8 August 2024
Last revised
minutes
6
Reading time
When a deal’s on the table, it can be annoying to be asked not only for endless documents but for documents which must be authenticated in seemingly arcane ways. In the case of Bills of Sale, there’s no often no choice: it’s what many ship registries require for (re)registration. Providing authenticated documents doesn’t have to take too much additional time or resources: it just takes planning and forethought.
minutes
6
Reading time
8 August 2024
Last revised
When a deal’s on the table, it can be annoying to be asked not only for endless documents but for documents which must be authenticated in seemingly arcane ways. In the case of Bills of Sale, there’s no often no choice: it’s what many ship registries require for (re)registration. Providing authenticated documents doesn’t have to take too much additional time or resources: it just takes planning and forethought.
Ensuring document authenticity is crucial to prevent fraud and confirm the validity and irreversibility of transactions, particularly in high value purchases like yachts.
As it's easy to fake documents, multiple methods and cross-checks are necessary to build confidence in their authenticity, though no method is fool-proof.
A certified copy is a true copy of an original document, usually certified by a lawyer or company director, but it doesn’t confirm the original document’s genuineness.
Notarisation is the verification, certifying, and sealing of documents, which is mandatory in some jurisdictions to make documents valid and enforceable.
Legalisation involves government bodies authenticating the signature or seal on a document, especially for international use, often requiring an apostille certificate if both countries are Hague Convention signatories.
Certification must be done by authorized individuals like lawyers or company officials, and deliberate false certification can lead to serious legal consequences.
The correct wording and format for certification and notarisation must be used, often specified by the third party requiring the document.
Notaries follow strict procedures, including checking IDs and corporate documents, and may require translations for documents in foreign languages.
Even notarised and legalised documents can be forged, so further verification through online searches and government registers is recommended.
Proper planning and adherence to authentication requirements can prevent delays and ensure compliance with legal and registration needs, particularly for documents like Bills of Sale.
Certification must be done by authorized individuals like lawyers or company officials, and deliberate false certification can lead to serious legal consequences.
The correct wording and format for certification and notarisation must be used, often specified by the third party requiring the document.
Notaries follow strict procedures, including checking IDs and corporate documents, and may require translations for documents in foreign languages.
Even notarised and legalised documents can be forged, so further verification through online searches and government registers is recommended.
Proper planning and adherence to authentication requirements can prevent delays and ensure compliance with legal and registration needs, particularly for documents like Bills of Sale.
Ensuring document authenticity is crucial to prevent fraud and confirm the validity and irreversibility of transactions, particularly in high value purchases like yachts.
As it's easy to fake documents, multiple methods and cross-checks are necessary to build confidence in their authenticity, though no method is fool-proof.
A certified copy is a true copy of an original document, usually certified by a lawyer or company director, but it doesn’t confirm the original document’s genuineness.
Notarisation is the verification, certifying, and sealing of documents, which is mandatory in some jurisdictions to make documents valid and enforceable.
Legalisation involves government bodies authenticating the signature or seal on a document, especially for international use, often requiring an apostille certificate if both countries are Hague Convention signatories.
When yachts are bought, there’s much which needs to be proven by the seller before the buyer feels comfortable handing over a considerable sum. Who is the vessel actually owned by? Has the owner (if a company) formally resolved to sell the vessel – and appointed an individual to represent it at the closing and sign the necessary paperwork? The list goes on. And that list must be included in the sale agreement.
To be presented with documents is one thing, but how do buyers know that such documents are what they appear to be? This is especially important when it comes to a selling company’s incorporation and powers: originals of the vessel’s own documentation can be provided, but the selling company will not usually be providing originals of its incorporating documentation.
No single method of authentication is foolproof, as the authenticating documents, certificates, seals and signatures can themselves all be forged with ease. It’s about building sufficient confidence, combining different approaches and cross-checking with other sources where possible. It’s always good to avoid unnecessary bureaucracy and expense, but keep in mind that third parties, such as yacht registries, may need documents to be authenticated in a particular way. Whatever methods are chosen, these need to be agreed upon at the outset.
Now let’s look at the main methods.
CERTIFICATION
What is a certified copy?
A certified copy is an accurate, complete and current copy (usually a photocopy, scan or photo) of an original document. It’s used when it’s not practical or possible to produce the original document. The certified copy will include a statement that it is a true copy of the original as at the date certified. Crucially, it does not certify that the original document is genuine, only that it is a true copy of the original.
Who can certify a document?
The certifying person is usually a lawyer or, in the case of a document relating to a company, a director or secretary of that company. If the document is also needed by a third party then it’s worth checking with that third party who can and can’t certify.
In the United Kingdom, if an authorised person deliberately falsely certifies a document as being a true copy of the original, they can go to prison for up to 18 months.
What’s the correct format?
