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4B.&S. 73. THE CHARTERED BANK OF INDIA, ETC., 11. RICH 387
professes. If the customer wishes his goods to he sent by a shorter route than the
accustomed one, he should ask for it, and if refused he would exercise his choice of
sending by another carrier. But when goods are sent by the usual route, the carrier
must use reasonable diligence; and whether he has done so is a question of fact. I
doubt whether the jury were justified in finding that it was unreasonable to send the
goods by Newcastle; the defendants never held themselves out as sending goods to
Sunderland, except there was a truck load for Sunderland at Darlington, which was
not the fact in the present case. But the jury have also found that there was
unreasonable delay at Newcastle, in waiting five days for the carrier, instead of
sending the goods by railway to Sunderland ; and I think that there was considerable
evidence justifying the jury in so finding. It is a question of fact, and I see no reason
fcr being dissatisfied with their verdict.
Rule absolute to reduce the damages to 51.

[73] THE CHARTERED BANK OF INDIA, AUSTRALIA AND CHINA against RICH.
Monday, May 3rd, 1863.-Inspection of documents. Confidential communica-
tion. Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 50.-
Declaration alleging breaches of an agreement made between the plaintiffs, a
banking Company, carrying on business, amongst other places, at Bombay, and
the defendant who bad been their agent there. Plea denying the breaches.
Upon an order under The Common Law Procedure Act, 1854, 17 & 18 Vict.
c. 125, s. 50, for discovery of documents relating to the matter in dispute,
obtained by the defendant, the secretary of the plaintiffs made an affidavit
stating that the letters specified in -a schedule attached to the affidavit consisted
of communications between the head office of the plaintiffs' bank in London and
their officers at Bombay, not forming part of the res gestu, but written after the
defendant had left the service of the bank and the dispute in question in the
cause bad arisen; being on the one part instructions given and inquiries made
with the view of obtaining the information required to enable the plaintiffs to
decide as to the mode of proceeding against the defendant; several of them
having been written under the immediate direction and advice of the attorney
for the plaintiffs ; and on the other part their officers' reports and replies specify-
ing the evidence which could be adduced in Bombay to prove the breaches of
contract complained of; and that the same could not be material to the defendant
with a view of establishing his case. The defendant made an affidavit of his
belief that the correspondence in the schedule was material to the defence of the
action. Held, that all this correspondence was confidential communication which
the defendant was not entitled to inspect.

[S. C. 32 L. J. Q. B. 300 ; 8 L. T. 454 ; 11 W. R. 830. Distinguished, Baker v. London

and South Western Railway, 1867, L. R. 3 Q. B. 93. Approved, Woolley v, North
London Railway, 1869, L. R. 4 C. P. 609; Cossey v. London, Brighton and South Coast
Railway, 1870, L. R. 5 C. P. 149. Followed, Phillips v. Routh, 1872, L. R. 7 C. P.
289. Applied, Fenner v. South Eastern Railway, 1872, L. R. 7 Q. B. 771.]

The declaration (of the 19th November, 1862), stated that the plaintiffs being a
banking company carrying on business amongst other places at Bombay, in the
Empire of India, and having appointed the defendant as their agent at Bombay, it
was by articles of agreement, dated the 9th September, 1857, agreed between the
plaintiffs and the defendant that he would proceed to Bombay and enter upon the
discharge of his duties, and diligently, carefully, and faithfully apply himself to the
duties and conduct of his office, under the direction, control, and orders of the board
of directors, and of the manager and secretary of the bank. It then averred that the
defendant entered upon the appointment and proceeded to Bombay, and alleged, as
breaches, that the [74] defendant did not faithfully and diligently perform his duties
as such agent, but, on the contrary, acted carelessly, negligently and unfaithfully in
the same, and lent the money of the plaintiffs to certain persons who were unsub-
stantial and ought not to have been trusted, and whose credit and responsibility were
bad; and, in violation of the directions and orders of the board of directors and
manager and secretary as to the sums of money he should advance to a certain class
388 THE CHARTERED BANK OF INDIA, ETC., 1). RICH 4B.&S. 75.

of persons, advanced sums of money to such persons contrary to such orders; and,
also, discounted bills of exchange for native merchants of India, without taking
proper securities, and renewed such bills in violation of the orders of the directors ;
and also sent in and returned to the plaintiffs incorrect and untrue statemenits
respecting the business transacted by the defendant for them, and as to the money
lent by him on their account.
The defendant pleaded, among other pleas, a denial of the breaches alleged in the
declaration.
On the 27th November, 1862, upon an application by the defendant for a discovery
of documents, Crompton J. made an order directing that the plaintiffs should answer
upon affidavit, stating what documents they had in their possession or power relatijg
to the matters in dispute, and whether they objected, and on what grounds, to their
production.
On the 2nd February, 1863, James Caller Stewart, the secretary of the bank, made
an affidavit, to which were attached two schedules, in which was set out a list of all
the documents in the possession or power of the plaintiffs relating to the matters in
dispute in this cause, pursuant to the above order : stating that, with respect to the
documents specified in the first schedule, the plain-f75]-tiffs were willing that they
should be produced to the defendant; but that with respect to the correspondence
specified in the second schedule, it consisted exclusively and entirely of communica-
tions between the head office of the plaintiffs' bank in London and their officers at
Bombay, not forming part of the res gestme, but written after the defendant had left
the service of the bank and the dispute in question in this cause had arisen ; that
that correspondence consisted entirely and exclusively, on the one part, of the
instructions given and inquiries made by the head office of the plaintiffs' batik in
London to arid of their officers in Bombay, with a view of obtaining the information
required to enable them to decide as to the mode of proceeding against the defendant
and also generally on the merits of the claim in this action ; and, on the other part,
of their officers' reports and replies thereon and thereto, which specified the evidence
which could be adduced in Bombay to prove the breaches of the contract complained
of in the declaration, and the same could in no way be material to the defendant with
a view of establishing his case ; and that for these reasons the plaintiffs objected to
the production of the documents specified in the second schedule. The documents
specified in the second schedule were letters from J. C. Stewart to A. Morrison, agent
of the plaintiffs' bank at Bombay, and answers thereto, between 18th April, 1861,
and 14th November, 1862, inclusive, some of them being dated before the 16th
August, 1861 ; also "weekly states" from time to time rendered by A. Morrison,
whilst so acting, to the head office in London, from 4th May, 1861, to the 27th
September, 1862.
On the 12th February, 1863, a summons, calling upon the plaintiffs to show cause
why the defendant should not be at liberty to inspect and take copies of and ex-[76]-
tracts from all the documents mentioned and referred to in the first and second
schedules mentioned in the affidavit of discovery of documents made by J. C. Stewart,
was heard before Crompton J., and was by him referred to the Court.
On the 28th April the defendant made an affidavit, stating his belief that the
correspondence specified in the second schedule was material to the defence of the
action, and that it was advisable and necessary for his defence that he should have
inspection and be at liberty to take copies of the correspondence and documents, and
that he was advised arid believed that he should derive material benefit and advantage
from the inspection of them : that he was advised and believed that he had a good
defence to the action, and that this application was made bonn fide and not for the
purpose of delay.
An affidavit of George Ure Adam, manager of the plaintiffs' bank, stated that the
correspondence specified in the second schedule consisted entirely and exclusively on
the one part of the instructions given and inquiries made on the part of the head
office of the plaintiffs' bank in London to and of their officers in Bombay, with a view
of obtaining evidence in support of the plaintiff's claim against the defendant in this
action, aid on the other part of their officers' reports and replies thereon and thereto,
which specified the evidence which could be adduced in Bombay to prove the breaches
of contract complained of in the declaration ; and that on and subsequently to the
16th August, 1861, those instructions were given and those inquiries made under the
4 B & S.V. THE CHARTERED BANK OF INDIA, ETC., V. RICH 889

immediate direction and advice of the plaintiffs' attorneys acting as such, and in the
conduct of this litigation, and with a view to it, and with a view to the evidence in
support of the plaintiffs' claim in this action ; and those reports and replies consisted
exclusively of the [77] information obtained in pursuance of such instructions, and
for the plaintiffs' attorneys, and for the purposes aforesaid ; that he was advised and
believed that the correspondence would in no way support the defendant's case, and
that the only benefit and advantage which the defendant would derive from the
inspection of the same would be the knowledge which he would acquire of the
evidence which the plaintiffs' attorneys and agents had up to that date been able to
obtain in support of the plaintiffs' case.
In Easter Term, Bovill obtained a rule nisi in the same terms as the summons
heard before Crompton J. !.1a cited T' e Lo;-do; Cas Light ompay v. The !'stry ol
Chelsea (6 C. B. N. S. 411), Flight v. Robinson (8 Beav. 22) and Maden v. Veevers
(7 Beav. 489); also Glyn v. Caulfeild (3 Mac. & G. 463) and Kerr v. Gillespie (7 Beav.
572) ; and Crompton J. referred to Bartlett v. Lewis (12 C. B. N. S. 249).
Lush shewed cause.-As to the documents in the second schedule, this is a fishing
application to see what evidence the plaintiffs have against the defendant in support
of the action. The affidavit of the defendant does not state what is to be established
by an inspection of the documents. The Court of Chancery has never compelled a
party to give inspection of a correspondence carried on for the purpose of obtaining
evidence in a suit. The cases cited on moving for the rule do not support it. Con-
fidential communications relating to the suit, though not strictly between attorney
and client, are within the rule as to protection ; Steele v. Stewart (1 Phill. 471) ; Reid
v. Langlois (1 Mac. & G. 627); Lafone v. The Falkland Islands [78] Company (No. 1)
(4 K. & J. 34), per Wood V.C., Glyn v. Caulfeild (3 Mac. & G. 463). And it makes
no difference whether the letters were written by the party before or after he had
consulted his attorney, if they were with a view of obtaining evidence to support
his case. Further, this Court is not bound by the decisions in the Courts of Equity.
Watkin Williams, who was with him, was not called upon.
Bovill and Hannen, in support of the rulo.-The affidavit of the defendant in
support of the rule is in the form given in Arch. Pr. by Chitty, Practical Forms,
p. 151, 9th ed. The party making the affidavit cannot pledge himself as to the
points of his case which the documents sought to be inspected will support, seeing
that he does not know the contents of the documents. [Lush. In Wigram on the
Law of Discovery, p. 208, 2nd ed., it is said, " In determining these questions-the
first thing to be observed is, that the onus is upon the plaintiff to prove his right to
see the documents, the production of which he calls for, and that the only evidence
upon which the Court can act in his favour, is the admission of the defendant."] The
party who files a bill in Chancery for a discovery makes no suggestion; and the
parties here have passed what is analogous to the first stage in such a bill. The filing
of the documents in the schedule admits that they are relevant to the matters in
dispute, and that relevancy entitles the defendant to an inspection of them unless
the plaintiffs call bring them within an exception, or excuse themselves from producing
them for inspection ; if they are relevant, the defendant has a right to judge for
himself of their [79] materiality to the support of his defence ; Smith v. The Duke of
Beaufort (1 Hare, 507, 519, 520), per Wigram V.C. ; Manselt v. Feeney (2 J. & H.
320, 323), per Wod V.C. ; Figkt v. Robi:!.son (8 Beav. 22, 33, 34, 38), per Lrd
Langdale M.R. ; Nias v. The Northern and Eastern Railway Company (3 My. & Cr.
355, 357). [Cockburn C.J. I am satisfied that these documents do not relate to the
defendant's case. Blackburn J. All the documents were written in contemplation of
impending litigation.] Letters between a party to a suit and an unprofessional agent,
whether written before or after the institution of the suit, are not privileged ; Kerr v.
Gillespie (7 Beav. 572), which was heard before, but decided after, Flight v. Robinson
(8 Beav. 22, 33, 34, 38), Maden v. Veevers (7 Beav. 489), Glyn v. Caulfeild (3 Mac. & G.
463), Colman v. Trueman (3 H. & N. 871, 878), per Pollock C.B. In Goodall v. Little
(1 Sim. N. S. 155), and Lafone v. The Falkland Islands Company (No. 1) (4 K. & J. 34),
the letters were privileged on the ground that they were communications between the
attorney or his agent and the client. Here the correspondence was between the
plaintiffs and their agent in India, and not the agent of their attor;ey.
At any rate, on the authority of Kerr v. Gillespie (7 Beav. 572) and Glyn v. Caulfeild
 THE CHARTERED BANK OF INDIA, ETC., V. RICH d 1. & S. 8a.

(3 Mac. & G. 463), the defendant is entitled to inspect the letters written before the
16th August, 1861, when the plaintiffs first consulted their attorney.
Cockburn C.J. I am of opinion that this rule ought to be discharged. The true
doctrine on this subject is clearly and admirably stated by Pollock Chief Baron in
his judgment in Hunt v. Hewitt (7 Exch. 236, 244): [80] "The right of a plaintiff in
equity is limited, first, to a discovery confined to the questions in the cause ; secondly,
of such material documents as relate to the proof of his, the plaintiff's, case on the
trial; and does not extend to the discovery of the manner in which the defendant's
case is to be established, or to evidence which relates exclusively to his case. The
party applying, therefore, who is in the same situation as a plaintiff in equity, must
shew, first, what is the nature of the suit, and of the question to be tried ill it ; and
it seems also, that he should depose in his affidavit to his having just ground to
maintain or defend it ; secondly, the affidavit ought to state with sufficient distinctness
the reason of the application and the nature of the documents, in order that it may
appear to the Court or Judge that the documents are asked for the purpose of
enabling the party applying to support his case, not to find a flaw in the case of the
opponent, and also that the opponent may admit or deny the possession of them. To
this affidavit the opponent may answer, by swearing that he has no such documents,
or that they relate exclusively to his own case, or that he is for any sufficient reason
privileged from producing them; or he may submit to shew parts, covering the
remainder, on affidavit that the part concealed does not in any way relate to the
plaintiff's case. The same course would be pursued in equity." The Court are not
bound by the denial of the party at whose hands inspection is sought that the docu-
ments relate to the case of his adversary ; but if they call collect from the materials
before them, that the documents, although they relate to the matters in dispute, are
not relevant in the sense of tending to establish the case of the party who asks for
inspection, then they will not order it. Here we know from the [81] statements of
the two litigant parties what the nature of the documents is. After the dispute had
arisen the plaintiffs in London corresponded with their agents il India, with a view
to see what case they could establish against the defendant; and these are the
documents in question. Such documents are not like mtiniments of title or accounts,
which would be available as proof of matters in dispute between the litigant parties ;
they are communications between one of those parties and his agents for the purpose
of getting up the case which he intends t6 prove against the other in a Court of
justice. I find no authority for saying that communications between one of the litigant
parties and their attorney or their agent, which are of a confidential character, are to
be produced to the opposite party for inspection simply to enable him to see whether
there is anything in the case of his opponent which is inherently weak, or which will
enable him to make out his own case. Even if there were authority that such con-
fidential communications might be made the subject of a bill of discovery, I should
not be disposed to yield to it, for we have no right to compel a party to disclose them
for the advantage of his adversary. If a man writes a private letter to an agent or
friend asking him to obtain information for him on a matter as to which he is about
to engage or has already engaged in litigation, I doubt whether a discovery or inspec-
tion of the answer to that letter would be ordered by any of the learned Judges in
equity to whose decisions reference has been made ; and I will not be a party to
establishing such a precedent. I am far from saying that ourt jurisdiction as to dis-
covery and inspection is not co-extensive with that of the Court of Chancery. I
think with Mr. [82] Bovill that the object of the recent legislation was to prevent
the necessity of a party in all action at law having recourse to a Court of equity for
discovery and inspection, and therefore I should be sorry to stop short of any jurisdic-
tion in the matter exercised by such Court. But there is no case which goes the
length of the proposition contended for by Mr. Bovill. And therefore according to
principle and practice we ought not to grant the inspection for which the defen-
dant asks.
Wightman J. I am entirely of the same opinion. The true principle which
governs this case is laid down by Pollock Chief Baron in the passage which has been
read by the Lord Chief Justice from the judgment in Hunt v. Hewitt (7 Exch. 236, 244).
Blackburn J. I cannot agree with Mr. Bovill that when documents are scheduled
as relevant to the cause we have simply a ministerial duty to order the inspection of
them, unless the party to whom they belong makes out that they are privileged
4 S. & S. 9. SMITH V. STOKES

communications between himself and his attorney, 'or shews something else which
gives them a privilege. Under The Common Law Procedure Act, 1854, 17 & 18 Viet.
c. 125, s. 50, the Court or Judge having before them the answer of the party as to
the documents in his possession ox power relating to the matters in dispute, and his
objection to the production of them, "may make such further order thereon as shall
be just." I think the Legislature did not mean that we should be bound by the same
rules by which a Judge of a Court of equity is [83] bound ; but that we should be
regulated by what is just as between the parties. We have to see whether the docu-
ment s are such as would tend to elucidate the facts material to the case of the party
in the cause appying for inspection : in a Court of equity the test would be, whether
they were material to the case of the plaintiff on the bill of discovery, who can shape
his bill in various ways. It is not necessary that the documents should be legal
evidence; though it may be material to discuss whether they would be so. The
practice of the Court and of the Judges at Chambers has been to inquire what, from
the nature of things and of the facts in the particular case, would tend to further the
ends of justice, and, looking at all the circumstances and exercising a sound and
rational discretion, to order the inspection of those documents which appear to be
material to the case of the party applying. In the present case all the documents,
after a particular date, fall within the principle of communications by an attorney or
of matters done by and commtnications made through an agent of the attorney, or of
matters which would have been done by an attorney but for the distance of the place
occasioning the necessity of employing an agent.
But there are several documents written previously to the date at which an
attorney was consulted : the plaintiffs, being about to consult their attorney, write out
and get from abroad these documents, which are rough notes from which a statement
was to be made and laid before him. As to these we have a discretion, and I think
we ought not to grant inspection. If I thought that the present case was like Colman
v. Tueman (3 H. & N. 871), in (84] which there was, a question whether there had
heloi f-,ild committedl hy the plait tiffk A-nd their agenits in India, I might be of a
different opinion. In that case the parties to the action were resident in this country,
and I succeeded in persuading Erie J., at Chambers, that he ought to allow inspection
of the documents which had passed between the plaintiffs here and their agent in
India; and the Court of Exchequer said that they would not take upon themselves
to say that it was a wrong exercise of discretion. I am not sure that all the Barons
approved of the order, or decided more than this, that Erie J. having in his discretion
made the order they would not say that he was wrong. That is different from saying
that the Court or Judge is obliged to allow an inspection of such documents.
Rule discharged as to the documents in the second schedule.

SMITH, Appellant, STOKES, Respondent. Saturday, May 30th, 1863.-Highway. Steam

engine. 5 & 6 W. 4, c. 50, s. 70.-Stat. 5 & 6 W. 4, c. 50, s. 70, enacts that it
shall not be lawful to erect or cause to be erected any steam engine within
twenty-five yards from any part of any carriageway, unless it shall be within
some house or other building, or behind some wall, or fence, sufficient to conceal
or screen it from the carriageway, so that it may not be dangerous to passengers,
horses, or cattle : Held that a portable steam engine, upon wheels and drawn by
horse power, used to drive a threshing machine within a barn, but not fixed
thereto or to the soil, was within this enactment.

[S. C. 32 L. J. M. C. 199; 8 L. T. 425; 11 W. R. 753.]

Case stated by justices under stat. 20 & 21 Viet. c.43, s. 2.

[85] At a Petty Sessions held at Sandwich, in the county of Kent, before two
justices of the peace, the appellant was convicted upon an information of the
respondent, superintendent of police, that he the appellant caused to be erected a
steam engine within four yards from the centre of a carriageway and highway leading
from Eythorne to Lydden, such steam engine not being placed within any house or
other building, nor behind any wall or fence, sufficient to conceal or screen the same.
from such way, so that the same might not be dangerous to passengers, horses, or
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Citations:

Bluebook 21st ed.

English Reports Full Reprint Vol. 7 - House of Lords .

ALWD 6th ed.

. English Reports Full Reprint Vol. 7 - House of Lords .

APA 7th ed.

English Reports Full Reprint Vol. - House of Lords. .

Chicago 17th ed.

English Reports Full Reprint Vol. 7 - House of Lords. , .

McGill Guide 9th ed.

English Reports Full Reprint Vol. 7 - House of Lords (: ., )

AGLC 4th ed.

English Reports Full Reprint Vol. 7 - House of Lords (., )

MLA 8th ed.

English Reports Full Reprint Vol. 7 - House of Lords. , . HeinOnline.

OSCOLA 4th ed.

English Reports Full Reprint Vol. 7 - House of Lords. , .

