Cognossement
A cognossement is the Dutch legal term for the sea transport document that records receipt, the contract of carriage and, on an original, the right to delivery. Internationally it is called a bill of lading.
What is a cognossement under Dutch law?
The cognossement is governed by Book 8 of the Civil Code, the title on carriage by sea. It is the document with which the carrier (the shipping line) declares that it has received goods for carriage, and with which it promises to deliver those goods to whoever is entitled under the document. In international trade this same document is called a bill of lading. The two names point to one instrument, not to two kinds of paper. Not every sea document is a cognossement. A sea waybill proves the contract and the receipt, but does not give the holder an independent right to claim the cargo. A telex release is a notice about a cognossement, not the cognossement itself. The legal question is therefore not what the PDF sheet is called, but whether the document has the delivery function that Book 8 assigns to a cognossement. For the declarant that question matters at the moment the terminal holds the container. Customs releases the goods after an accepted declaration. The shipping line only lets them leave the quay once the cognossement has been surrendered or cancelled. Two releases, two systems.
What three functions does a cognossement have?
First function: receipt. The shipping line acknowledges that it has taken over the goods in the condition and quantity stated on the document, unless it has made a reservation (claused B/L). A clean cognossement means that no visible damage or shortage was noted on taking over. For a cargo claim that is the starting point. Second function: proof of the contract of carriage. The shipping line's terms (the reverse of the form, Hague-Visby or another regime) bind the parties. For Customs this function is the least important. For a cargo claim it is the most important. Third function, and the CMR or the air waybill does not have it: document of title. The original cognossement embodies the right to delivery of the goods. Whoever holds the original and is entitled to delivery can claim the cargo from the shipping line. That is why a shipping line issues originals in a set, usually three, and why one outstanding original blocks release. This function makes the cognossement suitable for a documentary credit: the bank holds the sheet until the buyer pays.
To order, straight or to bearer: what changes?
A cognossement to order (order bill) names a beneficiary and is transferable by endorsement. The holder who can show an unbroken chain of endorsements is entitled to delivery. A cognossement to a named person (straight bill, named consignee) names a fixed consignee. Only that party can claim the cargo, endorsement does not work here, or only to a limited extent. A cognossement to bearer has become rare: whoever holds the sheet is entitled, which makes it a risky paper. In the declaration the form is relevant for who may take the goods, not for who is the importer. The importer follows from the sale and the power of attorney. The person entitled to delivery follows from the cognossement. Those two often coincide, but not always. A forwarder as consignee to order, with the buyer as notify party, is daily practice. To order of shipper, blank endorsed, is the form in which the sheet is negotiable without a named next holder. For the terminal what counts is who surrenders the original. For the declarant what counts is who the buyer is on the invoice, and whether that party has authorised you.
Originals, the set of three, and the telex release
A shipping line usually issues cognossements in a set of three originals, plus copies that are non-negotiable. Surrendering one original is enough to claim the cargo. The remaining originals then lose their force. As long as an original is still outstanding, the risk remains that someone else claims the cargo. That is why the terminal waits until the set has been surrendered or until the shipping line has given a telex release. A telex release (express release) is the shipping line's statement that it will deliver without surrender of an original, because the originals have been surrendered or destroyed on the loading side. The cognossement remains proof of carriage and receipt, but the document-of-title function is spent. For the customs file a copy plus the telex release is enough. For the terminal that release is the signal. Copies stamped non-negotiable copy are not a cognossement in the sense of the document of title. You may use them in the file as proof of carriage, not to claim the cargo. A scanned original sent by email is also not a surrender. Surrender happens at the line or its agent.
How does the cognossement relate to the bill of lading?
Cognossement is the term of Book 8 of the Civil Code. Bill of lading is the term on the shipping line's form, in the Incoterms, in Portbase and in almost every English-language file. The object is the same. This page explains the legal functions and forms. The bill of lading page explains the operational types: original, telex release, seawaybill, house and master, and how you check the document against invoice and packing list. The overlap is kept small on purpose. Anyone who does not understand terminal release needs the document-of-title function, and that sits here. Anyone who has to put the B/L number in Portbase needs the operational page. Both pages treat the seawaybill, because it is the most common confusion: the sheet looks like a B/L, it is not a cognossement. In Dutch correspondence with Customs you may use either term. In a file with a shipping line or a bank, bill of lading is the term they recognise. In your own administration record which type you hold (original, telex, seawaybill), not only what the file is called.
What does the cognossement mean for clearance?
The import declaration in DMS, the Dutch declaration system, does not require an original cognossement. It requires a transport document in the file with which you identify the shipment: number, container, weight, parties. A copy, a seawaybill or a house B/L is enough for that. Documentary release of the cargo is a separate track, between shipping line, terminal and consignee. Do not confuse the two. An accepted IMA does not take the container off the quay if the original is still with the bank. You do check the data of the cognossement against invoice and packing list, as with every bill of lading: consignee, notify, packages, gross, container number. If the consignee differs from the importer on the invoice, that is not an error in itself, but you must be able to explain who is authorised and for whose account the goods enter. On a T1 from the terminal the cognossement plays in the chain: the container may only leave the quay after documentary release and after the notification in Portbase with the right MRN. The cognossement opens the documentary gate, the transit declaration the customs gate. If either is missing, the container remains.