explained, in the event that an individual feels that his rights in the field of trade (ed: international) are disturbed or harmed, what he can do is ask for help from his country to propose a claim against the country that harmed him to international judicial bodies. Such mechanisms can be seen, for example, in the GATT/WTO and the International Court (p. 69).
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