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-- The search text of this PDF is generated from uncorrected OCR text.
VI CL & FNU Y. DUNLOP V. LAMBERT [1838, 1839]
The result. therefore is, that., with your Lordships' concurrence, I should propose to
vary the order so as to direct a new trial, reserving the costs, and striking out that
part. of the order which directs the first verdict to be given in -evidence on the second
trial.
The following order was afterwards entered on the Journals of the House:
"That the said order of the Court of Chancery in Ireland, of the 19th of February
1838, in part complained of in the said appeal, be varied by omitting so much thereof
as directs that the plaintiff be at liberty on such new trial to give the former verdict
in evidence, and that the defendants (Alicia O'Connor, etc.), the trustees, do, pay the
costs of the former trial; and that, subject to such variation, the said order be hereby
affirmed. And it is further ordered, that the question of the costs of such former
trial be reserved till after the new trial directed by the said order shall have
been had." (Lords' Journals, 1839, p. 347.)

[600] APPEAL
FROM THE COURT OF SESSION.

WILLIAM DUNLOP and Others,--Appellants; GEORGE ANTHONY LAMBERT

and Others,-Respondents [March 1, 5, 6, 1838; July 16, 1839].
[Mews' Dig. iii. 197; xiii. 552; 7 Scots R.R. 266. As to consignor suing, see Cork
Distilleries Company v. Great Southern and Westein Railway Company, 1874,
L.R. 7 H.L. 269. Cited in Colonial Insurance Company of New Zealand v.
Adelaide Marine Insurance Company, 1886, 12 A.C. 139; and cf. Great Western
Railway Company v.Bagge, 1885, 15 Q.B.D. 625, on point as to delivery to
carrier.]
Though, generally speaking, where there is a delivery to a carrier to deliver to
a consignee, the latter is the proper person to bring the action against the
carrier, yet if the consignor make a special contract with the carrier, such
contract supersedes the necessity of showing the ownership in the goods, and
the consignor may maintain the action, though the goods may be the property
of the consignee.
The question whether the goods were delivered to the carrier at the risk of the
consignor or consignee, is a question for the jury. The delivery of goods to
a carrier by a consignor, does not necessarily vest the property in them in
the consignee.
This was aa appeal from two interlocutors of the Court of Session, pronounced
under the following circumstances :-The Appellants were wine and spirit-merchants
in Edinburgh, and the Respondents, most of whom resided at Newcastle, were the
owners of a steam vessel called the Ardincaple, which was in. the habit of passing
between. Leith and Newcastle, conveying passengers and goods. On the 31st of
August 1833, the Appellants shipped on board the Ardincaple a puncheon of spirits,
addressed '"Mr. Mathew Robson, Collier-row, by Houston-le-Spring; W. D., No. 1369;
105 gs.; care of Mr. Lattimer, Newcastle."
[601] The bill of lading subscribed by the agents for the owners on this occasion,
dated the 31st August 1833, declared the goods to be deliverable " unto Mr. Mathew
Robson, Collier-row, by Houston-le-Spring, or to his assigns,-freight for the said
goods being paid by William Dunlop and Co." The obligation of delivery at New-
castle, undertaken by the owners, was qualified in express terms with the ordinary
exception, " all and every other dangers and accidents of the seas, rivers, and navi-
gation of whatever nature and kind, excepted."
During the severe weather of Autumn 1833, the Ardincaple, in the course of a
voyage from Leith, encountered one of the violent tempests which then prevailed.
The gale gradually increased until it blew a hurricane. One heavy sea struck the
vessel on the larboard quarter, and broke on board with such violence as to sweep
off every person then on deck, except the man at the helm, being in all nine indi-
viduals, of whom six, including the master, perished. The mate and the remaining
crew, finding that the tempest rather increased, and that the vessel, notwithstanding
824
 DUNLOP V. LAMBERT [1888, 1839] VI CLARX & DUMUY.

their utmost skill and diligence, was labouring in imminent peril, determined to
throw overboard a part of the cargo, for the safety of the remainder, ae well as of the
vessel itself, and of their own lives and the lives of the passengers. Accordingly,
and in the view of the threatening and perilous circumstances in which they were
placed, and which presented no appearance of abatenlent, they made a jettison of
the heavy goods composing the cargo, which eventually proved the safety of the whole
concern, as the vessel was thereby lightened, and enabled to reach its destined port.
On the same day on which the cask was shipped, the pursuers, William Dunlop
and Co., wrote a letter of [602] advice to Robson, the vendee, notifying the shipment,
and transmitting to him an invoice, along with the bill of lading, by which the goods
were made deliverable to him, or his assigns. In the same letter they informed him
that they had drawn on him, by bill at three months, payable in London. The letter
contained the following charge, which made part of the sum for which the pursuers
drew on the vendee:-
"To freight paid to Newcastle, 10s.; insurance, one-half per cent., 8s."
In point of fact, no insurance had been effected, and the pursuers had no order,
instructions, or power, to effect insurance. In the end of this letter, the pursuers
say,---" The spirits will be in Newcastle on Monday morning, if all is well."
The Ardincaple arrived in the harbour of Shields on the evening of the 2d Septem-
ber; and, as soon as the cargo was overhauled, it appeared that the cask of spirits,
the property of Mr. Robson, was among the goods jettisoned under the circumstances
above stated. The Appellants commenced an action against the Respondents to re-
cover the value of the cask of spirits, and the Lord Ordinary, by an interlocutor of
June 1835, established the pursuers' title to maintain the action. The following
issues were then prepared as exhaustive of the whole cause:-
" 1. Whether on or about the 31st day of August 1833, the pursuers shipped a
puncheon of spirits on board the Ardimaple, of Newcastle, a vessel belonging to the
defenders, for the purpose of being conveyed to Newcastle, and delivered to Mathew
Robson, Collier-row, Houghton-le-Spring, care of Mr. Lattimer, Newcastlel And,
" 2. Whether the defenders wrongfully failed to deliver the said puncheon- to the
said Mathew Rob-[603]-son, and are indebted and resting owing to the pursuers in
the sum of £75 9s., or any part thereof, with interest thereon, as the value of the said
puncheon of spirits?"
The case came on for trial before the Lord President and a jury, on 2 1st March
1837. The Appellants proved their case by several witnesses and depositions,. and
among the depositions they put in that of Robson, in which it was stated that he
received an invoice of the puncheon, and that a bill was drawn by William Dunlop
and Co., upon this deponent, for £75 17s., the amount of such invoice, and was re-
newed when due: That the said bill was so renewed in consequence of another pun-
cheon being sent a month later: That deponent desired Mr. Dunlop to insure the
same, and to charge the expenses of that, and the freight in the invoice, to said
deponent: That the said puncheon was to be safely delivered on the quay at
Newcastle-upon-Tyne, before deponent was to consider it his property: That de-
ponent has not received a farthing for the loss: That deponent made an affidavit that
the puncheon was ordered from Messrs. Dunlop, and lost at sea.: That deponent got
a letter from Newcastle, from the agents of the Ardincaple there, stating that he had
to make an affidavit before a magistrate, that the puncheon that was lost was his: That
the said letter was a circular letter: That deponent made that affidavit, supposing it
to be a matter of form, to enable Messrs. Dunlop, of Edinburgh, to recover the
amount of insurance: That deponent had no idea that Messrs. Dunlop had acted at
that time as their own underwriters: That the loss of said puncheon did not cost
deponent one farthing: That deponent believes that the loss of the said puncheon
was sustained by Messrs. Dunlop.
[604] No evidence was adduced by the Respondents, but they insisted on the ob-
jection to the title, founded upon- the fact of the puncheon in dispute having been
invoiced, and made deliverable to Robson.
His Lordship, in directing the jury, held that the Respondents' objection to the
Appellants' title, as raised at the trial, was competent, and that the objection was
valid in itself. His Lordship directed the jury thus :-that "the pursuers appeared
to be entitled to a verdict upon the first issue, and that the only question in dispute
825
wrCa E & UinLY. DUNLOP v. LAMBERT [1838, 1839]
related to the second issue; and did direct the said jury, in point of law, that as it
appeared that the pursuers, at the time of furnishing the puncheon of spirits in quese-
tion, had sent an invoice thereof to Mathew Robson, the purchaser, bearing that the
same had been insured, and that the freight thereof and insurance were charged
against the said Mathew Robson in the said invoice, the pursuers were not entitled,
in law or interes to recover the value of the said puncheon from the defenders"
The Appellants took an exception to this charge. The jury, however, adopted the
law of the direction, and then returned a verdict finding that the Respondents were
liable for the loss, and that they wrongfully failed to deliver the puncheon to Mathew
Robeon; and on the last point of the second issue, they found, "that the defenders
(Respondents) are not liable to the pursuers (Appellants) for the value of the spirits,
because they were not, at the time of the loss, the rightful owners of the goods in ques-
tion, their invoice showing that their right in the whisky ceased at the time of
shipment."
The bill of exceptions was afterwards heard before the Court (along with a separate
motion by the Appellants for a new trial) ; the pursuers maintaining, in [605] bupport
of their exception, that the objection was not well founded in itself.
The Court pronounced the following interlocutor, disallowing the bill of ex-
ceptions, and refusing to grant a new trial :-" Edinburgh, 30th June 1837.-The
Lords, after hearing counsel for the parties, disallow the bill of exceptions in this
case; refuse the motion for a rule to show cause why a new trial should be granted;
find the defenders (Respondents) entitled to expenses since the date of trial;
appoint an account thereof to be given in, and remit the same to the auditor to be
taxed, and to report."
The Court subsequently pronounced judgment, and awarded expenses, by the
following interlocutor:-" Edinburgh, 6th July 1837.-The Lords having heard
parties on the motion of the defenders (Respondents), apply the verdict, assoilzie
the defenders, find expenses due subject to modification, appoint an account thereof
to be given in, and remit the same to the auditor to be taxed, and to report.."
The present appeal was against the above interlocutors.
Sir W. Follett, for the Appellants :-The averments in the summons here are
sufficient to support the pursuers' title. If that was meant to be disputed, the other
side should have raised an issue to try the question. But the only issues are, first,
whether the pursuers shipped a puncheon of spirits on board the Ardineaple, on the
31st of August, for the purpose of being delivered to Mr. Robson, of Newcastle; and
secondly, whether the Respondents wrongfully failed to deliver the said puncheon,
and are indebted to the pursuers in £75 as the value thereof.-[Lord Brougham:
Could that be determined without settling the question of property? The question
is, whether [606] the pursuers were damnified by the non-delivery to Robson. Could
they be so if the spirits were not their property?]--That is the usual form in which
this question is raised. The failure to deliver is necessarily an injury. The question
here is, whether the parties being indebted is an inference of law, but that was dis-
posed of by the Lord Ordinary before the issue was sent to the jury. The Lord
President, in suffering that part of the case to go to the jury, left to them matter
which had been previously disposed of by the Lord Ordinary. The defence here is,
that the pursuers have no title, on the ground that they had consigned the goods to
a person at Newcastle; and the Respondents say that the bill of lading and invoice
divested the right of the pursuers, and vested it in the consignees. This is an issue
sent to the Court by the force of the statutes 55 Gee. 3, c, 42, and 59 Geo. 3, c. 25.
The parties must be bound by the provisions of these Acts, and were confined to the
question raised by the very words of the issues. That question was, whether the
goods were delivered and lost. It was found for the pursuers, yet the Lord President
directed a verdict for the defenders. There was sufficient to be left to the jury, but,
according to the construction put on the bill of lading by the Lord President, the
pursuers were certain to lose, for the property being vested in the consignee was
sufficient to prevent them from maintaining the action. There was therefore a
clear misdirection, independent of the form of the issue. The plaintiffs had shipped
on board this steam vessel the puncheon in question. To whom did the defendants
look for payment of the freight; was it the consignee? The words of the bill of lading
are, "to be delivered to Mr. Mathew Robson, Collier-row,--freight for the said goods
826
 DUNLOP 'V. LAMBERT [1838, 1839] vi CLARK & FiN Y.

being paid by W. Dunlop and Co." The [6071 last part is as a note to the contract.
These persons now became the shippers of the goods, paying freight. There was a
charge stated for insurance, but in fact there was no regular insurance effected, but
Dunlop and Co. received half per cent., and they were at the risk of the goods till they
reached Newcastle. Whether the goods were the goods of the shippers, or of any other
persons, is immaterial, for the contract with the Respondents was an absolute contract
to carry the goods, without any question as to the persons to whom the goods meanly
belonged. This is an action for non-fulfilment of that contract, and the question is
who are to be the parties to the suit? It is clear that the action can only be properly
maintained in the name of the consignors. It is clear that the puncheon was to be
safely delivered on the quay at Newcastle, and was considered as the property of the
shippers, with whom the contract entered into by the Respondents as the carriers,
was in fact made. In the deposition of Robson used at the trial, he swore "that the
puncheon of rum was to be safely delivered on the quay at Newcastle-upon-Tyne before
he was to consider it his property." The real question here is, whether the Appel-
lants and the Respondents were the contracting parties; for if they were, and the
Appellants paid the freight, they are entitled to maintain this action for a breach
of the contract. This is a question of English law, and must depend on the effect
to be given to many cases which have happened in the Courts here. In the
first place, could the vendors have maintained an action for the price of these goods
before they were delivered on the quay at Newcastle? They could not. Robson
says they were not his goods till then, and the parties have acted on that principle,
for the bill given for them at the time [608] of shipment has not been enforced. The
claim here made is therefore bona fide. If two persons in London agree to buy and
sell goods, and the seller is to send them to Newcastle, it depends altogether on the
contract between them whether they are at the risk of the seller or the buyer during
the transit, and the law does not necessarily put them at the risk of either party. In
stating that it did so, the Lord President was wrong. In Davis v. James (5 Burr.
2680), an action was brought against a carrier for non-delivery of goods. The price
of the goods was to be paid by the plaintiff to the defendant. There was a verdict for
the plaintiff, and a motion for a new trial on the ground that the action should have
been brought by the consignee of the goods; but the answer was that the carrier had
nothing to do with the question in whom the property was vested, but must govern
himself by his own contract with the particular party who had agreed with him and
paid him for the carriage; and so the Court held. That case shows that whether the
property in the goods here was in the consignee or not, the delivery of the goods to
the carrier by the consignor, and the payment by the consignor of the freight, made
the consignor the owner of the goods as between him and the carrier. The rnext case
is that of Moore v. Wilon (1 Term Rep. 659); that was also an action against a
carrier. The plaintiff alleged that the defendant undertook, etc. in consideration of
hire and reward which the plaintiff was to pay. It was proved that Clarke, the con-
signee, had agreed with the plaintiff to pay for the carriage of the goods. The
defendant's counsel contended that that proof did not support the declaration, and
at the trial the plaintiff was nonsuited; but on a motion for [609] a new trial it was
argued that the private agreement between the consignor and consignee did not
affect the agreement with the carrier; and Mr. Justice Buller agreed to that as the
rule, and retracted the opinion he had held at the trial, and the rule was made
absolute. In Dawes v. Peck (8 Term Rep. 330), the leading case on the other side, the
action was by the consignor against the carrier, for not carrying spirit from London
to Warwickshire. That turned on the terms of the transaction, which showed the
consignee to be the owner of the goods from the beginning, and the delivery to the
carrier to have been on his account and on his liability for the payment, he having
written specially for the delivery of the goods to a particular person. Lord Kenyon
there said that the right of property could not be fluctuating but must be certain,
and that the person who had really received the injury must bring the action, and
on the circumstances of that case the consignee was held to be such person. That as
a general proposition .istoo large. But even taking it to be correct, if Robson's
testimony is true he could not sustain an action, for he had no interest in the goods
until their delivery to him at Newcastle. In .Brown v. Hodgson. (2 Camp. 36), the
decision proceeded on the particular words of the bill of lading, "'Shipped by order
827
vi AX& IqNsmY. DUNLOP v. LAMBRT[1838, 1839]

and on account of Hesse and Co. of Hamburgh." Lord Ellenborough says that in
these particular cases the decision must depend on the particular circumstances. In
Joseph v. Knox (3 Camp. 320), the bill of lading ivas, Shipped by the plaintiff (the
consignor) to be delivered to Samuel Davids, at Surinam; and the freight was stated
to be paid in London, and there the consignor was held entitled to maintain the action.
That case goes [610] farther than the present, There the terms of the bill of lading
were held decisive as to the carrier's liability, and Lord Ellenborough said that the
action might be maintained by the consignors who shipped the goods, though it was
actually proved in the course of the cause that the consignees were the owners of the
goods. This is not like an action on the custom of the realm against a carrier; it is
an action on a contract in writing between two parties, and if the contractors are not
the real owners, the real owners must recover over against them. Freemanv. Birch (1
Nev. and Mann. 420) was the case of a common carrier; and Mi-. Baron Parke, in
answer to an observation that the party to whom the goods were consigned, and in
whom the property in them was vested, must bring the action, said that the persons who
employed the carrier must do it. There the laundress who had so employed the carrier
was held entitled to maintain the action.-[Lord Brougham: She would have been
liable over to the owner for the goods.--She would. In this case there was a clear
misdirection, not only on thiB ground that the Lord President improperly assumed
the property to be in the consignee, when that very question, in whom the interest
was vested, ought to have been submitted to the jury; but secondly, because the point
of law on which they were directed was wrongly stated by the Lord President, when
he declared that as a matter of law the property in the goods was in the consignee
from the moment of delivery to the carrier.
The Attorney-General and Mr. Kelly, for the Respondents :-The goods here were
mot at the risk of the vendor, and therefore the vendee, and he alone, had a right to
sue. The authority of Mr. Baron [611] Parke in the case referred to, is clear on this
point He said, "they have a right to sue at whose risk the goods have been carried."
The goods here were carried at the risk of the consignee, and the right to sue existed
from the moment that the cask of spirits was lost, and therefore the subsequent
matter did not affect the right of action. This is not an action for the value of the
spirits, but for the breach of the contract in not carrying the spirits from Leith to
Newcastle. At the time of the loss the right of action was in Robson; the property
was in him; he had ordered the delivery of the goods, he had paid the freight and the
insurance; he might now bring the action, and anything which took place between
him and the vendors subsequent to the loss would be res inter alios acta The first
point made on this appeal is, that the substantial question which is now brought to
the consideration of this House, did not regularly arise on the form of the issue in the
Court below; but the pleadings were amended in that very particular, and a distinct
averment was introduced that the pursuers at the said tim% that is at the time of the
shipment of the goods, had undertaken and were answerable for the safe delivery of
the said goods. The question of risk would otherwise have been a mere question of
law. This is an attempt to construe this issue by incorrect rules; that is, on the sup-
position that it comprehends merely matters of fact. But issues must be composed
of matters of law as well as of fact. The first part of the question is, whether the
Respondents failed to deliver. That is not a mere question of fact, but of law depend-
ing on fact; and so is the second part of the question, whether they were indebted to
the pursuer. If the jury found certain facts, the law would follow. In Bell's Principles
of the law of Scot-[612]-land (3d Edit. p. 642), after alluding to the difficulty of fram-
ing an issue for the trial of a fact not involving in all its circumstances mere matter
of fact, but often matter of law as inseparable from the fact, he gives specimens of
issues of matter of fact and of law. The present issue must be taken with reference
to the averments in the summons, and it will then be clear that it involves matter of
fact and law. Otherwise there could not have been a bill of exceptions, for that can
only be had when the Judge is wrong in matter of law. The question whether the
parties were indebted,, involves the other question, whether they had a right to re-
cover. What are the facts of this case? There was an order in writing by Robson,
who resides in England, to the pursuers, who reside in Scotland, for this puncheon
of spirits. It was a mere general order, without any terms or stipulations. The pur-
828
 DUNLOP V. LAMBERT [1838, 1839] VICLARK&FncalELY.

