This appeal in cassation arose from a judgment of the Antwerp Court of Appeal against Pantainer AG. In January 2002, three unsigned copies of Pantainer Express Line bills of lading were issued. These transport documents were stamped 'copy non negotiable', and indicated Recticel as sea carrier, Legget & Platt TW Inc as consignee (or order) and MG Maher as the notify party. In February 2002 the Lykes Librator found itself off the Brittany coast in heavy weather, causing 58 containers to fall overboard and damage to 10 containers as well as the ship itself. Legget & Platt TW Inc sought compensation for the loss of its cargo, valued at USD 18,375.28.

Pantainer AG raised several issues regarding jurisdiction, applicable law, and the nature of the bills of lading. The Court of Appeal held that it was irrelevant that the transport documents were labelled 'copy nonnegotiable'. The Court held that the carriage of goods by sea in this case was governed by Belgian law, more specifically by the Hague Rules, as amended by the Protocols of 1968 and 1979, which became art 91 of the Maritime Code by effect of the Law of 11 April 1989. In private international law, the incorporation into Belgian law of the Hague-Visby Rules has the status of directly applicable law (mandatory law), which rules out the choice of law clauses appearing on the back of the bills of lading, more precisely that relating to the US COGSA (Paramount Clause), as well as that relating to German law (cl 18 - Law and Jurisdiction). Pantainer AG appealed.

Held: Appeal granted on the bills of lading issue; case (limited to this issue) to be referred back to the Ghent Court of Appeal.

Article 91 of the Maritime Code provides that a negotiable bill of lading issued for the transport of goods carried out by any vessel, of any nationality whatsoever, departing from or destined for a port in Belgium, is governed by the Rules contained to this article. According to art 91 of the Maritime Code, this article is therefore only applicable to negotiable bills of lading. In order to be able to invoke the aforementioned provision, anyone claiming compensation from the carrier must be the bearer of a bill of lading. The aforementioned provision is, in fact, exclusively applicable to the relationship between the carrier and the bearer of the bill of lading.

According to art 85 of the Maritime Code, the bill of lading must express the nature and quantity of the articles to be transported. It indicates the name and domicile of the shipper, the name and address of the consignee, the name and domicile of the master, the name, nationality and tonnage of the vessel, the place of departure and that of the destination, and stipulations regarding freight. The bill of lading also specifies the number of copies issued.

Under art 86 of the Maritime Code, each bill of lading is made in at least four originals: one for the shipper, one for the consignee, one for the master, one for the shipowner. The document must, moreover, be signed within 24 hours of loading, in accordance with art 86.4 of the Maritime Code. This signature is essential for its existence as a commercial instrument.

Finally, under art 89 of the Maritime Code, the bearer of the bill, even by virtue of a blank endorsement, alone has the right to have the cargo delivered by the master.

Pursuant to art 91A.3 of the Maritime Code, after having received and taken over the goods, the carrier or the captain or agent of the carrier shall, at the request of the shipper, issue to the shipper a bill of lading. The issuance of the bill of lading is therefore not compulsory.

Article 91A.6 of the Maritime Code provides, moreover, that notwithstanding the provisions of the preceding paragraphs of this article, a carrier, a master or an agent of the carrier will be free, for specific goods, whatever they are, to enter into a contract with divergent clauses provided that in this case no bill of lading has been or is not issued and that the clauses of the agreement reached are inserted in a receipt which will be a non-negotiable document and mention this character.

It follows from these provisions that in order for the rule contained in art 91 of the Maritime Code to apply, it is required that the bill or similar document is negotiable, but that such a negotiable document must be delivered only if the shipper requests it. Although a bill of lading is negotiable as a rule, these provisions do not prevent that it can be made non-negotiable, with the agreement of the shipper resulting from an express statement on the document. In this case, art 91 of the Maritime Code is not applicable.

The Court of Appeal considered that the bills of lading were negotiable and that the affixing on the bills of lading of the statement 'copy - non negotiable', did not change anything. The appellate Judges did not legally justify their decision.