Digitalization In Ports And The Legal Validity Of Electronic Bills Of Lading

Introduction

In maritime transportation, a bill of lading serves as a document that both evidences the conclusion of the contract of carriage and acknowledges receipt of the cargo, while also conferring the right of disposal over it. Historically, the legal nature of bills of lading has made them a fundamental instrument in ensuring the orderly and secure conduct of transport operations. However, in recent years, the impact of digitalization has rendered the transition of these documents into electronic form inevitable, giving rise to a new document type known as the electronic bill of lading (e-B/L). These documents offer significant advantages, including the acceleration of transportation processes, secure transfer of documentation, and reduction of operational costs. Nevertheless, they have also given rise to serious legal debates, particularly in relation to delivery and receipt procedures. This article examines the legal validity of electronic bills of lading, their implications under Turkish law, and the challenges associated with delivery and receipt.

Ⅰ. Legal Validity of Electronic Bills of Lading

Since electronic bills of lading do not require physical presentation, as is the case with paper-based documents, the identification of the legitimate holder often depends on the security protocols and technical infrastructure of the system in use. An electronic bill of lading is essentially a digital record that performs the functions of a traditional bill of lading within an electronic environment and is typically operated through specialized software or blockchain-based systems. This record is issued and signed by the carrier, delivered to the shipper, and subsequently transferred to the ultimate consignee via electronic endorsement or delegation of rights. Various platforms supporting such systems have been developed globally. Today, platforms such as essDOCS, Bolero, WAVE BL, and CargoX are among the most widely adopted solutions in this field. These platforms enable instantaneous document transfer, eliminate the risk of document loss, and significantly accelerate port operations. Especially during the COVID-19 pandemic, when the circulation of physical documents became increasingly difficult, interest in such platforms grew rapidly, prompting international carriers and major trade stakeholders to adopt electronic bill of lading systems. However, the lack of clearly defined legal mechanisms regarding possession, presentation, and endorsement in the digital context creates uncertainty over fundamental legal issues, including the establishment of title, the liability of the carrier, and enforceability against third parties.

ⅠⅠ. Legal Uncertainties in the Delivery and Receipt Process

The most significant legal issue in the context of delivery and receipt relates to how the rightful recipient of the goods is to be determined in cases where the electronic bill of lading is not physically presented to the carrier. In the case of paper-based documents, the person presenting the bill of lading can take delivery of the goods by submitting the document to the carrier, thereby providing legal certainty and security for the carrier. However, in e-B/L systems, where the document does not exist in physical form, the concept of "presentation" becomes a technical matter. It must be verified through the relevant system whether the party requesting delivery has digital control or authority over the electronic document. Technical failures, user errors, or unauthorized access during this verification process may result in serious consequences, such as the misdelivery of goods to the wrong party. Furthermore, in most systems, it is not possible for the original carrier (the issuer of the electronic bill of lading) to track in real time to whom, how, and in what sequence the document has been subsequently transferred. As a result, legal disputes may arise, including double delivery, document inconsistencies, and conflicting claims of ownership. Double delivery refers to a situation where multiple consignees assert rights to the goods based on the same bill of lading, exposing the carrier to the risk of delivering the goods to more than one party. A document conflict arises when more than one electronic bill of lading exists for the same cargo, either due to independent issuance or inconsistencies in the chain of transfers. Double delivery refers to a situation in which more than one consignee asserts a right to the goods based on the same bill of lading, thereby exposing the carrier to the risk of delivering the goods to multiple parties. A document conflict occurs when more than one electronic bill of lading exists for the same cargo, either issued independently or involving conflicting chains of transfer. To mitigate the risks of double delivery and document conflicts, certain digital platforms have developed algorithms that restrict the transfer of rights to a single, verifiable chain of control. For instance, the WAVE BL platform seeks to eliminate the risk of duplicate transfers by assigning a unique identity to each document and requiring chained, consensual authorization for every subsequent transfer. A claim of ownership arises when multiple parties assert competing rights to the same property. This situation can become even more complex if the digital system used fails to provide transparent access to audit trails and transfer histories, thereby hindering the ability to verify legitimate ownership.