suers shipped at his expense; what they paid was paid by them on behalf of Robson.
They insured the goods or ought to have insured them against risks by sea. They
debited him with the cost of the insurance; they then sent an invoice in a letter,
which merely conveyed the intimation that the goods had been shipped, and this in-
voice contained a charge for the amount of the insurance and the freight. The con-
signee was therefore throughout the only person who was at any risk. A bill was
afterwards drawn by the pursuers, and immediately accepted by Robson, for the
whole amount. Everything therefore must be taken to have been done by his express
authority. There is, it is true, the express statement that the puncheon was to be
safely delivered in Newcastle before deponent was to consider it as his property;
but the statement in the [613] summons is at variance with that assertion in the evi-
dence, and the argument therefore raised on that point in the evidence is at an end.
The statement throughout refers to the puncheon last delivered, which was sent in
substitution for that which had been lost; that puts an end to the argument that
there was a contract between the parties. But it is even immaterial which of the two
Robson meant to allude to. The question is, what was the contract, and not, what
was it considered to be by one of the parties. It is said on the other side, that the
charge of half per cent. proves that Robson was not to be at the risk of the goods, but
that for that consideration the consignors themselves became liable. The case, how-
ever, must be taken without this evidence, which is not admissible. The evidence
then would amount to this: the order was given that the goods should be shipped,
that Dunlop and Co., by the authority of Robson the consignee, were to effect or ought
to effect an insurance on such goods, that Robson was to pay the freight and did pay
it, and that from the moment that the goods were on beard the vessel the interest of
Dunlop and Co. was at an end. The question was, whose were the goods and in whom
was the property at the time of the losw. It is clear that the insurance was to be
against loss by the perils of the sea, on behalf and at the expense of Robson; so that if
there was no insurance he was the person at whose risk the goods were, so far as the
perils of the sea were concerned. It is absurd to admit that such was the case, and yet
to contend that any risk of any other kind was not his, but the consignors. It is im-
possible to distinguish these two matters-the goods were at the risk of the consignee.
In Dutton v. Solomoson (3 Bos. and Pul 582), Lord Alvanley considered [614] an
argument of the sort now set up, and showed that to admit it would only lead to con-
fusion and error in the application of the law of stoppage in tranrita. There is no
doubt that an action for goods sold and delivered will not lie unless the goods are so
dealt with as to operate as a delivery to the vendee. But there may be an actioil for
goods bargained and sold, but not for goods sold and delivered. In this case no
particular conveyance was named. It was named in Dawson v. Peck (8 Term Rep.
330), and there Lord Kenyon held that the delivery to the carrier operated as a de-
livery to the purchaser. In Brown v. Hodgson (2 Camp. 36), the distinction was taken
between goods sent from one part of England to another, and goods sent from Eng-
land to a foreign country, and it was argued that in the former case a delivery to the
carrier was a delivery to the consignee. No objection was taken to that argument,
which, if well founded, must certainly most strongly affect the decision in this case.
In King v. Meredith (2 Camp. 639), it was clearly laid down that as soon as goods
were delivered to a carrier they were at the risk of the purchaser, though- the carrier
was paid by the vendor; Mr. Justice Lawrence observing, that the mode in which the
carrier was to be paid made no difference. The plaintiff, by paying the carrier, did
not become the insurer of the spirits while they were in the carrier's handa The
question is not who paid the carrier, but at whose risk the goods were to be carried;
and all the cases show that the charges for freight and insurance being paid by the
consignee, he was the person at whore risk the goods were carried. Lord Alvanley
has shown that the question as to the right of stoppage in tranit has nothing to do
with the question of the vesting of the property. [615] The right to stop in transitu
is the only right which remains to the vendors from the moment that the goods are
shipped on board the vessel, and that right is chiefly referrible to the fact that the
condition on which the purchase was made has been unfulfilled. Nothing would be
more dangerous than to say that where the right of action has once accrued, it can be
barred by matters subsequently taking place between the parties. Such a doctrine is
expressly negatived in Dawsonv. Peck (8 Term Rep. 330). In Yatesv. White (Arnold,
829
Vi & rnnMLY. DUNLOP V. LAMBERT [1838, 1839]

85), which occurred in the Court of Common Pleas, in Hilary- Term 1838, there was
an action by the owner of one vessel against the owner of another, for running down
the plaintiff's vessel. The plaintiff had a verdict "upon the trial, but the case going
before an arbitrator, certain special facts were stated for the opinion of the Court.
It was clear that the plaintiff's vessel was run down by the negligence of the defendant's
master, but it appeared that since the damage had accrued the plaintiff had recovered
the whole amount of the damage from the underwriters with, whom he had insured the
vessel. At the time, therefore, when the action was brought he had not sustained any
damage, for the whole lose had been made good to him. Under these circumstances
it was argued that the action was not maintainable, because, being an action for
damages, he could only sustain it in respect of the damage he had actually suffered,
so that if he recovered at all it must be merely a verdict with nominal damages. The
Court of Common Pleas, however, after a very elaborate argument, held the action to
be maintainable for the whole amount of the damage sustained; the Judges declaring
that it was quite foreign to the question, whether by matter sub [6161-sequently oc-
ourring any compensation from any other had been obtained by the party injured:
that though he had not at that time sustained damage, he was still entitled to recover;
and if any other person had paid, under a legal liability as between himself and the
plaintiff, a compensation demandable in consequence of that damage having occurred,
the plaintiff might become a trustee for him, but that that circumstance did not make
any difference as to the parties then before the Court It is clear, upon that authority,
that the legal, not the equitable, rights of the parties are to be looked to. In Abbott
on Shipping (4th Edit. 227; 5th Edit. 216), after stating the form of a bill of lading
which makes the goods deliverable to the consignee or his assignee, it is said, "It is
proper, however, to notice here, that if the person to whom the delivery may be so
order~d is only an agent for the shipper, and has no property in the goods, he cannot
maintain an action in his own name against the master for not delivering them;"
and a case of Waring v. Cox, in 1808, before Lord Ellenborough, is cited. This
passage shows that the right of the consignor to maintain the acti6n can only exist in
an exceptive case; and in truth all the authorities show that it is the universal
practice that the consignee should bring the action. In Gat life v. Bourne, which was
tried the other day in the Court of Common Pleas, a bill of exceptions was tendered
on other points; but though the action there was the same as the present, it never
occurred to the defendant's counsel that any objection arose on the ground that the
consignee was the plaintiff. All the authorities, therefore, go to show that the con-
signee is the proper person to bring the action, unless there is a direct contract to the
contrary. In this case there [617] is no such, contract, and the general rule must be
applied; and then the direction of the Lord President was right, and the judgment
of the Court below must be affirmed.
Sir W. Follett, in reply :-The objections now intended to be argued must be re-
called to the attention of the Rouse. The first is, that on the issue in question the
point of law on which the Judge directed the jury to find for the vendor did not raise at
all.-[Lord Brougham: The liability to the pursuer is the question. Does B. owe A.
a given debt? Would not that raise the question whether A- or C. was the creditor,
without pleading-?]-It might do so in some instances, but not in this particular case.
Other matter besides the direct issue could not arise here, because that would be an
interference with the regulations of the statute. Secondly, it is not denied, on the
other side, that if it is important that the goods should be found to have been at the
risk of the plaintiff, that question ought to have been submitted to the jury, and the
Judge had no right to take the decision of it into his own hands. The third objection
is, that the particular facts of this case, on which the right of the consignor must de-
pend, were not sufficiently found. Had this been done, the evidence would have shown
beyond all doubt that the spirits were at the risk of the pursuers; that Robson was
not to be deemed the owner of the spirits till they had been landed on the quay at
Newcastle. If, therefore, this question had not been kept from the jury, it musb have
been decided in favour of the Appellants. Rights of action are assignable in Scot-
land, though not in England. Let it be admitted that the consignee might maintain
the action, it does not follow that the [618] consignor might not. If there is a doubt
about the facts, the case ought to be submitted to another jury. This is not, like the
case of a shipment being made in the name of a third party, and the owner keeping
 DUNLOP V. LAMBERT [1838, 1839] vi cA & rnnnNLLY.

only a lien on the goods Here they were shipped in th6 name of the consignor, and
this is different from the cases where the owner of the ship had to look for the freight
to the consignee; and the shipowner had no right to make the payment of the freight
a condition precedent to the delivery. The bill of lading says, "the freight being
paid by Dunlop and Co." If it was not so paid, the shipowner could not detain the
goods against the consignee, but would be bound by the bill of lading to look to the
consignor for payment. The case most directly in point with the present is that of
Moorsom. v. Kyzezr (2 Mauls and Selw. 303). That was a case in which a ship was
chartered for a voyage at a certain rate of payment, part on clearing, and part on re-
turning. The bill of lading was to deliver to the charterer or his assignee, he or
they paying freight. It was held that the indorses of the bill of lading for valuable
consideration was not liable to the shipowners, on an implied assumpsit to pay the
freight, arising out of the receipt of the goods under the bill of lading. But the
authority of cases is not required here, for in this form of the bill of lading the owner
of the ship has no remedy whatever against the consignee. The contract here was
made between the shipowner and Dunlop and Co. The freight here was paid. On
the question of fact whether the goods were at the risk of Dunlop and Co'., the state-
ment of Robson ought to be taken as true; but if treated as false, it was a question
which ought to have been [619] submitted to the jury. It is clear that on the facts of
the case here, an action for goods sold and delivered would not lie until after the de-
livery of the goods at Newcastle. Till then, therefore, the purchaser had no vested
title in them: they were the goods of the shipper, were shipped on his account, and
he is entitled to maintain this action for their loss.
(July 16, 1839.) The Lord Chancellor, having stated the nature of the case, said:
-One question raised upon the appeal below was, how far the liability of the de-
fenders to the pursuers was put in issue by the mode in which, these issues were
directed; it being stated that it had been made a matter of defence that the pursuers
were not the right parties, and that that question was not intended to be included in
the trial of the issue; but I th-ink that that point was raised upon the pleadings, and
was left open on the issues. The second issue was in this form :-[His Lordship read
it.] It is clear that if it was not intended to leave that question of the legal liability
open, the issue would not have been stated in those terms. The Court would have
held it sufficient to direct a trial of the first issue, whether the pursuers had shipped
a puncheon of spirits on board the vessel, and whether the defenders had wrongfully
failed to deliver the said puncheon of spirits; but the latter portion of the second
issue necessarily involves the question whether the liability belonged to the pursuers
or to the consignee of the spirits.
At the trial of the cause, the deposition of Robson, the consignee, was adduced:-
[His Lordship read it]-These issues came on for trial before the Lord President,
and his Lordship gave the following direction to the jury:-[His Lordship read the
direction and [620] the verdict.]--The pursuers excepted to that direction, and it was
brought under the consideration of the first division of the Court of Session, where
the Judges by a majority of three to one approved of the summing up of the Lord
President; on which, his direction was affirmed, and a new trial was refused. The
present appeal was then brought, and the question is whether, in point of law, that.
direction of the Lord President is maintainable. On this matter the law of England
and that of Scotland are the same. We have now to determine whether, in a question
between a carrier and the person to whom the carrier is responsible in the event
of the property being lost, the sending an invoice to the consignee, by which it ap-
peared that the property had been insured and the freight paid by the consignor, and
the amount of such freight and insurance charged by the consignor to the consignee,
deprived the consignor of the power of suing, and of an interest or right to recover
the value of the property. It is no doubt true as a general rule, that the delivery by
the consignor to the carrier is a delivery to the consignee, and that the risk is after
such delivery the risk of the consignee. This is so if, without designating the particu-
lar carrier, the consignee directs that the goods shall be sent by the ordinary con-
veyance: the delivery to the ordinary carrier is then a delivery to the consignee.
and the consignee incurs all the risk of the carriage. And it is still more
strongly so if the goods are sent by a carrier specially pointed out by the consignee
himself, for such carrier then becomes his special agent.
831
 ViCLAK&PNqnUY. DUNLOP V. LAMBERT [1838, 1839]
But though, the authorities all establish the general inference I have stated, yet
that general inference is capable of being varied by the circumstances, of any special
arrangement between the parties, or of any [621] particular mode of dealing between
them. If a particular contract be proved between the consignor and the consignee,-
and the circumstance of the payment of the freight and insurance is .not alone a
conclusive evidence of ownership,- as where the party undertaking to consign, under-
takes t deliver at a particular place, the property, till it reaches that place and is
delivered according to the terms of the contract, is at the risk of the consignor. And
again, though in general the following the directions of the consignee, and delivering
the goods to a particular carrier, will relieve the consignor from the risk, he may
make such a special contract, that, though delivering the goods to the carrier specially
intimated by the consignee, the risk may remain with him; and the consignor may,
by a contract with the carrier, make the carrier liable to himself. In an infinite
variety of circumstances , the ordinary rule may turn out not to be that which regu-
lates the liabilities of the parties.- Now, the Lord President laid down the rule to the
jury as if there could be no exception to the operation of it. And that seems to me
to be the first error in the direction. The Lord President stated it as a rule without
an exception, that because the freight and insurance were paid by the consignor,
who charged the consignee with their amount, the risk was therefore necessarily
with the consignee-that there was consequently no right to inquire what was the
particular transaction between the parties-but that, because cf that circumstance
alone, the consignor could not recover. On that direction the jury found a verdict.
for the defendants, on the particular issue which involved the question of the right
to maintain the action.
A reference to the authorities shows that no. such [622] invariable rule exists,
and that the circumstance relied on by the Lord President is not conclusive. His
Lordship directed the jury that that fact was conclusive; so conclusive that it with-
drew from their consideration other circumstances which, in another state of things,
it might be material to consider. But the circumstance is not conclusive: indeed,
to show that it is not, I need only remind your Lordships that if a man in London
purchases goods at Edinburgh or Newcastle, he must pay, in addition to the real price
of the goods, the charge of their conveyance: he either pays it directly to the carrier if
they are carried on his account, or indirectly to the vendor in the shape of an increased
price, if the vendor takes on himself the charge of conveying them. The same ob-
servation may be made with regard to the insurance; so that it comes to the same
thing whether the money paid to the consignor for the goods does or does not include
the cost of the carriage and the insurance, since in the end both are in fact paid by
the consignee. All that is proved by the invoice in this case is, that the consignee
paid the cost price of the goods, and was charged with the freight and insurance.
That circumstance alone is not, therefore, decisive.
The opinion which I am now offering to your Lordships does not rest on general
principles only; it has been the subject of several decided cases. But before refer-
ring to them, I will again call your Lordships attention to the summons, which states
the special contract between the consignor and consignee, by which the former under-
took to deliver the goods at Newcastle. If the fact thus stated had been clearly made
out by the evidence, the consignee would have been proved to have nothing to do with,
the spirits [623] till they got to Newcastle, and were delivered to him there. If such
a contract existed, it ought to have been admitted to proof. It might have turned out
that the existence of such a contract was not made out to the satisfaction of the jury,
but it appears that it was not left to their consideration; the Lord President, on the
evidence that the charges of freight and insurance were to be paid by the consignee,
having withdrawn all other questions from the consideration of the jury, and directed
them to find a verdict for the defendants.
To show that the circumstance ielied on by the Lord President as justifying such
a conclusion is not in itself decisive, I shall now refer to some of the cases on that
subject. The first in point of date is that of Davis and another v. Jame&(5 Burr.
2680). There it was alleged that the vendors had delivered certain goods to a carrier,
who undertook to carry for a certain price, and to deliver within a certain time.
The goods were lost, and the consignor having brought an action to recover the
amount of their value, the argument was raised, as in the present case, that the con-
832
 DUNLOP V. LAMBERT [1838, 1839] VI CLARK & FINNELLY.

signee alone was entitled to maintain such an action, for that the consignors parted
with their property in the goods on delivering them to the carrier. But Lord Mans-
field said (id. ib.), "There is neither law nor conscience in the objection: the vesting
of the property may differ according to the circumstances of cases; but it does not
enter into the present question. This is an action upon- the agreement between the
plaintiffs and the carrier. The plaintiffs were to pay him. The action is properly
brought by the persons who agreed with him, and who were to pay him." [624] The
next case is that of Moore v. Wilson (1 Term Rep. 659). That was assumpsit against
a common carrier, for not safely carrying and delivering goods. The plaintiffs were
the consignors. The declaration was on an undertaking to carry the goods " for a
certain hire and reward to be paid by the plaintiffs." It was proved at the trial that
Clarke, the consignee, had agreed with the plaintiffs to pay the carriage of the goods.
On this it was objected that the evidence did not support the declaration, and the
plaintiffs were non-suited. But on a motion for a new trial, 'Air. Justice Buller said
that he had mistaken the law, "for that, whatever might be the contract between the
vendor and the vendee, the agreement for the carriage was between the carrier and
the vendor;" and the rule for the new trial was made absolute. The case of Daweo,
v. Peck (8 Term Rep. 330) was referred to, for the purpose of supporting the direction
of the Lord President; but in my opinion it does not go so far. That was an action
on the case by the consignor of goods against a common carrier, for not safely carry-
ing according to his undertaking. The goods had been sent conformably to the
orders of the consignee, and by the carrier he had pointed out; and there the plaintiff
was nonsuited, because Lord Kenyon thought that, under the circumstances of that
case, the legal property in the goods was, by the delivery to the carrier, vested in
the consignee. A motion was afterwards made for a new trial; but the Court, think-
ing that there were no special circumstances to take that case out of the general rule.
refused the new trial. Dutton v. Solmonsb (3 Bos. and Pul. 582) was a case of the
same kind. Both these cases, therefore, are inapplicable to the present; for here
[625] there are special circumstances which do vary the general rule. The converse
of the two cases I have just mentioned, was presented to the Court in Sergen-t v.
Morris (3 Barn. and Ald. 277). There the captain of a vessel was to deliver goods for
the consignor, and in his name to the consignee. At the time of the shipment the
consignee had no property in the goods; the consignee had insured the goods, and
had paid the premiums in advance before the arrival of the ship; but it was there
held that the action must be brought in the name of the consignor, because it ap-
peared that in fact the shipment there was made on behalf of the consignor, at his
risk and for his benefit.. The direction of the Lord President here cannot be main-
tained without overruling that case; for he refused to admit the special circum-
stances of this case to be taken into consideration by the jury. In Bro'n v. ludgson
(2 Camp. 36), Lord Ellenborough held that goods described in a bill of lading as
'shipped by order and on account of the consignee," must be taken to be goods the
property in which vestbd in the consignee from the time at which they were plit on
board the ship; and that consequently the consignor could not maintain au action
against the shipowner for non-delivery. The case of King v. Meredith (id. 639) seems
at first to be opposed to that ruling; that was an action for the value of goods con-
signed to the defendant. But there no special contract appeared; and though the
carrier was in fact paid by the consignors, that fact alone was not held sufficient to
destroy the effect of the general rule, that the moment the property was delivered to
the carrier, it vested in the consignee. Mr. Justice Lawrence observing that the
plaintiffs, by pay-[626]-ing the carrier, did not become insurers of the spirits while
in his hands. The case of Joseph v. Knox (3 Camp. 320), is a very strong one on this
subject, and shows most distinctly that no general inference of law will arise where
there are special circumstances showing a particular contract between the parties.
There the plaintiffs, who carried on business in London, werethe agents of the con-
signors, who were merchants at Amsterdam; and the goods were shipped by the
plaintiffs at London, to be carried to Surinam, and there delivered to one Levy
Davids. The bill of lading stated that the goods were shipped by the plaintiffs, that
they were to be delivered to Davids at Surinam, and that the freight was paid in
London. It was proved that the plaintiffs had themselves sworn, in an answer to a
bill in equity, that they believed the goods to be the goods of Davids. It, was objected
H.L. vu. 833 27
VI CLAR & FINN Y. HORNE V. MACKENZIE [1839]

that the plaintiffs could not maintain the action, because they had no interest. in the
goods; but Lord Ellenborough held that this was the case of a contract established
by the bill of lading, and that the plaintiffs therefore, from whom the consideration
moved, and to whom the promise was made, might maintain the action.
These authorities, therefore, establish in my mind the propositions which are
necessary to be adopted, in order to overrule this direction of the Lord President. I
am of opinion, that although, generally speaking, where there is a delivery to a
carrier to deliver to a consignee, he is the proper person to bring the action against
the carrier should the goods be lost; yet that if the consignor made a special contract
with the carrier, and the carrier agreed to take the goods from [627] him, and to
deliver them to any particular person at any particular place, the special contract
supersedes the necessity of showing the ownership in the goods; and that, by the
authority of the cases of Davis v. James (5 Burr. 2680), and Joseph v. Knox (3 Camp.
320), the consignor. the person making the contract with the carrier, may maintain
the action, though the goods may be the goods of the consignee,
But further, the authorities seem to me to establish that the consignor is entitled
to maintain the action where there is a contract to deliver at a particular place, pro-
vided the risk appears in fact to be still on him. The circumstance of paying the
freight or the insurance, though a circumstance to be taken into consideration, is not
in itself conclusive on the question of property, nor is it conclusive on the right to sue.
The Lord President held it to be conclusive on these points, and therefore shut out
from the jury the consideration of other facts in the case. In so doing, I think that
his direction was erroneous. I think that there are two objections to the mode in
which he left the case to the jury: first, that he withdrew from their consideration
-the question, whether, in fact, the goods had been delivered to the carrier on the risk
of th consignors or the consignee; and, secondly, that he directed the jury to find
a verdict without previously determining the question, whether there was a special
contract between the consignors and the consignee, which might have enabled the
pursuers to recover in the action. It is not necessary for your Lordships to inquire
in what form that question ought to be left to the jury, the question on the bill of ex-
ceptions being generally whether the direction of the Judge was in point of law
correct? I am of opinion [628] that it was not correct, and that the interlocutor dis-
allowing the bill of exceptions ought therefore to be reversed.
Cause remitted, with directions to allow the bill of exceptions.

APPEAL
FROM THE COURT OF SESSION.