Any third party needing the copy may also specify the wording used. If not, the following wording is usually acceptable: “I [insert full name of the certifying person] certify that this document is a true and complete copy of the original.”
In the case of photographic identification, the following could be used: “I [insert full name of the certifying person] certify that this document is a true and complete copy of the original and a true likeness of the individual [insert name].”
The certifying person will then need to sign, write his or her full name under the signature, and add their law firm’s name and address. Finally, the date is added. The exact wording and format can vary, but the essential elements must be there.
Provided all pages are attached together, then there’s not normally any need to certify each page – with the notable exception of Powers of Attorney, all pages of which must, in the UK, be certified "I certify this is a true and complete copy of the corresponding page of the original".
Fees for certification
There is no set fee for certification: fees must be fair and reasonable and will reflect time spent.
NOTARISATION
What is notarisation?
The job of a notary (also known as a notary public) is to prepare, attest or certify documents (originals or copies) under an official seal, especially for use in certain jurisdictions. Notaries are usually (but not necessarily) qualified lawyers.
Why is notarisation needed?
Notarisation may seem unnecessary – given that a far wider range of professionals can just certify copies – but it’s simply part of the legal landscape in some countries. Failing to notarise can render a document invalid or unenforceable.
What does notarisation involve?
At the outset, notaries must also comply with anti-money laundering (AML) and data protection legislation, so it’s useful to have documents likely to be needed readily available so as to avoid unnecessary delays.
Individuals involved will need to provide photographic identification. Where an individual presents corporate documents for notarisation, the company’s constitutional documents must also be presented, along with a Power of Attorney empowering that individual, and the appropriate resolutions.
The relevant document is read in full in the notary's presence. If a foreign language document is to be notarised, a translation may be needed. A notary can only authenticate a document drawn up in a foreign language if they are satisfied as to its meaning. Scrivener notaries must be fluent in at least one language other than English.
Once satisfied, the notary adds his or her notarial certificate to the document being notarised. The specific form of the certificate will depends on who needs the document to be notarised, and this information needs to be obtained beforehand. The notarial certificate is then signed by the notary and sealed with the notary's official seal.
The notary keeps a set of the originals, or copies of all documents that they make, which then serves as a permanent record. These records must be made available to anyone with a right to see them including the notary's client and any other party involved.
The final document should not be taken apart (for example, to scan) as notarised documents which have been tampered may not be accepted by the party requiring it.
E-notarisation is available in some jurisdictions, which can make the whole proves much quicker.
LEGALISATION
What is legalisation?
Certification and even notarisation isn’t good enough for some recipients. After all, who’s to say that the certifier or notary is duly qualified? And so it is that such document (in practice, normally notarised) may need to be ‘legalised’. This is the process by which one government body authenticates the signature, seal and/or stamp to the satisfaction of another country’s government body.
As with the other forms of authentication, a failure to legalise a document may mean that the document is invalid or unenforceable (or both) in the jurisdiction where it is to be relied on.
Who can legalise a document?
Who needs to legalise the document in one country depends on the whether that county, and the recipient’s country, have both ratified the Hague Convention of 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (commonly known as the Hague Convention). 91 countries are signed-up at present.
Where both are Hague Convention countries, then a standardised ‘apostille’ certificate can be obtained, relatively quickly and inexpensively. In the UK, this is done by sending the document to the Legalisation Office of the Foreign, Commonwealth and Development Office (FCDO). The FCDO checks the notary's or certifier’s name and signature against its register. If all’s in order, an apostille is applied to the document and it’s returned. The increasing use of e-apostilles is reducing fees and turnaround time, but it’s worth checking how long it could take in advance and planning accordingly.
Where one country isn’t a Hague Convention signatory, then it’ll be up to the recipient’s country’s local embassy or consulate to legalise the document. Under their rules, it may also be necessary to obtain a Hague Convention apostille beforehand.
The parties can arrange legalisation themselves. Legalisation can also be arranged by a notary on the parties' behalf. This is often preferable as the notary will be familiar with the process.
FURTHER VERIFICATION
Certified copies, notarial certificates and apostilles can all be, and occasionally are, forged. At least apostilles issued by the FCDO, for example, can be checked online on a special UK government website, if the apostille date and number are available.
More broadly, it makes sense to conduct broad online searches into individuals and companies. Increasingly, company documents can be viewed on, or downloaded directly from, online government company registers and/or third party corporate information providers. The UK has long-since provided a wealth of company information. Now many classic offshore jurisdictions also provide extensive information which can be used to cross-check directorships and constitutional documents.
Thank you to all our Members who contributed to this article. Unless otherwise stated, this article broadly describes, by way of illustration, the situation in the United Kingdom waters in respect of United Kingdom-registered vessels. This piece does not provide or replace legal advice.
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