ⅠⅠⅠ. Electronic Bills of Lading under Turkish Law

Under Turkish law, bills of lading are comprehensively regulated under the Turkish Commercial Code No. 6102 ("TCC"), with their form, legal function, and the relationships among the relevant parties defined primarily in Article 1228 and the subsequent provisions. However, these provisions are based solely on paper-based bills of lading, and the concept of an electronic bill of lading is not explicitly addressed or defined within the Code. While this omission does not amount to an outright prohibition of e-B/L usage, it highlights the necessity for specific legislative regulations that explicitly recognize and govern electronic bills of lading particularly in relation to asserting rights against third parties and limiting the carrier's liability. In the absence of such legal recognition, the enforceability of rights would be restricted to the parties operating within the digital system itself and would lack legal effect against external third parties. For instance, whereas the transfer and endorsement of a traditional bill of lading are executed physically through endorsement statements written directly on the document, the legal framework remains silent as to how such transactions should be carried out electronically, how they are to be recorded, and how they will be made legally binding upon third parties. Similarly, matters concerning the carrier's liability towards the party to whom the goods are delivered, and compensation for damages resulting from unauthorized or wrongful delivery, are not currently compatible with the existing legal framework. Turkish law does contain general provisions that recognize the legal validity of electronic documents, which may offer a foundation for future legal adaptation. Article 1525 of the TCC states that commercial documents may be issued electronically, and the Electronic Signature Law No. 5070 ensures the legal validity of documents signed with secure electronic signatures. In addition, Article 199 of the Code of Civil Procedure No. 6100 also accepts electronic documents as evidence. However, these regulations do not cover the digitization of documents that are negotiable instruments specific to the law of carriage. Therefore, for e-B/L systems to be implemented safely in the Turkish legal system, special, clear and direct regulations are needed.

Ⅳ. Electronic Bills of Lading under International Law

In terms of international law, there are regulations that legally enable and systematize the use of electronic bills of lading. The Model Law on Electronic Transferable Records ("MLETR") prepared by the United Nations Commission on International Trade Law ("UNCITRAL") is the most important of these. MLETR is a comprehensive model law regulating the validity, transfer, control, and presentation of negotiable instruments issued in electronic form. In the MLETR, the concept of "possession" in physical documents is replaced by the concept of authorization, called "control" in the digital environment. The person who has control over an electronic record is the authorized person to assert rights over the document. Thus, physical presentation is technically replaced by digital markers or access rights that prove the right of control over the system. However, issues such as how to securely transfer this digital control and how to prevent unauthorized access are still limited to system-based solutions.

Today, countries such as Singapore and France have adopted this law into their domestic laws, while the UK has introduced a regulation in line with the MLETR with the Electronic Trade Documents Act of 2023. This law explicitly recognizes that certain commercial documents, including bills of lading, can be converted into electronic documents and their electronic versions have the same legal effect as physical documents. (See Electronic Trade Documents Act, Change of form / (2)) In the process of digitalization of trade, the integration of such international regulations into Turkish law is inevitable. This is because both the logistics sector and related fields such as finance and insurance require the ability to transfer documents digitally in a secure manner.

Ⅴ. Conclusion

In maritime transportation, bills of lading are indispensable legal instruments in terms of proof of the contract of carriage, transfer of ownership and security of delivery. Today, with the acceleration of digitalization, it has become inevitable to transfer these documents to the electronic environment; however, this transformation has necessitated the reinterpretation of basic concepts such as possession, endorsement, and presentation, which are prescribed by traditional legal systems. Despite the speed, security and cost advantages offered by electronic bills of lading, uncertainties in the delivery and receipt processes pose serious legal risks, especially in terms of the carrier's liability and entitlement claims.

The fact that the regulations on bills of lading in Turkish law are still based on the physical document basis and the lack of explicit recognition of electronic bills of lading creates problems in practice in terms of right ownership and enforceability against third parties.

Internationally, modern approaches such as the MLETR have developed new conceptual foundations corresponding to digital possession based on the right of "control" over the document. The fact that some countries, such as the UK, have transposed this model into domestic law makes the use of digital documents in international trade both legally and commercially possible.

In conclusion, in order for electronic bills of lading to be used safely in the Turkish legal system, clear and direct regulations specific to the law of carriage are needed. In this context, updating the Turkish legislation in line with international examples will both support the digitalization of trade and reduce the legal risks encountered in port, insurance and logistics practices.

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