ARCHIBALD HORNE and COLIN MACKENZIE,-Appellants; the Honourable

Mrs. MARIA HAY MACKENZIE and Captain HUGH MUNRO,-Respondents
[March 14, 15; Aug. 26, 1839].
[Mews' Dig. vii. 111. Distinguished on point as to meaning of " river" and "sea "'
in Reece v. Miller, 1882, 8 Q.B.D. 631.]
A. a surveyor, made a survey or report, which he furnished to his employers:
being afterwards called as a witness, he produced a printed copy of this report,
on the margin of which he had, two days before, to assist him in giving his
explanations as a witness, made a few jottings. The report had been made
up from his original notes, of which it was in substance though not in words,
a.transcript. Held, that he might look at this printed copy of the report, to
refresh his memory.
Upon an issue whether certain defendants had wrongfully fished for salmon by
means of stake-nets, placed in situations prohibited by statute, where the
question was what was to be considered "'river," and what "sea," a direction
that "the thing to be looked to is the fact of the absence or the prevalence of
the fresh water, though strongly impregnated with salt," is erroneous.
834
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Citations:

Bluebook 21st ed.

William Tetley, Who May Claim or Sue for Cargo Loss or Damage - Part II, 17 J. MAR.
L. & COM. 407 (1986).

ALWD 6th ed.

Tetley, W. ., Who may claim or sue for cargo loss or damage - part ii, 17(3) J. Mar.
L. & Com. 407 (1986).

APA 7th ed.

Tetley, W. (1986). Who may claim or sue for cargo loss or damage part ii. Journal of
Maritime Law and Commerce, 17(3), 407-426.

Chicago 17th ed.

William Tetley, "Who May Claim or Sue for Cargo Loss or Damage - Part II," Journal of
Maritime Law and Commerce 17, no. 3 (July 1986): 407-426

McGill Guide 9th ed.

William Tetley, "Who May Claim or Sue for Cargo Loss or Damage - Part II" (1986) 17:3
J Mar L & Com 407.

AGLC 4th ed.

William Tetley, 'Who May Claim or Sue for Cargo Loss or Damage - Part II' (1986)
17(3) Journal of Maritime Law and Commerce 407.

MLA 8th ed.

Tetley, William. "Who May Claim or Sue for Cargo Loss or Damage - Part II." Journal
of Maritime Law and Commerce, vol. 17, no. 3, July 1986, p. 407-426. HeinOnline.

OSCOLA 4th ed.

William Tetley, 'Who May Claim or Sue for Cargo Loss or Damage - Part II' (1986) 17 J
Mar L & Com 407

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Journal of Maritime Law and Commerce, Vol. 17, No. 3, July, 1986

Who May Claim or Sue for Cargo Loss or

Damage?

WILLIAM TETLEY*

PART II

D. SUITS IN CONTRACT: FRANCE

1. Introduction
Who may sue is as troubling a question in France as it is in the
common law jurisdictions.
Early on, the Code de Commerce' 20 gave broad, sweeping, general
rights to the parties "interested" in a shipment, i.e., the shipper, the
carrier, the consignee and the insurers. This is similar to the Ameri-
can tradition.
Art. 283 read:
The bill of lading drawn up in the above prescribed form constitutes
proof amongst the parties interested in the shipment, and between them
and the insurers.
Art. 283 was not deemed sufficiently clear and was repealed and
121
replaced by maritime law statutes governing risk during carriage
and on delivery of goods in the case of order and bearer bills of
lading. t22 The civil law principles of stipulation for another, 123 assign-
ment (or cession), 24 and conventional subrogation 25 also provide

*Editor's Note: This is the second and final instalment of Professor Tetley's article. The first,
which concerned suits in contract in England, the Commonwealth countries and the United
States, appeared at 17 J.Mar.L. & Com. 153 (1986).
120The Code de Commerce was adopted and promulgated in 1807.
121Arts. 32, 36 and 40 of Law No. 69-8 of January 3, 1969.
122Decree No. 66-1078 of December 31, 1966, at art. 49.
123Art. 1121 c.c. (France); Art. 1029 c.c. (Quebec); art. 1978 c.c. (Louisiana).
124Art. 1689 c.c. (France); Art. 1570 c.c. (Quebec); art. 2642 c.c. (Louisiana).
125Art. 1250 (1) c.c. (France); Art. 1155 (1) c.c. (Quebec); art. 1827 c.c. (Louisiana).

407
408 JournalofMaritime Law and Commerce Vol. 17, No. 3

useful and relatively clear rules permitting third parties to take suit
under certain circumstances.

2. Negotiability of bills of lading

France has much the same types of bills of lading as the United
Kingdom: 126
a) The non-negotiable receipt fulfills the function described in Art.
6 of the Hague/Visby Rules, which France has adopted for interna-
tional trade.
b) The named bill of lading (nominate bill of lading) is made to a
specified person but not to order. The named bill cannot be trans-
7
ferred except by an act of assignment (cession).12
c) The "order" bill of lading may be transferred by endorsement. 128
d) The bearer bill of lading may be transferred by mere delivery.
The bill will be to bearer in the following cases: 129 (i) if the bill
explicitly so declares; (ii) if no mention of a consignee is made; (iii) if
it is an order bill of lading but does not mention to whose order it is;
(iv) if it is an order bill of lading but is endorsed in blank by the person
named in the order bill.130

3. The shipper may sue

a) Contractuallink and ownership or risk
Because the shipper is an original party to the contract of carriage,
he may sue on the contract itself. However, unless he is the owner of
the goods or bears the risk, he will be unable to recover substantial
damages, since he has not suffered loss by the breach of contract.
Thus, two factors must come into play in an action by the shipper: he
must prove i) that he has a contractual link with the carrier, and ii)
that he is the owner or is at risk in respect of the loss or damage to the
goods. 13'

126See Part I of this article, 17 J.Mar.L. & Com. 153, 158-160 (1986).
127Art. 1690 (France); Rodiere, Trait,6G~n~ralAffretements et Transports,Tome 2, at paras.
482 and 695 (1968); Cour d'Appel de Rouen, May 13, 1982, DMF 1983, 212, 219n.
12 Cour de Cassation, November 24, 1975, DMF 1976, 403; Cour d'Appel d'Aix, June 2,
1978,29 DMF 1979, 527.
1 Rodi~re, supra note 127, at para. 482.
13 0 Cour de Cassation, February 22, 1983, 660, 663n.; Cour d'Appel d'Aix, March 6, 1980,
DMF 1980, 652, 656n.; Tribunal de Commerce de Paris, October 24, 1975, DMF 1976, 550.
131Cour de Cassation of Belgium, September 9, 1966, [1966] ETL 1966, 898, where, although
the bill of lading had been transferred, the shipper was nevertheless permitted to take suit, since
the goods had been carried at the shipper's risk and the bill of lading holder, instead of suing the
July 1986 Suits For Cargo Loss or Damage 409
The contractual link can be established by the presence of the
32
shipper's name (or that of his agent) on the bill of lading:
Ownership and risk are dealt with at Arts. 31 to 41 of Law No. 69-8
of January 3, 1969. By Art. 31 the parties are free to allocate risk in
a manner other than as specified in the subsequent articles of the
Law.
b) Sale upon arrival
Thus, in a "sale upon arrival" ("vented l'arrivge")the risk is on
the vendor in virtue of Art. 36 of the Law of January 3, 1969 and the
vendor may take suit against the carrier, provided he has kept the
original bills of lading, which may be:
(i) bearer bills of lading133;
(ii) order bills to the shipper's order, endorsed in blank134 ;
(iii) named bills of lading, with the shipper named as consignee.
In a "sale upon a designated ship" ("vente sur navire d~signe"),
the vendor ceases to bear the risk if the loss occurs after he has
notified the purchaser of the name of the vessel upon which the goods
have been loaded. (Art. 37.)
In a "sale upon loading" ("vente d l'embarquement"), the vendor
notifies the purchaser of the name of the carrier; he nevertheless
continues to bear the risks throughout. (Art. 38.)
c) CIF (CAF) 35 Sale
The shipper in a CIF sale cannot usually recover substantial
damages if the goods are lost or damaged during carriage because the
risk is normally assumed by the buyer in virtue of Art. 40 of the Law
of January 3, 1969. Nevertheless, if the shipper retains the order bills
of lading endorsed in blank, he may take suit and recover damages on
the contract of carriage. 136 Otherwise, in order to sue, the shipper

carrier, had preferred to obtain compensation from the shipper. See also Cour d'Appel de
Rouen, October 4, 1957, DMF 1958, 32, where the carrier was estopped from questioning the
shipper's right to sue, even though the property in the goods had passed from the shipper to the
consignee at the time of the loss; the court held that the shipper could sue on the basis of the
contract of carriage, since the shipper had agreed to bear the loss of the goods. See, however,
Cour de Cassation of Belgium, May 14, 1981, [1981/82] JPA 415.
132 Art. 33, Decree No. 66-1078 of December 31, 1966.
33
1 See types of bearer bills of lading, supra.
134 Cour d'Appel de Paris, April 14, 1982, DMF 1983, 33, 35n.
131Cofit, assurance,fret. In Italian the "A" stands for "Assicurazioni" and in German and
the Scandinavian languages "Assekurans".
136 Cour d'Appel d'Aix-en-Provence, June 10, 1983, DMF 1985, 100, 103-104n.; Cour
d'Appel de Paris, April 14, 1982, DMF 1983, 33.
410 Journalof Maritime Law and Commerce Vol. 17, No. 3

must have benefitted from an assignment of the rights of the con-

37
signee. 1
d) Goods refused by the consignee
The shipper who holds a duplicate of the original bill of lading may
sue the carrier for damage to the goods during carriage, if the
consignee has refused to take delivery of the goods. 138 To defeat the
shipper's action, the carrier must show that delivery was made to the
consignee, by producing the original bill of lading surrendered by the
39
consignee to the carrier upon delivery.

4. The consignee may sue

a) Consignee-contractuallink
The legal basis for the consignee's right to sue the carrier directly
on the contract of carriage is not a statute similar to the Bills of
Lading Act 1855 but rather the civil law principle of stipulation for
another.14o The shipper, in contracting with the carrier, stipulates in
favour of the consignee. 141 Recently the courts have treated the
consignee as an integral party to the contract of carriage, a contract
142
which in its essence is tri-partite.
The owner of the goods cannot per se sue on the contract of
carriage. In the civil law, the carrier is deemed to be the debtor of an
obligation and the creditor of that obligation is determined indepen-
dently of any consideration of the question who is the owner of the
goods. 143 Yet it often occurs that the consignee, as holder of the bill
of lading, is also the owner of the goods. Because the consignee often

137Id., DMF 1985 at 104.

138Cour d'Appel de Paris, January 12, 1984, DMF 1984, 413, 423n. See also Surailco
(Transmarine Corp. v. Levitt), 25 F. 2d 275 at 278, 1928 AMC 682 at 686 (2d Cir. 1928); Astri
(Armco Intl. v. Reden A/B Disa), 1945 AMC 1064 at 1070 (2d Cir. 1945).
139Cour d'Appel de Paris, January 12, 1984, DMF 1984, 413, 423.
140Art. 1121 c.c. (France); art. 1029 c.c. (Qudbec); art. 1978 c.c. (Louisiana).
14,Rodi~re, supra note 127, Tome 2, paras. 407-408.
142The theory of a tri-partite contract between the shipper, the carier and the consignee
probably evolved from art. 283 of the Code de Commerce, though this article was later repealed
and replaced by Law No. 69-8 of January 3, 1%9 and Decree No. 66-1078 of December 31, 1966.
The courts today seem to take a stricter view of who may sue than the tri-partite theory
propounds. See Rodire, supra note 127, Tome 2, para. 408:
Le contract de transport maritime implique, par sa nature, le droit pour le destinataire de se
prdvaloir de la convention intervenue entre transporteur maritime et chargeur aux fins de
d~placement de la marchandise.
(The contract of maritime carriage implies, by its nature, the right of the consignee to take
full advantage of the agreement entered into between the carrier and shipper in respect to the
carriage of the goods.)
143Roditre, Droit Maritime, Precis Dalloz, para. 359 (9th ed. 1982).
July 1986 Suits For Cargo Loss or Damage
wears two hats, the rights arising from the contract of carriage are
confused with those arising from the contract of sale, especially when
documents of title are used.
b) Consignee-ownership or risk
Once the consignee's right to sue on the contract of carriage is
established, his right to recover damages for the loss of the goods
must be shown. Since it is he who is very often at risk by Arts. 31-41
of the Law of January 3, 1969, the consignee can prove that he
incurred the loss. Furthermore, as holder of the bill of lading, the
consignee can prove that the goods lost or damaged were his. Art. 49
of the Decree of December 31, 1966 states that the consignee (le
destinataire) is the person named on a nominate bill of lading, or
presenting a bearer bill of lading, or the last endorsee of an order bill
of lading. 144
c) FOB Sale ("vente au depart")
The consignee is specifically deemed to be the party at risk in an
FOB 145 contract ("vente au ddpart"-saleupon departure) in virtue
of Art. 32 of the Law of January 3, 1969.14
d) CIF (CAF) Sale
By Art. 40 of the same Law of January 3, 1969147 the risk is put on
the buyer in a CIF contract.' 48 Thus, the shipper named as consignee
in the bill of lading in a CIF sale may take suit, without, however,
having to bear the risk.' 49 Similarly the shipper/holder of a bill
endorsed in blank in a CIF contract may take suit against the carrier
even though he did not bear the risk.150 This is because an order bill
of lading endorsed in blank is a bearer bill of lading,151 and its holder,
described as "destinataire" in Art. 49 of the Decree of December 31,
1966, can accordingly take suit against the carrier.

' Cour de Cassation, November 8, 1983, [1984] ETL 208.

145FOB (free on board) is very specifically defined in "Incoterms" (International Chamber
of Commerce Terms), and in particular risk is said to be transferred "to the buyer when the
goods pass the ship's rail."
146 "The sale upon departure puts the thing sold at the risk and in the care of the buyer.

Cour d'Appel de ParisJuly 1, 1977, DMF 1978, 343. See also Rechtbank Van Koophandel te
Antwerpen, September 5, 1977, [1978] ETL 395.
147,... (Lies risques de transportsont d sa [the buyer's] charge."
'49 CIF (cost, insurance, freight) is also defined in "Incoterms"; the risk is imposed on the
buyer "when the goods pass the ship's rail at the port of shipment."
19 Cour d'Appel d'Aix-en-Provence, June 10, 1983, DMF 1985, 100 at 104.
150Id.
151Courd'Appel d'Aix, March 6, 1980, DMF 1980, 652 at 656; Cour de Cassation, February
22, 1983, DMF 1983, 660 at 661; Tribunal de Commerce de Paris, October 24, 1975, DMF 1976,
550 at 552.
412 Journalof MaritimeLaw and Commerce Vol. 17. No. 3

e) Nominate bill of lading

The consignee ("destinataire")named in a nominate bill of lad-
ing 52 which is not negotiable, may take suit, provided the bill of
lading has been delivered to him. Yet the person named in such a bill
has at times been treated by the courts as being merely the
destinataire "apparent". The courts have been ready to deem
another party, whose name does not appear on the bill, to be the
destinataire "'rel"and have given the latter the right to sue on the
bill of lading contract.153 The courts have required that there be some
indication on the bill of lading that the party named therein is acting
as agent.15
f) Bearer bill of lading
The holder ("porteur")of a bearer 155a
bill of lading155 may take suit for
damage occurring during carriage.

5. Insurers
Insurers may take suit but must be properly subrogated to the
rights of their assured 56 who, for his part, must be the party who
suffered the loss and who had a valid claim against the carrier.157
The underwriter subrogated to the rights of the shipper/seller in one
particular case could not take suit because the shipper did not have an
interest. The shipper/seller would have had to be either a holder of the
order bill of lading endorsed in blank or the assignee of the consignee
named in the bill of lading.158
Law No. 67-522 of July 3, 1967, dealing with marine insurance,
states at Art. 33 that the insurer who indemnifies the assured
acquires, upon payment, all the rights of the assured.

152Decree No. 66-1078 of December 31, 1966, art. 49.

153Cour d'Appel de Rouen, February 5, 1976, DMF 1976, 344, where a person who was not
named on a nominate bill was nevertheless permitted to sue the carrier in contract because he
was able to show that the party named was in fact acting as his agent. See Sauvage, La
conditionjuridique de l'expditeurou du destinatairenon mentionngs au connaissement, DMF
1961, 193.
54 Cour de Cassation, June 23, 1958, DMF 1958, 657; Cour de Cassation, March 4, 1963,
DMF 1963, 336 with note by Doyen Rodikre at 435.
'" Decree No. 66-1078 of December 31, 1966, art. 49.
'"'Courde Cassation, February 22, 1983, DMF 1983, 660 at 661-662; Cour d'Appel d'Aix,
March 6, 1980, DMF 1980, 652 at 656.
156Cour d'Appel de Paris, June 10, 1982, DMF 1983, 226. See Tetley, Maritime Liens and
Claims, Ch. 27 Assignment, Transfer and Subrogation (1985).
157Cour d'Appel de Montpellier, July 26, 1984, DMF 1985, 40, see 44n.
158Cour d'Appel d'Aix-en-Provence, June 10, 1983, DMF 1985, 100, see 104n.
July 1986 Suits For Cargo Loss or Damage 413
6. Assignment or cession
There has been considerable dispute in France as to whether the
insurer, after paying his assured, may take suit in virtue of the
principle of subrogation, or whethei his right to sue is based on
assignment (cession).1 59 For certain persons,
6
it was a question of
assignment' 60 and for others, subrogation.' '
Assignment 62 is found at Art. 1689 c.c. et seq. (France) 63 and of
course the transferor may only cede or assign whatever rights he
has. 164Assignment may benefit not only an underwriter but any other
party with a valid interest.
Assignment is useful in the case of a true consignee (destinataire
riel) whose name does not appear on the bill of lading, but who may
take suit, provided he has been assigned65 the rights of the person
named as consignee in the bill of lading. 1

7. Notify Party
The "notify party" named in a bill of lading in France and
elsewhere should have no particular status to take suit if the integrity
of the bill of lading as a commercial document is to be maintained.
Nevertheless, the Cour d'Appel de Rouen' 66 declared in one case that
naming the "notify party" in a nominate bill of lading was an
indication that the notify party was the real consignee (destinataire
rgel) and therefore entitled to take suit. The reasoning in this case has
been questioned on the facts. 67 Nevertheless a notify party who is
the "destinataire r6el" should be allowed to take suit, as should his
subrogated underwriters, since the presence of the name of the notify
party on the bill of lading itself and the identity of the named
consignee may be sufficient to indicate that the named consignee is
really acting as the agent of the notify party.16s
59
1 Cour de Cassation,January 10, 1972, DMF 1972, 275, see 277-278n.
160 Cour d'Appel de Rouen, May 25, 1951, DMF 1951, 461; Cour d'Appel d'Alger, Dec. 10,
1959, DMF 1960, 725.
161Cour d'Appel de Paris,October 19, 1959, DMF 1961, 85, 87-88n.; P. Lureau, DMF 1964,
274 at 276; Lureau, DMF 1972, 275 at 277-278.
162See Tetley, supra note 156.
I'l 1570 c.c. et seq. (Quebec); 2642 c.c. et seq. (Louisiana).
6 Cour de Cassation, February 3, 1964, DMF 1964, 274, with note by Lureau at 276.
165Tribunal de Commerce de Marseille, April 18, 1975, DMF 1975, 616.
66May 13, 1982, DMF 1983, 212.
167See note R. Achard, DMF 1983, 212 at 219.
16 Cour d'Appel de Montpellier, July 26, 1984 DMF, 1985, 40. While the practice of finding
the named consignee (destinataireapparent)to be the agent of the real consignee (destinataire
414 Journalof Maritime Law and Commerce Vol. 17, No. 3

E. SUIT BY THE CONTRACT TERMS

On occasion, the bill of lading will define the parties to the contract
of carriage. For example, paras. 1 and 17 of the Conlinebill read: 69

1. Definition
Wherever the term 'Merchant' is used in this Bill of Lading, it shall be
deemed to include the Shipper, the Receiver, the Consignee, the
Holder of the Bill of Lading and the Owner of the cargo. 170

17. Identity of the Carrier

The Contract evidenced by this bill of lading is between the Merchant
and the Owner of the vessel named herein (or substitute)...
When the bill of lading does define the parties to the contract, then
it would seem that the parties named as "Merchant", i.e., shipper,
owner of the goods, receiver and consignee, would each be able to
take suit on the contract of carriage if he sustained the damage and
loss.
The purpose of the "Definition of Merchant" clause and the
"Identity of Carrier" clause is to permit the carrier to claim freight
and demurrage from and to maintain a possessory lien against any
person having an interest in the goods.'71 The clauses also enable the
carrier to invoke the Himalaya172 and circular identity clauses 7 3
against all of these persons on behalf of the stevedore and terminal
operator.

r~e) prevails not only in the case of a nominate bill of lading but also in the case of an order bill
(as held by the Cour d'Appel de Montpellier), it is perhaps lessjustifiable in the case of the order
bill, since such a bill is negotiated in secured transactions and only the last endorsee should be
allowed to sue on it. See Cour d'Appel de Rouen, May 13, 1982, DMF 1983, 212, and especially
the note by R. Achard at 219. See also F. Sauvage, La conditionjuridiquede l'expediteurou du
destinatairenon mentionn~s au connaissement, DMF 1961, 195.
169Approved by the Baltic & International Maritime Conference in 1949 and amended
January 1, 1950, August 1, 1952, January 1, 1973, July 1, 1974, August 1, 1976, and January 1,
1978. (All the earlier bill of lading forms contained identical definitions of "Merchant." The
"Identity of the Carrier" clauses were included in 1952. The "Conlinebill" is available in
English, French, German and Spanish. Most bills of lading contain such clauses in words to
much the same effect. Some definitions include the freight forwarder in the term 'Merchant'.
170 See a similar definition of "Merchant" in The Elbe Maru, [1978] 1 Lloyd's Rep. 206 at
210, Sidney Cooke v. Hapag-Lloyd, [1980] 2 N.S.W.L.R 587 at 591, and BHP v. Hapag-Lloyd
Aktiengesellschaft, [1980] 2 N.S.W.L.R 572 at 575. See also The Venezuela, [1980] 1 Lloyd's
Rep. 393 at 396, for definitions of "Merchant" and "Carrier" and the effect given to them by
Sheen J.
71Tetley, supra note 156, Ch. 19, Carrier'sLien on Cargofor Freight and Hire.
172See Tetley, Marine Cargo Claims, Ch. 33, The Himalaya Clause-Heresy or Genius?
173 See the decisions cited supra note 170, where the circular indemnity clause was upheld.
July 1986 Suits For Cargo Loss or Damage 415
Does the definition of "Merchant" permit the consignee or the
owner of the goods to sue on the contract? The answer must be
"yes", because, if the Himalaya clause may validly confer a negative
benefitl 74 in favour of a third party (i.e., a stevedore) 75 who is not
otherwise a party to the contract of carriage, this should afortioribe
the effect of a clause that confers a positive benefit in favour of the
consignee or shipper or cargo owner for acts within the contract.
Similarly, if the circular indemnity clause is valid, so must the
carrier's own definition of "Merchant" in the contract provide a legal
basis for permitting the consignee or owner of the goods to sue on the
contract of carriage for damage to goods.
Furthermore, the carrier issuing or signing the bill of lading will be
estopped from arguing that the party whom the carrier himself has
described in the bill of lading as being the "Merchant", may not sue.
Estoppel requires that (i) a statement be made or action be taken, (ii)
which another person relies on, (iii) to his detriment. The consignee
or owner of the goods could very probably prove that he had relied to
his detriment on the very broad definition of "Merchant" in the bill
of lading.

F. SUIT IN TORT OR DELICT

1. Introduction

Cargo claimants may sue in tort (delict) and prudent cargo attor-
neys usually declare in their pleadings that their suit is in both
contract and tort. The suit in tort or delict is useful for waybill
consignees and even consignees of bills of lading who do not have
what is deemed a proper contractual link with the carrier. 176 Suit in
tort or delict is also useful in cases where the claimant has mistakenly
sued only the charterer and not the shipowner, or vice versa, and the
time limit for suit in contract against the proper carrier has expired.
Classic English common law theory is that only the owner of the
goods may sue in tort or delict, but some recent decisions have also
permitted the person under risk or with an interest to sue. The civil
law has no such problem but has another just as difficult
delict/contract conundrum-the problem of cumul.

,74 See Tetley, 20 Les Cahiers du Droit (Laval University) 449 (1979).
175Id.
17 6 For example, where the property did not pass because of lack of endorsement or
assignment of the bill of lading.
416 Journalof MaritimeLaw and Commerce Vol. 17, No. 3

2. Suit in tort: under the common law in England and the

Commonwealth
a) Who owns the goods?
It has been held in England and followed in Commonwealth
countries that only the owner of the goods may sue.
The principle was set out by Roskill J. in The WearBreeze (Margarine
Union G.m.b.H. v. Cambay Prince S.S. Co.) 177 as follows:
[W]hatever the precise nature of the plaintiff's cause of action and whether
it was in what nowadays would be called contract or what nowadays
would be called tort, it was an essential prerequisite of the plaintiff's right
to succeed that he could show that he was at the material time the owner
of the goods, of the loss of or damage to which he complained, and, if the
plaintiff could not show that, then, in the absence of what was sometimes
called a special contract, his claim failed.
The crucial question therefore becomes: When does property pass
from the seller to the buyer? The answer depends on the rules
governing FOB and CIF contracts. It is not within the scope of this
article to deal with FOB and CIF contract terms in detail, but a
number of general rules emerge from the law of sale 178 in common law
jurisdictions:
(i) The dominant rule has been that property in the goods passes when
the parties intend it to pass. 179
(ii) If the intention of the parties is not clear, the property in specific
goods in a deliverable state passes to the buyer at the moment the
contract is made. 80
(iii) In the sale of unascertained goods, property may not pass until the
goods have become ascertained under the contract.'81 However, once
there is an unconditional appropriation of the goods to the contract,
agreed to by both parties, the property in the goods passes. 82

'7[1969] 1 Q.B. 219 at 241, [1967] 2 Lloyd's Rep. 315 at 329.

178 Sale of Goods Act 1979, (1979) U.K. c. 54, sect. 16 et seq.; the Ontario Sale of Goods Act,
R.S.O. 1980 c. 462, sect. 17 et seq. See also International Chamber of Commerce, International
Rules for the Interpretationof Trade Terms (Paris, No. 350, 1980).
179 Sale of Goods Act 1979 at sect. 17(1).
180 Id. at sect. 18, Rule 1. If the specific goods are not in a deliverable state, Rule 2 applies.
However, very little evidence is needed to give rise to the inference that property is to pass on
delivery or payment. See Diplock-J. in R.V. Ward v. Bignall, [1967) 1 Q.B. 534 at 545, and 4
Halsbury's Laws of England, para. 720 (4th ed.). But see Bridge & Buckley, Sales and Sales
Financingin Canada, 291-292 (1981).
Is' Id., sect. 16.
'-Bridge & Buckley, supra note 180, point out at 299: "The mere ascertainment by the
seller of the goods he expects to use in the performance of the contract will not constitute an
unconditional appropriation."
July I 9N Suits For Cargo Loss or Damage 417
(iv) What constitutes unconditional appropriation in an FOB contract
was considered in Carlos Federspiel v. Charles Twigg,18 3 where
Pearson, J. held that the property in the goods under an FOB
contract normally passes to the buyer when the goods pass the
nominated ship's rail. (It is upon this event as well that the risk in
the goods passes to the FOB buyer). Such goods, however, must
have been appropriated to the contract,184 which means that "the
parties must have had, or be reasonably supposed to have had, an
intention to attach the contract irrevocably to those goods, so that
those goods and no others are the subject of the sale and become
the property of the buyer."

The appropriating act is usually the last act to be performed by the

seller.
b) The Elafi and The Irene's Success
What constitutes unconditional appropriation in CIF contracts? At
what point does the consignee have the right to sue in tort in such
transactions? These questions have been the subject of two very
interesting and contradictory judgments-The Elafi'8 5 and The Irene's
Success.8 6 The contradiction is perhaps not so surprising, consider-
ing that Mustill J., who decided the first case, and Lloyd J., who
decided the second, had acted as counsel opposing each other before
Roskill J. in The Wear Breeze.18 7
c) The owner may sue-The Elafi
In The Elafi, following The Wear Breeze, Mustill J. noted generally:

Under English law, the fact that a person has taken delivery from a
carrier of damaged goods, in respect of which he has paid the purchase
price does not in itself entitle him to pursue an action against the carrier
in respect of the damage. Something more must be shown.

Mustill J. believed he was bound by The Wear Breeze and conse-

quently that the only person who may sue in tort for cargo damage:

... is a person who was the owner of the goods, or entitled to

possession of them at the time when the tort was committed: that is to
say, in the case of a claim in negligence, at the time when the goods
suffered damage.1 88

183 [1957] 1 Lloyd's Rep. 240 at 247. See the Sale of Goods Act 1979 at sect. 18, Rule 5(2).
184 Id. at 255.
18s [1981] 2 Lloyd's Rep. 679 at 682.
s6 (Schiffart-Und Kohlen G.m.b.H. v. Chelsea Maritime Ltd.), [1981] 2 Lloyd's Rep. 635.
8
1 7 Supra note 177.
"88 [1981] 2 Lloyd's Rep. at 682.
418 Journalof MaritimeLaw and Commerce Vol. 17, No. 3

In The Elafi the cargo had been shipped to various claimants under
identical bills of lading and the shipments on board were indistin-
guishable. In consequence, ownership did not pass until the cargo
was ascertained, as required by Sect. 16 of the U.K. Sale of Goods
Act 1979. This would normally have been at discharge, when the
various lots destined for individual consignees were separated. All
the cargo except claimant's cargo was discharged at Hamburg, and
when the ship arrived at Karlshamms, water entered the ship due to
the carrier's fault and the cargo was damaged. On board was
claimant's cargo, carried under six bills of lading, and additional
over-shipped cargo purchased under contract by claimant, for which
no bills of lading had been issued.
Mustill J. held that it was not necessary to appropriate this cargo to
individual bill of lading shipments, addressed even by different sellers
to the same consignee. Thus claimant became owner at Hamburg and
could sue in tort for the fault committed later at Karlshamms. In this
way Mustill J. followed the holding in The Wear Breeze that only the
owner of the goods could sue.
d) Person under risk may sue-The Irene's Success
A second theory is that the person under risk may sue in tort. This
is similar to the civil law principle that the person who has suffered
damage may sue in delict.
In The Irene's Success Lloyd J. reviewed the previous case law and
held that claimants, who were CIF buyers of a cargo of coal, but who
could not sue in contract because they were never holders of the bill
of lading, could nevertheless sue in tort although they did not own the
coal when the damage was done.
189
Lloyd J. relied on Anns v. Merton London Borough Council,
where Lord Wilberforce had said:

First one has to ask whether, as between the alleged wrongdoer and the
person who has suffered damage there is a sufficient relationship of
proximity or neighbourhood such that, in the reasonable contemplation
of the former, carelessness on his part may be likely to cause damage
to the latter-in which case a prima facie duty of care arises. Secondly,
if the first question is answered affirmatively, it is necessary to consider
whether there are any considerations which ought to negative, or to
reduce or limit the scope of the duty of the class of person to whom it
is owed or the damages to which a breach of it may give rise ...
Lloyd J. then concluded:19o

19 [1978] A.C. 728 at 751-752.

190[1981] 2 Lloyd's Rep. 635 at 636-637.
July 1986 Suits For Cargo Loss or Damage 419
There is a sufficient relationship of proximity between the plaintiffs as
c.i.f. buyers and the defendants as ocean carriers, such that defendants
ought reasonably to have contemplated that carelessness on their part
in carrying the goods would be likely to cause damage to plaintiffs.

Nor did he see any argument of policy against such a conclusion,

thus complying with Lord Wilberforce's second rule in Anns v.
Merton London Borough Council. As Lloyd J. put it: 191
But if I may express my own tentative view, it would be that it would
require a much stronger argument of policy for the duty of care in the
present case, arising out of so close a relationship as that which exists
between a carrier and a C.I.F. buyer, to be excluded.
92
Finally, Lloyd J. refused to follow The Wear Breeze:1
For the reasons which I have given, I would hold that, if the Wear
Breeze were being decided today, it would be decided differently.
It is interesting to note that Mustill J. in The Elafi and Roskill J. in
The Wear Breeze, in determining whether the consignee had a right to
sue in tort, looked at whether the property in the goods had passed to
the consignee, which in CIF contracts usually occurs when the seller
transfers the documents against which payment is made. 193 Lloyd J.,
on the other hand, took what would appear to be a better approach,
and looked at whether the risk had passed, which in CIF contracts
usually occurs on shipment. 194 Thus in CIF contracts, the risk will
normally pass before the transfer of documents and therefore before
the property passes. Even if the contract of sale is made after

191Id. at 637.
192 Id. at 639.
193Contrary to the general rule in FOB contracts, the property in the goods in CIF contracts
is not normally transferred to the buyer upon the goods passing the ship's rail. Since the parties'
intention remains the primary consideration (Sect. 17(1) of the Sale of Goods Act 1979), it is
conceivable that where the seller acts as shipper, the property may pass upon shipment if the
goods have been ascertained. Yet there is a presumption that the property is not intended to
pass until the shipping documents have been delivered to the buyer. The Miramichi, [1915] P.
71. Delivery of the documents is usually made upon payment by the buyer. If the documents are
delivered without payment, there is a presumption that the property in the goods has not
passed: Ginzberg v. Barrow Haematite Steel Co., [1966] 1 Lloyd's Rep. 343 at 353. See R.
Goode, Commercial Law 592-593 (1982).
194Johnson v. Taylor Bros., [1920] A.C. 144 at 156 (per Lord Atkinson); Comptoir d'Achat
et de Vente du Boerenbond Beige S.A. v. Luis de Ridder Limitada, [1949] A.C. 293 at 309 (per
Lord Porter). If the goods supplied by the seller are lost during the carriage without having been
ascertained (i.e., by an unconditional appropriation), the buyer cannot be said to bear the risk,
since it cannot be determined that it was in fact the contract goods which were lost. The seller
would thus be under the duty to supply similar goods once again. See R. Goode, supra note 193,
at p. 594.
420 JournalofMaritime Law and Commerce Vol. 17, No. 3

shipment, the risk will be placed on the buyer retrospectively as from

shipment. 195
The right to sue based on the burden of risk as propounded by
Lloyd J. is much more realistic today than the right based on
ownership. For example "Incoterms' 96 is concerned only with the
passing of risk; the passing of property is left to the particular
conditions of the sale. Similarly the United Nations Sale of Goods
Act 97 only concerns itself with the passing of risk and not with the
passing of property. Other modern sale of goods acts have also
discarded the passing of property as a primary factor in determining
who may sue and look instead at who is at risk. 198
e) The Aliakmon
The English Court of Appeal in The Aliakmon' 99 decided that
ownership of the goods is the proper criterion for taking suit in tort,
rather than being at risk. Sir John Donaldson, M.R. held that at the
time of the breach of tortious duty by the shipowners, the buyers
"were neither the owners of the steel, nor had they any right to
possession, . . ."200 The Master of the Rolls followed Lloyd J.'s
approach in The Irene's Success20 ' and applied Lord Wilberforce's
two-tier test set out in Anns v. Merton London Borough Council.202
Though he found that the shipowners did primafacie owe the buyers
a duty of care, 20 3 Sir John Donaldson held that there were consider-
ations that limited that duty of care: because the Hague Rules do not
apply to tort claims, the buyers were imposing a higher duty on the
shipowners than the latter owed the sellers under the bill of lading

5
19 The Nea Tyhi, [1982] 1 Lloyd's Rep. 606 at 612.
96 International Chamber of Commerce, InternationalRules for the Interpretationof Trade
Terms, No. 350 (Paris 1980).
1971978 Uncitral Draft Convention on Contracts for the International Sale of Goods,
approved by Uncitral on June 16, 1978 and appearing in Uncitral, Report on Eleventh Session
29-30 (1978). The resolution of the U.N. General Assembly is A/Res./33/93, December 16, 1978.
The text also appears at 27 Am. J. Comp. L. 325 (1979), with an interesting commentary by
Prof. John Honnold at 223. The provisions dealing with the passing of risk are Arts. 78-82.
I Uniform Commercial Code, Arts. 2-401, 2-509 and 2-510. See General Electric Co. v.
Lady Sophie, 1979 AMC 2554 (S.D.N.Y. 1979) where, though legal title passed to the buyer
under the CIF contract when the goods were loaded on the ship, the seller was nevertheless
allowed to sue the carrier. See also the Ontario Law Reform Commission's Report on Sale of
Goods 257-282, especially at 262 (1979).
' (Leigh and Sillivan Ltd. v. Aliakmon Shipping Ltd.), [1985] 2 W.L.R. 289. An appeal to
the House of Lords was dismissed on April 24, 1986. See Lloyd's Maritime Law Newsletter
170, May 8, 1986.
20 [1985] 2 W.L.R. at 298.
201[1981] 2 Lloyd's Rep. 635.
22 (1978] A.C. 728 at 751-752.
203Id. at 299.
July 1986 Suits For Cargo Loss or Damage

contract. 204 One may wonder if Sir John Donaldson would have
arrived at the same conclusion in a case where the Hague/Visby Rules
applied, since those rules apply to tort claims as well. In the case at
hand, therefore, the claimants could not sue in tort. Oliver, L.J., after
questioning certain applications of Lord Wilberforce's test in Anns,
held The Wear Breeze to have been properly decided. 205 Robert Goff
L.J., dissenting on this point, found that The Wear Breeze "should
now be regarded as wrongly decided". 20 6 He held that there was no
good reason why the buyers should not have a direct cause of action
in tort against the shipowners, relying on the principle of "transferred
loss":207

Where A owes a duty of care in tort not to cause physical damage to B's
property, and commits a breach of that duty in circumstances in which
the loss of or physical damage to the property will ordinarily fall on B
but (as is reasonably foreseeable by A) such loss or damage, by reason
of a contractual relationship between B and C, falls upon C, then C will
be entitled, subject to the terms of any contract restricting A's liability
to B, to bring an action in tort against A in respect of such loss of
damage to the extent that it falls on him, C.208

G. CIVIL LAW-SUIT IN DELICT

Suit in delict against the carrier is difficult in civil law jurisdictions,
but not for the same reason as in some Commonwealth common law
jurisdictions, where only the owner of the property may sue the
carrier in tort. 2 9 In civil law jurisdictions one need not necessarily be
the owner of the goods or at risk to take suit in delict; one need 20
merely have suffered direct damage by the fault of the carrier. '
Unfortunately in France, the existence of a contractual claim for
cargo damage rules out a delictual suit between the parties for the
21 1
same damage. In other words, cumul is not permitted.

mId. at 300.
20 Id. at 314.
2wId. at 331.
207 Id. at 330. In the case at hand, Robert Goff L.J., however, did not allow the suit in tort

against the shipowners because it was the charterers, not the shipowners, who had breached the
duty of care, thereby causing the loss.
-In Triangle Steel & Supply Co. v. Korean United Lines Inc., (1985) 63 B.C.L.R. 66, the
British Columbia Supreme Court respectfully declined to follow The Aliakmon.
2-9 Supra, text accompanying notes 176-177.
210
Art. 1382 c.c. (France); art. 1053 c.c. (Quebec); arts. 2315 and 2316 c.c. (Louisiana).
211 Cumul is the right of a claimant to sue not only in contract for breach of a contract but in
delict as well, for damage arising out of the same event.
422 Journalof MaritimeLaw and Commerce Vol. 17, No. 3

Thus the cargo claimant in France may not sue in contract and
delict simultaneously. In fact, if he is a contracting party, he may
never sue in delict at all. The exclusion of the delictual claim can
result in some difficult, if not absurd, results. In one case 2t 2 the real
consignee of cargo, because he was not named in the bill of lading and
was not the endorsee, was precluded from suing in contract. Yet he
was nevertheless prevented from suing in delict because, as the Cour
d'Appel d'Aix held, it was the named consignee (le destinataire
apparent), and not the real consignee (le destinatairer~el, who had
the interest to sue. While a breach of contract can give rise to an
action in delict by a person who is not a party to the contract, the
destinatairereel cannot sue the carrier in delict for damages he has
incurred due to the carrier's delay in delivering the goods, since the
carrier's obligation to deliver by a certain date is governed by the
contract of carriage to which the destinatairereel is not a party. 21 3
This is another aspect of the rule prohibiting cumul.
Various authorities have called for a more enlightened rule in
respect of cumul. 21 4 Some would permit suit on the tri-partite theory
of the contract of carriage, whereby the shipper, the carrier and the
real consignee are all considered to be parties. 2 5 Other authors and
the courts in general have nevertheless maintained a rigidity based
more on tradition and the presumed integrity of the contractual
regime than on any apparent elevated purpose of law. 21 6 This is
strange when one realizes that statutes and international conventions
have so intervened and restricted the rights of the shipper, carrier and
consignee that the contract of carriage is no longer the subject of
private agreement at all. The distinction between tort and contract is
thus not as relevant as in the past. Some civil law jurisdictions,
however, have permitted the claimant to opt either in contract or in
tort,217 while others have openly permitted cumul. 2 18

2 2
Cour d'Appel d'Aix-en-Provence, October 8, 1980, DMF 1981, 269, with a note by R.
Achard at 273; see also Bonassies, L'Action en responsabilit4delictuelle du destinataire rel,
DMF 1981, 515.
233 Bonassies, op. cit. supra note 212, at 520.
21
4 Achard and Bonassies, supra note 212.
21S Rodi~re, supra note 127, Tome 2, paras. 400, 405-408; Cour de Cassation, June 3, 1964,
DMF216
1964, 588, with note by Doyen Rodire at 591; Bonassies, supra note 212 at 522.
Cour d'Appel de Rouen, January 11, 1974, DMF 1974, 345; Cour de Cassation,October
29, 1975. DMF 1976, 145, with note by Doyen Rodire at 147.
217
For example, in Quebec: Wabasso Ltd. v. National Drying Machine Co. [1981] 1 S.C.R.
578 at 584. See also (1982] McGill L.J. 788-914.
2 18
Cour de CassationofBelgium J.P.A. 1974, 274.
July 1986 Suits For Cargo Loss or Damage 423
Nevertheless some suits in delict have been permitted in France,
including a third party action by the shipper against the time charterer
for having negligently ballasted the ship and thus caused wetting of
21 9
cargo.
The Visby Rules 220 and the Hamburg Rules 22 1 have both recognized
the right to take suit in delict and contract by making the same
defences available to the carrier (and his servants, agents and
prtposts) against suits arising in delict or contract or, one presumes,
both at the same time. One suspects that even in France suits in delict
will be permitted, despite a contractual link between the parties, since
22 2
the Hague/Visby Rules apply to France's international trade.

H. AMENDMENT

1. Introduction

Whether or not proceedings in a court case should be amended is

a question of balancing the equities between the parties. The problem
usually revolves around the question of prescription or delay in
bringing suit. In other words, may a new plaintiff be permitted to join
a suit after the one-year time for suit of the Hague and Hague/Visby
Rules has expired? In some instances allowing an amendment enables
justice to be done. At other times the strict observance of the rules is
the greatest equity, the rules being known in advance.

2. United States

American law and practice permits amendment of the complaint so

that a new claimant or the proper claimant may be added. Federal
Rule of Civil Procedure 17(a), as amended in 1966, reads:

No action shall be dismissed on the ground that it is not prosecuted in

the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if the
action had been commenced in the name of the real party in interest.

21
9 Cour d'Appel de Rouen, February 9, 1982, DMF 1982, 669.
20 Protocol to the Brussels Convention on Bills of Lading, signed at Brussels February 23,
1968, art. 4 bis.
221 United Nations Convention on Carriage of Goods by Sea, signed at Hamburg March 31,
1978.
222
Bonassies, supra note 212, DMF 1981, 515 at 517, 521.
424 Journalof Maritime Law and Commerce Vol. 17. No. 3

In consequence, amendments are permitted even after the limita-

223
tion period has expired.

3. Canada
Generally in Canada, no amendment is admitted to add a plaintiff
which would deprive the defendant of a legal defence. Thus, after the
expiry of the time for suit, neither a new plaintiff nor a new cause of
action may be added. 224 The addition of the consignee to a suit already
225
taken by the consignor in an FOB sale has, however, been permitted.
In Vancouver Tug Boat Co. Ltd. v. Pacific Lime Co. Ltd.226 the
court permitted the change of defendant's name from Pacific Coast
Lime Co. Ltd. (a misnomer and solicitor's error) to Pacific Lime Co.
Ltd. The amendment was permitted after the time for suit had run. A
distinction was made between a misnomer and suits "in the name of
a dead man, instituted in the name of a personal representative before
being properly constituted as such, instituted in a firm name contrary
to the provisions of rules of court, or instituted in the name of the
wrong plaintiff. "227
The Canadian Federal Court Rules (in force since 1971) provide
some discretion to the court in permitting an amendment, 228 particu-
larly as a result of Rules 302,229 1715230 and 1716.231 Nevertheless, the
court must distinguish between the correction of a misnomer after
prescription, which is permitted, and the adding of plaintiffs after
32
prescription, which is not.2 Counsel for plaintiffs may not even be
able to protect himself by styling the cause of action "Those Persons
Interested in the Cargo etc . "..233

223 Unilever (Raw Materials) Ltd. v. Stolt Boel, 77 F.R.D. 834, 1978 AMC 167 at 171-172

(S.D. N.Y. 1977).

224 Canada Malting Co. Ltd. v. Burnett Steamships Co., [19651 2 Ex. C.R. 257 at 264.
225 Id. at 265, relying on Firestone Plantations Co. v. United States, 1945 AMC 746 (N.D.

Oh. 1945).
226[1956] Ex.C.R. Ill.
227 Id. at 117.
228 The Irving Sea Lion v. Rail & Water Terminal (Qud.) Ltd., [1978] 1 F.C. 527 at 530-531.
229Rule 302: "(a) [N]o proceeding in the Court shall be defeated by any merely formal
objection;"
23ORule 1715(2) permits joinder ofjoint plaintiffs "subject to the provisions of any Act.
which would mean any statute relating to time for suit or prescription.
231 Rule 1716 (1); "No action shall be defeated by reason of the misjoinder or nonjoinder of
any party;..."
232 Newfoundland Steamships Ltd. v. Canada Steamship Lines, [1980] 2 F.C. 134, (1980) 107
D.L.R. (3d) 84.
233 Id. at 2 F.C. 139, and 107 D.L.R. (3d) at 87.
Juty 1986 Suits For Cargo Loss or Damage 425
4. United Kingdom
In an English case, two persons, who were really in partnership as
carriers and were equal share owners of a ship, had used the name
Olympia Maritime Company S.A., although it had never been incor-
porated and the company was non-existant. Donaldson J. held that
the partners could sue in their own names against cargo owners on a
general average bond in the name of Olympia Maritime Company
S.A. 234 No amendment was necessary.

5. Conclusion
Permitting amendments so that the names of claimants can be
added after the time for suit has expired will enrage those persons
who abhor sloppy advocacy and all its consequences, including
uncertainties and considerable waste of time and expense for the
defendants and for the courts. Permitting such amendments, on the
other hand, will please those persons who wish to determine the true
equities between the parties to a legal dispute.
The solution to the dilemma would perhaps be to permit amend-
ments after the expiry of the time for suit 1) where the amendment
was not necessitated by a gross or unexplained error but was
reasonable in the circumstances, and 2) where the rights of the other
party are not otherwise affected, thus preserving the substantive
equities in the case. Examples of permissible amendment would be
the rectification of the names of companies so as to join the proper
plaintiff or defendant, the resolution of confusion in the case of
related companies, and clarification where the rights and equities of
the buyer and seller are not clear under the sales contract.

-The Aga, [1968] 1 Lloyd's Rep. 431.

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Halsbury, S. Stanley Giffard Halsbury & Quintin Hogg Hailsham, Halsbury's Laws of
England Being a Complete Statement of the Whole Law of England (2nd ed.) (2).

APA 7th ed.

Halsbury, S. (2). Halsbury's Laws of England Being Complete Statement of the Whole
Law of England. London, Butterworth & Co.

Chicago 17th ed.

Halsbury Stanley Giffard; Hailsham, Quintin Hogg. Halsbury's Laws of England Being a
Complete Statement of the Whole Law of England. London, Butterworth & Co.

McGill Guide 9th ed.

Stanley Giffard; Hailsham Halsbury, Quintin Hogg, Halsbury's Ls of Engl& Being a
Complete Statement of the Whole L of Engl& (London: Butterworth & Co., 2)

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Stanley Giffard; Hailsham Halsbury, Quintin Hogg, Halsbury's Laws of England Being a
Complete Statement of the Whole Law of England (Butterworth & Co., 2)

MLA 8th ed.

Halsbury, Stanley Giffard, and Quintin Hogg Hailsham. Halsbury's Laws of England
Being a Complete Statement of the Whole Law of England. London, Butterworth & Co.
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Halsbury, Stanley Giffard; Hailsham, Quintin Hogg. Halsbury's Laws of England Being a
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388 SHIPPING AND NAVIGATION. [Vol. XXX.
SEcT. 2. that a bill of lading in the hands of a consignee or indorsee for
Bills of valuable consideration, representing goods to have been shipped, is
Lading. to be conclusive evidence of shipment as against the master or other
person signing it (h), notwithstanding that such goods or some part
thereof may not have been shipped (i), unless the holder of the bill
of lading had, at the time when he became holder, actual notice
that the goods had not in fact been put on board (k). The master
or other person signing the bill of lading may, however, exonerate
himself in respect of any misrepresentation contained in the bill of
lading by showing that it was caused without any default on his
part (1), and wholly by the fraud of the shipper, or of the holder, or
"Shipped in some person through whom the holder claims (m). But although
good order the words " shipped in good order and condition " do not import a
and con-
dition." warranty they do amount to a representation of fact that the goods
were shipped in apparent good order and condition, and if an indorsee
changes his position on the faith of this representation and after-
wards sues the shipowner for delivering the goods in bad condition,
the latter (at any rate where he was not induced to make the
statement by fraud) will be estopped (n) from denying that the
(h) As to signature by an agent, see p. 385, ante. The master is not pre-
cluded, in an action for freight, from showing that the weight of the cargn
which he received is different from that specified in the bill of lading (Blanchet
v. Powell's Llantivit Collieries Co. (1874), L. R. 9 Exch. 74; 41 Digest 652, 4839).
(i) The fact that the bill of lading specifies a particular identification mark
does not preclude the defendant from showing that the identification mark was
incorrect, and that the goods which he has tendered, though differently marked,
were the goods shipped under the bill of lading (Parsonsv. New Zealand Shipping
Co., [1901] 1 K. B. 548, C. A.; 41 Digest 382, 2275).
(k) Bills of Lading Act, 1855 (18 & 19 Vict. c. 111), s. 3; Bradley v. Dunipace
(1862), 1 II. & C. 521, Ex. Ch.; 41 Digest 382, 2279.
(1) A mistake on the part of the master is not sufficient to make him liable
(Valieri v. Boyland (1866), L. R. 1 C. P. 382; 41 Digest 382, 2273, where sixty-
five bales were shipped, though the shipper claimed to have put on board sixty-
nine, and the bill of lading followed the mate's receipt, which stated the number
as " 69, four over in dispute " in mistake for " 69, four less in dispute ").
(m) Bills of Lading Act, 1855 (18 & 19 Vict. c. 111), s. 3; cf. Bates v. Todd
(1831), 1 Mood. & R. 106; 41 Digest 378, 2238. For a case in which the proviso
was held to be inapplicable on the ground that the master was as well aware
as the shipper that he was signing a false statement, see Evans v. Webster (James)
& Brothers, Ltd. (1928), 34 Con. Cas. 172; Digest Supp.
(n) In the case of bills of lading which are subject to the Carriage of Goods
by Sea Act, 1924 (14 & 15 Geo. 5, c. 22), the shipowner will also be estopped
from relying on the exception " insufficiency of packing," under' ibid.,
Sched. art. IV., r. 2, (Silver v. Ocean Steamship Co., Ltd., [1930] 1 K. B.
416, C. A.; Digest Supp.); see note (i), p. 614, post. The estoppel will only
be available to the indorsee or holder if he has changed his position on
the faith of the representation (The Skarp, [1935] P. 134; Digest Supp.).
The fact that the indorsee has taken up and pays for the bill of lading
and other shipping documents under a c.i.f. contract is primd facie evidence
that he has changed his position on the faith of the representation in the
bill of lading (Silver v. Ocean Steamship Co., Ltd., supra). But if his con-
tract of sale precludes the indorsee from rejecting the shipment though
giving him a right to claim damages for the defects in the goods he will not have
changed his position by taking up the documents (The Skarp, supra; contrast
Amis, Swain & Co. v. Nippon Yusen Kabushiki Kaisha (1919), 1 Ll. L. R. 51).
 PART- VII.-CARRIAGE OF GOODS. 1989

goods were shipped in apparent good order and condition (o). But SECT. 2.
he will not be estopped from proving that the internal condition Bills of
of the goods was bad (p). It is, therefore, the practice of the Lading.
master or person signing the bill of lading to qualify the statements Qualification
as to the goods inserted in the bill of lading by adding some such of statements
phrase as " weight, quality, quantity, and contents unknown " (q). as to goods.
Although by signing the bill of lading he admits that certain goods
have been received by the ship, the effect of the qualification is
that he declines to accept the particulars furnished him by the
shipper as correct (r). He is not, therefore, bound by any statement
The addition of the word " apparent " to the word " good " in the phrase
" shipped in good order and condition" is immaterial; with or without this
addition the phrase only means that the external condition of the shipment is
good, so far as would appear from such examination as the shipowner's servants
could reasonably make (The Peter der Grosse (1875), 1 P. D. 414; affirmed
(1876), 34 L. T. 749, C. A.; 41 Digest 383, 2286), and therefore the person
relying on the estoppel must satisfy the tribunal that the defect in question
was one which would have been apparent to the shipowner on reasonable
examination (Re Athelviscount (Motor-Tanker) (Owners) and National Petroleum
Co. (1934), 39 Com. Cas. 227 ; Digest Supp.).
(o) Compania Naviera Vasconzada v. Churchill and Sim, [1906] 1 K. B. 237;
41 Digest 379, 2254. It is only as against an indorsee, or a holder of the bill
of lading who takes delivery thereunder (Brandt v. Liverpool, Brazil and River
Plate Steam Navigation Co., Ltd., [1924] 1 K. B. 575, C. A.; 41 Digest 379,
2257), that this estoppel arises; as against the shipper the representation is a
mere admission which the shipowner is entitled to disprove.
(p) Ibid.; and see The Tromp, [1921] P. 337; 41 Digest 384, 2288, and Re
Athelviscount (Motor-Tanker) (Owners) and National Petroleum Co., supra. It
seems that the representation has no relation to original defects of quality or
type; per GREER, L.J., in Silver v. Ocean Steamship Co., Ltd., [1930] 1 K. B. 416,
C. A., at p. 433; Digest Supp.
(q) See Encyclopedia of Forms, 2nd Ed., Vol. XVII., pp. 113, 149, 151.
.

(r) Lebeau v. General Steam Navigation Co. (1872), L. R. 8 C. P. 88, per

BErr, J., at p. 96; 41 Digest 336, 1891, referring to Jessel v. Bath (1867),
L. R. 2 Exch. 267; 41 Digest 310, 1709. The master is not, however, precluded
from claiming freight on the quantities expressed in the bill of lading (Tully
v. Terry (1873), L. R. 8 C. P. 679; 41 Digest 383, 2282), nor does the insertion
of the words " measure unknown " in the bill of lading prevent the shipowner
from insisting on the cargo being remeasured at the port of discharge at the
expense of the charterers where the latter have impliedly agreed in the charter-
party to measure the cargo according to a certain method at the port of loading
and that method has not been followed (Merryweather (Jos.) & Co., Ltd. v.
Pearson (Wm.) & Co., [1914] 3 K. B. 587; 41 Digest 660, 4917). In Hogarth
Shipping Co., Ltd. v. Blyth, Greene, Jourdain & Co., Ltd., [1917] 2 K. B. 534,
C. A.; 41 Digest 381, 2265, the master signed bills of lading for a certain number
of bags of sugar, " weight, measure, quality, contents, and value unknown."
The bills of lading contained the clause " freight and all other conditions and
exceptions as per charterparty " and the charterparty provided that the captain
should " sign Eastern Trade bills of lading which are to be deemed conclusive
proof of cargo shipped, and their conditions to form part of this charterparty."
It was held by the whole Court of Appeal that the conclusive proof clause in
the charterparty was not incorporated in the bill of lading. BRAY, J., was of
opinion that even if it had been incorporated it would have conflicted with
the statement " weight, etc., unknown " and that the latter clause must prevail
so as to entitle the shipowners to prove that the quantity shipped was less than
that stated in the bills of lading. Where the master signed bills of lading for
a cargo of potatoes in bags in which they were described as shipped in good
390 SHIPPING AND NAVIGATION. [Vol. XXX.
SECT. 2. in the bill of lading with reference to matters specifically excluded
Bills of by the qualification (s). At the same time he must deliver the
Lading. goods which he has actually received, whatever they may be (t).
Unless, however, the qualification expressly refers to the condition
of the goods, the statement that the goods have been shipped in
good order and condition constitutes, as against both the master
and the shipowner (u), an admission that the goods were externally
to all appearance in good order and condition at the time of ship-
ment (a). If, therefore, the goods on delivery appear to be damaged
externally, the shipowner is primd facie liable on the admission (b);
but, if the claim is made by a person who has not changed his
position on the faith of the admission, the shipowner can displace

order and condition, "weight, quality, condition, and measure unknown," it

was held that the qualification "condition unknown" only applied to the
internal condition of the cargo and that the shipowner was estopped from
denying that the bags were dry when shipped (The Tromp, [1921] P. 337; 41
Digest 384, 2288). See also The Skarp, [1935] P. 134; Digest Supp., where a
similar qualification was held not sufficient to entitle the shipowner to prove that
a cargo of timber was shipped in a wet and musty condition. The words " shipped
in good order and condition and to be delivered in like good order and condition

"
do not import a contract to deliver in good order and condition (ibid., applying
Compania Naviera Vasconzada v. Churchill and Sim, Same v. Burton & Co., [1906]
1 K. B. 237; 41 Digest 379, 2254).
(s) Jessel v. Bath (1867), L. R. 2 Exch. 267; 41 Digest 310, 1709; of. Haddow
v. Parry (1810), 3 Taunt. 303; 41 Digest 382, 2276; New Chinese Antimony
Co., Ltd. v. Ocean Steamship Co., Ltd., [1917] 2 K. B. 664, C. A.; 41 Digest
382, 2278 (" a quantity said to be 937 tons," " weight, measurement, contents,
and value (except for the purposes of estimating freight) unknown." Held, bill
of lading not even primd facie evidence of number of tons shipped); applied in
Craig Line Steamship Co., Ltd. v. North British Storage and Transit Co., [1921]
S. C. 114; North Shipping Co., Ltd. v. Bank (Joseph), Ltd. (1926), 136 L. T. 415;
41 Digest 379, 2252.
(t) Lebeau v. General Steam Navigation Co. (1872), L. R. 8 0. P. 88; 41 Digest
336, 1891; The Emilien Marie (1875), 2 Asp. M. L. C. 514; 41 Digest 384, 2294.
His liability is not affected by a misdescription of the goods, unless fraudulent
(Lebeau v. General Steam Navigation Co., supra).
(u) Compania Naviera Vasconzada v. Churchill and Sim, Same v. Burton
& Co., supra (where the bill of lading stated " quality unknown," and it was
held that this did not qualify the admission that the goods were shipped in good
condition), followed in Martineaus, Ltd. v. Royal Mail Steam Packet Co., Ltd.
(1912), 17 Con. Cas.. 176; 41 Digest 383, 2287; of. Crawford and Law v. Allan
Line Steamship Co., Ltd., [1912] A. C. 130; 41 Digest 384, 2290. Even the
words " condition unknown " may not be enough to entitle the shipowner to
prove that the goods were shipped in bad apparent condition; see The Tromp,
supra, and The Skarp, supra. A master's protest alleging that some of the
cargo was damaged on shipment will not preclude the indorsee from relying
on a clean bill of lading, since the protest does not necessarily refer to the goods
covered by the bill of lading and the indorsee is entitled to rely on the latter
document unless he has a contradictory statement before him which is at least
as clear as the representation in the bill of lading (Evans v. Webster (James)
& Brothers, Ltd. (1928), 34 Com. Cas. 172; Digest Supp.).
(a) The Peter der Grosse (1875), 1 P. D. 414; affirmed (1876), 34 L. T. 749,
C. A. ; 41 Digest 383, 2286; Compania Naviera Vasconzada v. Churchill and
Sim, Same v. Burton & Co., supra; Martineaus, Ltd. v. Royal Mail Steam Packet
Co., Ltd., supra.
(b) Ibid.
 PART VII.-CARRIAGE OF GOODS.

this primd facie case and escape liability if he can prove either SECT. 2.
that the admission was in fact incorrect because the damage occurred Bills of
before he received the goods or that the goods were in fact damaged Lading.
by a cause for which he is not responsible (c). If, however, the
damage is internal, the shipper must prove that the goods were in
fact in good order and condition internally when shipped, or (d)
that the damage is attributable, not to an inherent defect in the
goods themselves (e), but to some external cause (f); otherwise
the shipowner is not responsible.

SUB-SECT. 5.-The Transfer of the Bill of Lading (g).

561. A bill of lading, as being a document of title (h), has always, How far
by the custom of merchants (i), been regarded as transferable (k), transferable.
unless transfer is precluded by the form in which it is drawn (1). It
does not appear to be transferable where it requires the goods

(c) The Peter der Grosse (1875), 1 P. D. 414; affirmed (1876), 34 L. T. 749,
C. A.; 41 Digest 383, 2286; Crawford and Law v. Allan Line Steamship Co.,
Ltd., [1912] A. C. 130; 41 Digest 384, 2290. For the position when the claim
is made by an indorsee as holder of the bill of lading, see p. 388, ante.
(d) Where the damage may arise either from the bad condition of the goods
when shipped, or from some cause existing in the ship, it may be essential to
prove the state of the goods before shipment, as where a cargo of grain is found
to be heated; but where noxious substances calculated to produce the peculiar
damage actually present are found in close proximity to the goods, cause and
effect are so closely brought together that a conclusion can be reached without
proof of their condition at the time of shipment (Moore v. Harris(1876), 1 App.
Cas. 318, 326, P. C.; 41 Digest 310, 1708, where tea in packages was tainted
by a disinfectant, and such disinfectant had been used on board). Similarly
the arrival of the ship without the goods is primd facie evidence against the
shipowner (Wilson, Sons & Co. v. Xantho (Owners of Cargo) (1887), 12 App.
Cas. 503; 41 Digest 414, 2573), although there is no evidence to show how the
goods were lost (Baxter's Leather Co. v. Royal Mail Steam Packet Co., [1908] 2
K. B. 626, C. A.; 41 Digest 496, 3247), but it is otherwise if the ship herself
fails to arrive (Boyson v. Wilson (1816), 1 Stark. 236; 41 Digest 554, 3809).
(e) The Barcore, [1896] P. 294; 41 Digest 654, 4863; Greenshields, Cowie
&

Co. v. Stephens & Sons, Ltd., [1908] A. C. 431, per Lord HALSBURY, at p. 436,
approving Johnson v. Chapman (1865), 19 C. B. (N. s.) 563, per WILLES, J., at
p. 581; 41 Digest 596, 4216.
(f) The Ida (1875), 32 L. T. 541, P. C.; 41 Digest 383, 2284, disapproving
The Prosperino Palasso (1873), 29 L. T. 622; 41 Digest 383, 2283.
(g) See note (b), p. 373, ante.
(h) See pp. 376, 377, ante; titles BANKERs AND BANKG, Vol. I., pp. 863,
864; SALE OF GOODs, Vol. XXIX., pp. 17, 95, 96.
(i) Lickbarrow v. Mason (1794), 5 Term Rep. 683; 41 Digest 384, 2292; 1
Smith, L. C., 13th ed., p. 703; Haille v. Smith (1796), 1 Bos. & P. 563, Ex. Ch.;
41 Digest 397, 2427.
(k) Evans v. Marlett (1697), 1 Ld. Raym. 271; 41 Digest 370, 2172; Appleby v.
Pollock (1748), cited in Abbott on Shipping, 5th ed. at p. 385; 14th ed. at p. 844;
Wright v. Campbell (1767), 4 Burr. 2046; Caldwell v. Ball (1786), 1 Term Rep.
205; 41 Digest 385, 2300; Hibbert v. Carter (1787), 1 Term Rep. 745; 41
Digest 394, 2365; Salomons v. Nissen (1788), 2 Term Rep. 674; 39 Digest
633, 2302; Lickbarrow v. Mason, supra; Sewell v. Burdick (1884), 10 App.
Cas. 74; 41 Digest 372, 2186. For form of application for advance on security
of bill of lading, see Encyclopoedia of Forms, 2nd Ed., Vol. XVII., p. 80.
(1) Henderson & Co. v. Comptoir d'Esconpte de Paris (1873), L. R. 5 P. C.
253; 41 Digest 396, 2400.
 SHIPPING AND NAVIGATION. [Vol. XXX.
SECT. 2. specified therein to be delivered to a named person, omitting any
Bills of reference to his order or assigns (m). The further transfer of a bill
Lading. of lading transferable in origin may be restricted (n) or prohibited
by the form in which it is indorsed (o).
Bills in a set. 562. Where a bill of lading is issued in a set, and the shipper is
in possession of more than one part (p), the different parts cannot
be transferred to different persons so as to constitute each of them
a holder of the bill of lading (q). There is only one bill of lading,
though represented by different parts; a transfer of any one part, if
intended to operate as such (r), is a transfer of the bill of lading (s),
and the subsequent transfer of any other part is inoperative (t).
Mode of 563. A bill of lading which contains the name of the consignee,
transfer. and further provides for delivery to his order or to his assigns, is
transferred by indorsement and delivery (u). Such indorsement
may name the transferee to whom delivery is to be made, in which
case it is called a special indorsement (a). If no transferee is named
the indorsement is called an indorsement in blank (b), and the
goods specified in the bill of lading are deliverable to bearer (c).
If the bill of lading does not name the consignee, but makes the
goods deliverable to bearer, or to order or assigns, the space for the
name of the consignee being left blank, it may be transferred by
delivery without indorsement (d).
(m) Henderson & Co. v. Comptoir d'Escompte de Paris. (1873), L. R. 5 P. C.
253; 41 Digest 396, 2400.
(n) Lewis v. M'Kee (1868), L. R. 4 Exch. 58, Ex. Ch.; 41 Digest 399, 2449
(where the indorsement was " without recourse "); cf. Barrow v. Coles (1811),
3 Camp. 92; 39 Digest 516, 1329. As to stoppage in transitu, see, generally,
title SALE OF GOODS, Vol. XXIX., pp. 167 et seq.
(o) Abbott on Shipping, 5th ed., p. 383; 14th ed., p. 843.
(p) As to bills in a set, see pp. 382, 384, ante.
(q) Glyn, Mills & Co. v. East and West India Dock Co. (1882), 7 App. Cas.
591 ; 41 Digest 393, 2362; Gilbert v. Guignon (1872), 8 Ch. App. 16; 41 Digest
385, 2302.
(r) Moakes v. Nicolson (1865), 19 C. B. (N. s.) 290; 39 Digest 517, 1340;
The Tigress (1863), Brown. & Lush. 38; 41 Digest 394, 2368; Barberv. Meyer-
stein (1870), L. R. 4 H. L. 317; 41 Digest 394, 2371.
(s) Sanders v. Maclean (1883), 11 Q. B. D. 327, C. A.; 41 Digest 395, 2373,
where it was held that a tender of two out of three parts to a buyer of the goods
was effectual, and the buyer was not entitled to refuse it on the ground that the
third part was not forthcoming.
(t) Caldwell v. Ball (1786), 1 Term Rep. 205; 41 Digest 385, 2300; Barber
v. Meyerstein, supra; see note (b), p. 399, post.
(u) Lickbarrow v. Mason (1794), 5 Term Rep. 683; 41 Digest 384, 2292; 1
Smith, L. C., 13th ed., p. 703. Until delivery either of the bill of lading or of
the goods to the indorsee the indorsement may be revoked (Mitchel v. Ede
(1840), 11 Ad. & El. 888; 41 Digest 371, 2178).
(a) Abbott on Shipping, 5th ed., p. 383; 14th ed., p. 843. As to the difference
between such an indorsement and an indorsement in blank, as regards the
title passed to the transferee, see Sewell v. Burdick (1884), 10 App. Cas. 74,
per Lord SELBORNE, L.C., at p. 83; 41 Digest 372, 2186.
(b) Gurney v. Behrend (1854), 3 E. & B. 622; 41 Digest 385, 2297.
(c) Sewell v. Burdick, supra, per Lord SELBORNE, L.C., at p. 83.
(d) Sewell v. Burdick, supra.
 PART VII.-ARRIAGE OF GOODS. 398

Under a special indorsement the indorsee may, if the form of the SECT. 2.
indorsement so permits, transfer the bill of lading by indorsement Bills of
and delivery to a subsequent indorsee (e). If the bill of lading is Lading.
indorsed in blank, it is transferable by mere delivery (f). The
holder may, however, at any time convert the indorsement in
blank into a special indorsement by inserting in the indorsement
the name of the person to whom delivery is to be made (g) ; and he
may also specially indorse a bill of lading to bearer (h), or insert
the name of a consignee in the space on the face of the bill of lading,
if left blank (i). In these cases the bill of lading ceases to be trans-
ferable by mere delivery, and requires indorsement by the consignee
whose name is inserted or by the indorsee named in the special
indorsement, as the case may be, before it is capable of being further
transferred (k).

564. A bill of lading may be transferred to an agent merely for Transfer to

purposes of convenience, to enable him to deal with the goods agent.
specified therein on behalf of the owner, as, for instance, where he
is authorised to take delivery of them (1), or to stop them in
transit (m). In this case no property in the goods passes to the
agent, as holder of the bill of lading, by reason of the transfer of
the bill of lading, since the transfer is not intended to have that
effect (n). The agent cannot, therefore, as a general rule, by a
further transfer of the bill of lading, divest his principal of his
property in the goods (o). Where, however, the agent has authority,
express (p) or implied (q), to deal with the bill of lading so as to pass
the property in the goods, a transfer of the bill of lading by him in
accordance with his authority will be equivalent to a transfer by the
principal himself, and will pass the property to the transferee (r).

(e) Sewell v. Burdick (1884), 10 App. Cas. 74, per Lord SELBORNE, L.C., at
p. 83; 41 Digest 372, 2186. As to the effect of reindorsement to the shipper,
see Short v. Simpson (1866), L. R. 1 C. P. 248; 41 Digest 398, 2439.
(f) Sewell v. Burdick, supra.
(g) Lickbarrow v. Mason (1794), 5 Term Rep. 683; 41 Digest 384, 2292.
(h) Ibid.
(i) Abbott on Shipping, 5th ed., p. 383; 14th ed., p. 843.
(k) Sewell v. Burdick, supra, per Lord SELBORNE, at p. 83 ; Pease v. Gloahec,
The Marie Joseph (1866), 3 Moo. P. C. C. (N. s.) 556; 41 Digest 400, 2465.
(1) Patten v. Thompson (1816), 5 M. & S. 350; 39 Digest 635, 2311; Burgos
v. Nascimento, [1908] W. N. 237; 41 Digest 393, 2358.
(m) Morison v. Gray (1824), 2 Bing. 260; 41 Digest 387, 2313.
(n) Waring v. Cox (1808), 1 Camp. 369; 41 Digest 387, 2312; of. Lauritzen
v. Carr (1894), 72 L. T. 56; 41 Digest 387, 2314; Burgos v. Nascimento,
supra; see title SALE OF GOODs, Vol. XXIX., pp. 95, 96.
(o) Cf. Blake v. Belfast Discount Co. (1880), 5 L. R. Ir. 410, C. A.; Newsom
v. Thornton (1805), 6 East, 17; 41 Digest 386, 2306.
(p) The Argentina (1867), L. R. 1 A. & E. 370; 41 Digest 386, 2310.
(q) See Factors Act, 1889 (52 & 53 Vict. c. 45), s. 1; Sale of Goods Act, 1893
(56 & 57 Vict. c. 71), s. 25; title SALE OF GOODs, Vol. XXIX., pp. 112 et seq.
(r) The Argentina, supra.
13*
894 SHIPPING AND NAVIGATION. [Vol. XXX.

SEOT. 2. 565. A transfer of the bill of lading may, however, be intended to

Bills of operate as a transfer of the goods specified therein (s). In this case
Lading. such property passes to the transferee as is intended by the parties
When to pass (t). Whether the transfer is intended to pass the whole
equivalent property or only a qualified property is a question of fact depending
to transfer upon the circumstances of each particular case (u).
of goods. The whole property in the goods does not pass unless the transfer
of the bill of lading was intended to have that effect (a).
Where the intention to pass the whole property is clear, as where
the goods are sold while at sea, the transfer of the bill of lading to
the buyer divests the seller of all property in the goods and con-
stitutes the buyer owner (b). The seller, if unpaid, will, however,
retain his right to stop the goods in transit (c) ; but this right will

(s) Barber v. Meyerstein (1870), L. R. 4 H. L. 317; 41 Digest 394, 2371;

E. Clemens Horst Co. v. Biddell Brothers, [1912] A. C. 18, per Lord LOREBURN,
L.C., at p. 22; 39 Digest 575, 1801; of. The Tigress (1863), Brown. & Lush.
38; 41 Digest 395, 2368; see titles PERSONAL PROPERTY, Vol. XXV., p. 214;
SALE OF GOODS, Vol. XXIX., pp. 95, 96.
(t) Sewell v. Burdick (1884), 10 App. Cas. 74; 41 Digest 372, 2186, discussing
Barber v. Meyerstein, supra; Newsom v. Thornton (1805), 6 East, 17, at p. 40;
41 Digest 386, 2306.
(u) Sewell v. Burdick, supra.
(a) Newsom v. Thornton, supra; Sewell v. Burdick, supra. In the absence
of evidence to the contrary and apart from rules which arise out of a state of
war existing or imminent at the beginning of the transaction,!the general law
infers that under a c.i.f. contract when the bill of lading is delivered to the
buyer's agent in exchange for the buyer's acceptance of the seller's draft it is
intended that the ownership of the goods is to be transferred to the buyer by
such delivery; see per Lord SUmNER in The Prinz Adalbert, [1917] A. C. 586,
P. C. at p. 590; 41 Digest 390, 2341. But the circumstances may warrant
the inference that the property was intended to pass on shipment even in a case
in which the bill of lading was taken out in the seller's name and was not intended
to pass into the buyer's possession until payment of the purchase price (The
Parchim, [1918] A. C. 157, P. C.; 39 Digest 517, 1344). A so-called " sale
"

of a draft on the buyers to a bank accompanied by a delivery to the bank of

the bill of lading indorsed in blank and other shipping documents does not
indicate an intention to transfer the property in the goods to the bank (The
Orteric, [1920] A. C. 724, P. C.; 41 Digest 387, 2318). As to c.i.f. and f.o.b.
contracts, see title SALE OF GOODs, Vol. XXIX., pp. 210 et seq., 225-228; as
to the effect of delivery to a ship chartered by the buyer, see ibid., pp. 138-
140.
(b) Wright v. Campbell (1767), 4 Burr. 2046 ; Barber v. Meyerstein, supra.
The property in the goods may, however, pass without any transfer of the bill
of lading, if such is the intention of the parties (Meyer v. Sharpe (1813), 5 Taunt.
74; 41 Digest 388, 2328; Nathan v. Giles (1814), 5 Taunt. 558; 41 Digest
395, 2387; Joyce v. Swann (1864), 17 C. B. (N. s.) 84; 41 Digest 370, 2161
cf. Dick v. Lumsden (1793), Peake, 250 [189]; 41 Digest 395, 2381).
(c) Walley v. Montgomery (1803), 3 East, 585; 41 Digest 397, 2415; Tucker
v. Humphrey (1828), 4 Bing. 516; 39 Digest 624, 2212; Pease v. Gloahec, The
Marie Joseph (1866), L. R. 1 P. C. 219; 41 Digest 400, 2465; Bethell v. Clark
(1888), 20 Q. B. D. 615, C. A.; 39 Digest 618, 2164; Kemp v. Ismay, Imrie
& Co. (1909), 14 Com. Cas. 202; 39 Digest 618, 2165; but see Wilmshurst
v. Bowker (1844), 7 Man. & G. 882, Ex. Ch.; 39 Digest 517, 1337. As to
stoppage in transitu, see, generally, title SALE OF GOODs, Vol. XXIX., pp. 167
et seq.
 PART VII.-CARRIAGE OF GOODS. 895

be defeated by a resale of the goods by the buyer (d), accompanied SECT. 2.

by a transfer of the bill of lading to the new buyer (e), or by the Bills of
buyer taking delivery of the goods under the bill of lading (f). Lading.
566. For his better protection the seller may adopt one or other Protection
of the following courses, namely : of seller:
(1) The seller may reserve the right of disposal (g) by taking a (1) By re-
bill of lading under which the goods are deliverable to himself or to serving right
his agent (h). This bill of lading is not transferred to the buyer,
but retained until the price is paid, and therefore the property in
the goods remains in the seller (i). If, however, the agent to whom
the bill of lading has been forwarded, with instructions not to
hand it over to the buyer without first receiving payment, in fact
hands it over without receiving payment, the transfer passes the
property to the buyer ; and a further transfer, therefore, from the
buyer to a person who takes the bill of lading bonafide without notice
and for value defeats the seller's rights and passes the property to
the second transferee, notwithstanding that the bill of lading was
obtained from the seller's agent by the buyer's fraud (k).
(2) The seller may tender (1) to the buyer a bill of lading duly (2) by draw-
ing for the
prce;
(d) Jenkyns v. Usborne (1844), 7 Man. & G. 678; 41 Digest 369, 2154; Pease
v. Gloahec, The Marie Joseph (1866), L. R. 1 P. C. 219; 41 Digest 400, 2465.
But the original buyer in his turn may stop the goods as against the new buyer
(Patten v. Thompson (1816), 5 M. & S. 350; 39 Digest 635, 2311).
(e) The Argentina (1867), L. R. 1 A. & E. 370; 41 Digest 386, 2310; Kemp
v. Canavan (1864), 151. C. L. R. 216; 39 Digest 633, m. But if the bill of lading
has never been transferred to the original buyer, a resale does not affect the
original seller's right (Kemp v. Falk (1882), 7 App. Cas. 573; 39 Digest 635,
2308).
(f) Coxe v. Harden (1803), 4 East, 211; 41 Digest 387, 2311. A stoppage
in transitu after a portion of the goods has been delivered is effectual as regards
the balance (Re McLaren, Exparte Cooper (1879), 11 Ch. D. 68, C. A.; 39 Digest
627, 2238).
(g) Shepherd v. Harrison (1871), L. R. 5 H. L. 116; 39 Digest 520, 1355.
As to the seller reserving the right of disposal, see, further, title SALE OF GOODS,
Vol. XXIX., p. 90.
(h) Craven v. Ryder (1816), 6 Taunt. 433; Key v. Cotesworth (1852), 7 Exch.
595; 39 Digest 518, 1346; Gaharron v. Kreeft, Kreeft v. Thompson (1875),
L. R. 10 Exch. 274; 39 Digest 486, 1056, where the bill of lading was made
out to a fictitious person; cf. Wait v. Baker (1848), 2 Exch. 1; 39 Digest 488,
1075; Ruck v. Hatfield (1822), 5 B. & Ald. 632; 39 Digest 627, 2244. But the
seller may be precluded by the terms of his contract from doing so (Cowas-Jee
v. Thompson (1845), 5 Moo. P. C. C. 165; 41 Digest 374, 2205).
(i) Ellershaw v. Magniac (1843), 6 Exch. 570, n.; 39 Digest 514, 1314; Ogg v.
Shuter (1875), 1 C. P. D. 47, C. A.; 39 Digest 514, 1312; Mirabita v. Imperial
Ottoman Bank (1878), 3 Ex. D. 164, C. A.; 39 Digest 520, 1357 (where the
property was held to pass on a tender of the price). But if the intention to pass
the property at the time of shipment is otherwise clear, the fact that the bill
of lading is taken in the seller's name may be disregarded (Joyce v. Swann
(1864), 17 C. B. (N. s.) 84; 41 Digest 370, 2161; The Parchim, [1918] A. C. 157,
P. C.; 39 Digest 517, 1344).
(k) The Argentina, supra; cf. Gurney v. Behrend (1854), 3 E. & B. 622; 41
Digest 385, 2297.
(1) All the parts of a set need not be tendered (Sanders v. Maclean (1883),
11 Q. B. D. 327, C. A.; 41 Digest 395, 2373). The tender must be made with
896 SHIPPING AND NAVIGATION. [Vol. XXX.
SECT. 2. indorsed (m), accompanied by a bill of exchange for the price drawn
Bills of upon the buyer (n). In this case the indorsement of the bill of
Lading. lading to the buyer is to be regarded as conditional only (o), and the
property in the goods does not pass to the buyer unless he accepts
the bill of exchange (p). He cannot, therefore, keep the bill of
lading (q), or claim delivery of the goods as against the seller (r),
without accepting the bill of exchange (s). If, however, he retains
possession of the bill of lading, its transfer to a person who takes it
bona fide and for value gives the transferee a good title to the goods
as against the true owner, notwithstanding the buyer's failure to
accept the bill of exchange (t).
due diligence, but need not be in time to enable it to be forwarded to the destina-
tion of the goods before the arrival of the ship (Sanders v. Maclean (1883), 11
Q. B. D. 327, C. A., per BRETT, M.R., at p. 336; 41 Digest 395, 2373). Nor
must the tender be delayed till the ship has arrived (E. Clemens Horst Co. v.
Biddell Brothers, [1912] A. C. 18; 39 Digest 575, 1801).
(m) As to what documents are to be tendered, see Landauer & Co. v. Craven
and Speeding Brothers, [1912] 2 K. B. 94; 39 Digest 577, 1811; and see, further,
on this point and as to the performance of a c.i.f. contract generally, title SALE
OF GOODS, Vol. XXIX., pp. 214 et seq., and the cases there cited. The acceptance
of the bill of exchange on the faith of a letter advising the consignee of a con-
signment of goods is not equivalent to the indorsement of the bill of lading
(Nichols v. Clent (1817), 3 Price, 547; 41 Digest 390, 2344).
(n) When the bill of lading includes other goods, the buyer may by his conduct
estop himself from refusing to accept the bill of exchange on the ground that
the other goods have been included (Imperial Ottoman Bank v. Cowan (1874),
31 L. T. 336, Ex. Ch.; 41 Digest 389, 2336).
(o) It is not necessary for the seller to give express notice that the indorse-
ment is conditional (Shepherd v. Harrison (1871), L. R. 5 II. L. 116; 39 Digest
520, 1355). But the indorsement is not to be regarded as conditional if the
consignee is, as between the consignor and himself, under no duty to accept the
bill of exchange (Ogle v. Atkinson (1814), 5 Taunt. 759; 39 Digest 516, 1331;
Depperman v. Hubbersty (1852), 17 Q. B. 766; 41 Digest 389, 2335; Key v.
Cotesworth (1852), 7 Exch. 595; 39 Digest 518, 1346).
(p) Brandt v. Bowlby (1831), 2 B. & Ad. 932; 39 Digest 521, 1364; Shepherd
v. Harrison, supra; of. Walley v. Montgomery (1803), 3 East, 585; 41 Digest
397, 2415. Until acceptance the property remains in the seller, even though
the buyer has promised to accept the bill of exchange and his promise has been
acted upon (Hoare v. Dresser (1859), 7 H. L. Cas. 290; 41 Digest 389, 2338).
The property passes on the acceptance, notwithstanding that the bill of exchange
is never honoured (Re Tappenbeck, Ex parte Banner (1876), 2 Ch. D. 278, C. A.;
41 Digest 389, 2340), unless there is a special stipulation that the bill of exchange
is to be paid (Barrow v. Coles (1811), 3 Camp. 92; 39 Digest 516, 1329). If
the bill of lading is not handed over to the buyer after acceptance of the bill of
exchange he may bring an action for its wrongful detention (Hoare v. Dresser,
supra; Lutscher v. Comptoir d'Escompte de Paris (1876), 1 Q. B. D. 709; 41
Digest 388, 2327).
(q) Rew v. Payne, Douthwaite & Co. (1885), 53 L. T. 932; 39 Digest 521, 1358.
(r) Ogg v. Shuter (1875), 1 C. P. D. 47, C. A. ; 39 Digest 514, 1312; Bew v.
Payne, Douthwaite & Co., supra; Sheridan v. New Quay Co. (1858), 4 C. B.
(N. s.) 618; 39 Digest 519, 1354; but see Anderson v. Clark (1824), 2 Bing.
20; 39 Digest 517, 1336 (where on the facts it was held that the shipment was
for the buyer's account).
(s) Notwithstanding a refusal to accept the bill of exchange, he becomes
entitled to the goods if he afterwards tenders the price (Mirabita v. Imperial
Ottoman Bank (1878), 3 Ex. D. 164, C. A.; 39 Digest 520, 1357).
(t) Gurney v. Behrend (1854), 3 E. & B. 622; 41 Digest 385, 2297; Cahn v.
 PART VII.-CARRIAGE OF GOODS. 897
(3) The seller may draw a bill of exchange for the price upon the SECT. 2.
buyer and discount it with a banker, at the same time indorsing the Bills of
bill of lading to the banker as security (u). In this case the buyer Lading.
is not entitled to the bill of lading, and the property in the goods

(
does not pass to him, until he has repaid (a) or tendered (b) to the ing to bank.
banker the amount due under the bill of exchange (c).
567. Where the transfer of the bill of lading is intended to pass Mortgage
only a qualified property in the goods specified in the bill of lading, and pledge.
it may operate either by way of mortgage or by way of pledge (d).

Pockett's Bristol ChannelSteam Packet Co., [1899] 1 Q. B. 643, C. A.; 39 Digest 519,
1352, distinguishing Shepherd v. Harrison(1871), L. R. 5 H. L. 116; 39 Digest 520,
1355; cf. Pease v. Gloahec, The Marie Joseph (1866), L. R. 1 P. C. 219; 41 Digest
400, 2465, where after acceptance of the bill of exchange the buyer returned the
bill of lading to the seller to hold as security, and afterwards obtained it from the
seller by fraud. But a sale of the goods without a transfer of the bill of lading
is not sufficient (Sheridan v. New Quay Co. (1858), 4 C. B. (N. s.) 618; 39 Digest
519, 1354). The holder of the bill of exchange has no lien over the cargo in
the absence of a specific appropriation of the cargo to meet the bill: a direction
in the bill of exchange to charge it to the account of the cargo as advised, accom-
panied by a letter of advice, is not sufficient to create a lien (Brown, Shipley & Co.
v. Kough (1885), 29 Ch. D. 848, C. A.; 41 Digest 391, 2350, criticising Frithv.
Forbes (1862), 4 De G. F. & J. 409; 41 Digest 390, 2346) ; see also Bobey & Co.'s
Perseverance Ironworks v. Ollier (1872), 7 Ch. App. 695, 699; 6 Digest 298,
1986; Phelps, Stokes & Co. v. Comber (1885), 29 Ch. D. 813, C. A.; 41 Digest
391, 2349; Be Suse, Ex parte Dever (1884), 13 Q. B. D. 766, C. A.; 41 Digest
390, 2348.
(u) Turner v. Liverpool Docks Trustees (1851), 6 Exch. 543, Ex. Ch.; 39 Digest
514, 1316; Be Howe, Ex parte Brett (1871), 6 Ch. App. 838; 41 Digest 392,
2353. As to the rights of the banker on a loss when the goods are insured and
the policy is aiso handed over to him, see Latham v. Chartered Bank of India
(1874), L. R. 17 Eq. 205; 41 Digest 392, 2355. If the bill of lading is in the
buyer's name the property has passed to the buyer, but the seller, by retaining
physical possession of the bill of lading, retains his lien, and may transfer the
lien to the bank (London Joint Stock Bank v. British Amsterdam Maritime
Agency (1910), 16 Com. Cas. 102; 41 Digest 393, 2357).
(a) Bristol and West of England Bank v. Midland Rail. Co., [1891] 2 Q. B.
653, C. A.; 41 Digest 398, 2435.
(b) Mirabitav. Imperial Ottoman Bank (1878), 3 Ex. D. 164, C. A.; 39 Digest
520, 1357, distinguishing Wait v. Baker (1848), 2 Exch. 1; 39 Digest 488, 1075.
But a tender on the day when the bill of exchange falls due is not sufficient if
the buyer is subsequently unable to pay (Jenkyns v. Brown (1849), 14 Q. B.
496; 39 Digest 514, 1310). As to tender, generally, see title CONTRACT, Vol.
VII., pp. 197 et seq.
(c) Cf. title SALE OF GOODS, Vol. XXIX., pp. 93, 94. The banker does not, by
presenting the bill of exchange for acceptance, warrant that the bill of lading
is genuine (Leather v. Simpson (1871), L. R. 11 Eq. 398; 6 Digest 161, 1035
(where the forgery was not discovered till after payment); Baxter v. Chapman
(1873), 29 L. T. 642; 6 Digest 161, 1036 (where the forgery was discovered before
payment and it was held that the acceptor was bound to pay)).
(d) Sewell v. Burdick (1884), 10 App. Cas. 74; 41 Digest 372, 2186. Where
the shipowner is part owner of the goods specified in the bill of lading, a pledge
of the bill of lading with his consent operates also as a pledge of the freight due
upon such goods, unless expressly excluded (Grote v. Milne (1811), 4 Taunt.
133; 41 Digest 388, 2320). As to mortgage and pledge, generally, see titles
BILLS OF SALE, Vol. III., pp. I et seq.; MORTGAGE, Vol. XXIII., pp. 217 et seq.,
PAWNS AND PLEDGES, Vol. XXV., pp. 1 et seq.
 SHIPPING AND NAVIGATION. [Vol. XXX.
SECT. 2. The question whether the transaction is to be regarded as a mort-
Bills of gage or as a pledge depends upon whether the parties intended to
Lading. transfer to the transferee the legal interest or only the equitable
interest in the goods (e). Where the bill of lading is indorsed in
blank and deposited as security for an advance, the transaction is
a pledge (f). The pledgor is not divested of all his interest in the
goods (g) ; but the pledgee is entitled to claim delivery of them (h),
and, if necessary, to sell them in order to realise his security (i).
The right of an unpaid seller to stop the goods in transit is not
defeated by a transfer of the bill of lading by way of mortgage or
pledge, but it can only be exercised subject to the rights of the
mortgagee or pledgee (k).
Transfers 568. A transfer of the bill of lading, though purporting to pass
passing no the property in the goods, in factfpasses no property in them to the
property. transferee in the following cases, namely :-
(1) Where the transfer is made without consideration (1). To be
valid, the transfer must be made for valuable consideration (m). A
past consideration is, however, sufficient (n).
(2) Where the transfer is made to a transferee who, being aware
of circumstances making the transfer inoperative, such as, for
instance, the insolvency of the buyer through whom he claims (o),
or a breach of faith on the part of the transferor (p), cannot,

(e) Sewell v. Burdick (1884), 10 App. Cas. 74, per Lord BLACKBURN, at pp. 95,
96; 41 Digest 372, 2186, citing Howes v. Ball (1827), 7 B. & C. 481 ; 39 Digest
642, 2383, and Flory v. Denny (1852), 7 Exch. 581.
(f) Sewell v. Burdick, supra.
(g) The Glamorganshire(1888), 13 App. Cas. 454, P. C.; 41 Digest 388, 2326;
Re Westzinthus (1833), 5 B. & Ad. 817; 39 Digest 633, 2304.
(h) Bristol and West of England Bank v. Midland Rail. Co., [1891] 2 Q. B. 653,
C. A.; 41 Digest 398, 2435.
(i) Cf. Depperman v. Hubbersty (1852), 17 Q. B. 766; 41 Digest 389, 2335;
Edwards v. Southgate (1862), 10 W. R. 528; 41 Digest 590, 4140.
(k) Kemp v. Falk (1882), 7 App. Cas. 573; 39 Digest 635, 2308, applying Re
Westzinthus, supra, and Spalding v. Ruding (1843), 6 Beav. 376; 39 Digest
634, 2305; see title SALE OF GOODs, Vol. XXIX., p. 182.
(1) Sewell v. Burdick, supra, per Lord SELBORNE, L.C., at p. 80.
(m) CharteredBank of India, Australia and China v. Henderson (1874), L. R.
5 P. C. 501 ; 41 Digest 396, 2402 (where a forbearance to take proceedings and
a release from an existing obligation to deposit shipping documents was held
to be sufficient); Cuming v. Brown (1808), 9 East, 506; 41 Digest 395, 2386;
of. Glegg v. Bromley, [1912] 3 K. B. 474, C. A.; 12 Digest 212, 1702; and, as
to consideration generally, see title CONTRACT, Vol. VII., pp. 136 et seq.
(n) Leask v. Scott (1877), 2 Q. B. D. 376, C. A.; 12 Digest 215, 1741, not
following Rodger v. Comptoir d'Escompte de Paris (1869), L. R. 2 P. C. 393;
12 Digest 183, 1392 (where a forbearance to insist on an existing right was held
insufficient); The Emilien Marie (1875), 2 Asp. M. L. C. 514; 41 Digest 384,
2294; Pease v. Gloahec, The Marie Joseph (1866), L. R. 1 P. C. 219; 41 Digest
400, 2465.
(o) Cuming v. Brown, supra; Vertue v. Jewell (1814), 4 Camp. 31; 39 Digest
Digest 631, 2281; cf. Salomons v. Nissen (1788), 2 Term Rep. 674; 39 Digest
633, 2302 (where the transferee by a subsequent agreement became a partner
with the transferor in the particular shipment).
(p) Pease v. Gloahec, The Marie Joseph, supra, at p. 228.
 PART VII.-CARRIAGE OF GOODS. 399

therefore, be regarded as a bona fide holder (q). It is not sufficient SECT. 2.

to show that the transferee knows that the goods specified in the Bills of
bill of lading have not been paid for (r). Moreover, where a person Lading.
who has obtained the property in the goods and possession of the
bill of lading by a voidable (as distinct from a void) title transfers
the bill of lading (with intent to pass the property in the goods)
to a transferee, who takes it for value and without notice of the
infirmity in the transferor's title, the property in the goods passes
to the transferee (s).
(3) Where the transferor has himself no property in the goods (t),
and has no authority to deal with the property in them (u). A
person who has already sold the goods apart from the bill of lading
cannot afterwards, by dealing with the bill of lading, transfer any
property in them to the transferee (a). Similarly, where one part
of a bill of lading drawn in a set has already been transferred with
the intention of passing the property in the goods, the transferor
has divested himself of all property in them, and the subsequent
transfer of another part to another person does not pass any
property to him (b).
SUB-SECT. 6.-The Effect of the Transfer of a Bill of Lading (c).
569. Where the bill of lading is delivered to the consignee named Bills of
therein, or is transferred by indorsement to an indorsee, with the Lading Act,
intention of passing the property in the goods specified therein (d),
(q) Wright v. Campbell (1767), 4 Burr. 2046; Dick v. Lumsden (1793), Peake,
250 [189]; 41 Digest 395, 2381.
(r) Cuming v. Brown (1808), 9 East, 506; 41 Digest 395, 2386. Where,
however, the bill of lading bears a special indorsement to the transferor making
the goods deliverable to hinm if he should accept and pay a bin of exchange,
and, if he should not do both, to the holder of the bill of exchange, the transferee
is put upon inquiry and must ascertain that the condition has been fulfilled
(Barrow v. Coles (1811), 3 Camp. 92; 39 Digest 516, 1329).
(s) The Argentina (1867), L. R. 1 A. & E. 370; 41 Digest 386, 2310; Pease
v. Gloahec, The Marie Joseph (1866), L. R. 1 P. C. 219; 41 Digest 400, 2465;
Jenkyns v. Usborne (1844), 7 Man. & G. 678; 41 Digest 369, 2154; cf. title
SALE OF GOODs, Vol. XXIX., pp. 108-110.
(t) Gurney v. Behrend (1854), 3 E. & B. 622, per Lord CAMPBELL, C.J., at
p. 634; 41 Digest 385, 2297; Finlay v. Liverpool and Great Western Steamship
Co. (1870), 23 L. T. 251 ; 41 Digest 410, 2553; cf. Gilbert v. Guignon (1872), 8
Ch. App. 16; 41 Digest 385, 2302.
(u) Gurney v. Behrend, supra.
(a) London Joint Stock Bank v. British Amsterdam Maritime Agency (1910),
16 Coin. Cas. 102, per CHANNELL, J., at p. 105; 41 Digest 393, 2357; cf. Dick
v. Lumsden, supra.
(b) Barber v. Meyerstein (1870), L. R. 4 H. L. 317 ; 41 Digest 394, 2371;
and see p. 392, ante; title SALE OF GOODs, Vol. XXIX., p. 96.
(c) See note (b), p. 373, ante.
(d) The Freedom (1871), L. R. 3 P. C. 594; 41 Digest 416, 2600; Fox v.
Nott (1861), 6 H. & N. 630, 637; 41 Digest 398, 2429; The St. Cloud (1863), 8
L. T. 54; 41 Digest 402, 2490; see also title SALE OF GOODs, Vol. XXIX.,
p. 95. As to the rights of suit under the Admhiralty Court Act, 1861 (24 & 25
Vict. c. 10), s. 6 (see now Judicature Act, 1925 (15 & 16 Geo. 5, c. 49), s. 22 (1)),
see The Nepoter (1869), L. R. 2 A. & E. 375; 41 Digest 425, 2670. As to what
is sufficient evidence of the intention to pass the property, see Dracachi v.
Anglo-Egyptian Navigation Co. (1868), L. R. 3 C. P. 190; 41 Digest 394, 2370.
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 Multimodalism and Through Transport-
Language, Concepts, and Categories
D. Rhidian Thomas*

I. FIRST THOUGHTS ...................................... 761

A. Multimodal Transport. ........................ 763
B. How Is "Through Transport"To Be Understood?...........767
1. A Distinct Category? .......................... 767
2. What Is Not "Through Transport"? ....... ....... 768
3. The Essential Nature of Through Transport.................. 769
4. Characterisation a Question of Construction ................ 770
5. Through Transport and the International
Conventions ............................ 774
II. A FINAL COMMENT ..................................... 775

I. FIRST THOUGHTS
The legal framework of international multimodal transport is
tangled and complex, primarily because of the failure to agree on a
discreet international convention.' By contrast, agreement has been
reached on several international and regional unimodal transport
regimes.! Consequently, the legal position relating to those regimes
enjoys greater clarity and certainty, but none is wholly free of difficulties.
It is also obvious that the logistics of international multimodal transport

* C 2012 D. Rhidian Thomas. Emeritus Professor of Maritime Law, Founder Director

of the Institute of International Shipping and Trade Law, Swansea University, Wales, U.K.
1. See, e.g., United Nations Convention on International Multimodal Transport of
Goods, May 24, 1980, U.N. Doc. TD/MT/Conf/16 [hereinafter Multimodal Convention].
2. See, eg., United Nations Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea, G.A. Res. 63/122, Annex, U.N. Doc. A/RES/63/122 (Feb. 2,
2009) [hereinafter Rotterdam Rules]; United Nations Convention on the Carriage of Goods by
Sea, Mar. 31, 1978, 1695 U.N.T.S. 3 [hereinafter Hamburg Rules]; International Convention
Concerning International Carriage of Goods by Rail, Feb. 7, 1970, 1101 U.N.T.S. 224;
Convention on the Contract for the International Carriage of Goods by Road, May 19, 1956, 399
U.N.T.S. 189, amended by Protocol to the Convention on the Contract for the International
Carriage of Goods by Road, July 5, 1978, 1208 U.N.T.S. 427; Convention for the Unification of
Certain Rules Relating to International Carriage by Air, Oct. 12, 1929, 49 Stat. 3000, 137
L.N.T.S. 11; International Convention for the Unification of Certain Rules Relating to Bills of
Lading, Aug. 25, 1924, 51 Stat. 233, 120 L.N.T.S. 155 [hereinafter Hague Rules], amended by
Protocol To Amend the International Convention for the Unification of Certain Rules of Law
Relating to Bills of Lading, Feb. 23, 1968, 1412 U.N.T.S. 121 [hereinafter Hague-Visby Rules].
761
762 TULANE MARJTIME LA WJOURNAL [Vol. 36:761

manifest a greater and more varied number of performance operations

than international unimodal transportation, a factor which further
contributes to the prevailing legal and commercial complexity.
In relation to international multimodal transport, there is also a less
settled usage as to the appropriate defining language, with such phrases
as "multimodal transport," "combined transport," "through transport,"
and "intermodal transport" used interchangeably and somewhat loosely.'
In the defunct United Nations Convention on International Multimodal
Transport of Goods of 1980 (Multimodal Convention), reference is made
to "multimodal transport." This mode of description appears to be
increasingly followed in linguistic usage; though, as a perusal of texts,
journals, and law reports will readily confirm, the alternatives are far
from disappearing.!
The same comment can be made about the drafting and description
of transport documents. The language adopted in relation to
international multimodal transport bills of lading and waybills,
predominantly sea waybills, is again varied. The Multimodal Convention
alludes to "multimodal transport documents," which may be issued in
"negotiable" or "nonnegotiable" form.' A number of representative
examples may also be extracted from current documentary practice in
international trade and commerce. MULTIDOC 95 is described as a
"Negotiable Multimodal Transport Bill of Lading" and its sea waybill
equivalent MULTIWAYBILL 95 as a "Multimodal Transport Waybill";
COMBICONBILL is described as a "Negotiable Combined Transport
Bill of Lading" and its nonnegotiable equivalent COMBICONWAYBILL
as a "Combined Transport Sea Waybill"; and CONLINEBILL 1978
contains provisions that state that they are "Applicable only when
document used as a Through Bill of Lading."'
The question raised in this Article is whether the variety of language
observable in the sources, commentaries, and documentation is at all
relevant to comprehension and categorisation. Does it indicate
conceptual differences and so assist in our understanding of the subtleties
of the law, in drawing vital lines of demarcation, in identifying and

3. See generallySTEWART C. BOYD ETAL., ScRurrON ON CHARTER PARTIES AND BILLS OF

LADING 369 (20th ed. 1996).
4. SeeMultimodal Convention, supm note 1,pmbl.
5. See, e.g., GUENTER TREITEL & F.M.B. REYNOLDS, CARVER ON BILLS OF LADING (2d
ed. 2005). Surprisingly, no reference is made in this text to "through bills of lading" nor is there
any such mention in the Rotterdam Rules.
6. See Multimodal Convention, supra note 1,arts. 1(4), 6, 7.
7. For sample copies of these and other bills of lading, see Bills ofLadng,BIMCO.ORG,
https://www.bimco.org/en/Chartering/Documents/Bills-ofLading.aspx (last visited Apr. 1,2012).
2012] OST COLLOQUIUM MLETIODAL TRANSPORT 763

distinguishing different categories of transportation and transportation

documents, and in ascertaining their distinctive legal significance? Or,
more simply, is it a symptom of indolence and indifference, a reflection
of a wider societal sloppiness to language and the correct use of words,
and thus of no particular legal significance? This question has particular
relevance to the use and understanding of the descriptive words "through
transport'" and addressing this question will be the main focus of this
Article. But first a brief comment on the concept of multimodalism.

A. Multfnodal Transport
The logistical and legal concept of international multimodal
transport is very clear, and the definition provided in article 1(1) of the
Multimodal Convention is both succinct and useful:
"International multimodal transport" means the carriage of goods by at
least two different modes of transport on the basis of a multimodal
transport contract from a place in one country at which the goods are taken
in charge by the multimodal transport operator to a place designated for
delivery situated in a different country.'
The definition then proceeds to state negatively: "The operations of
pick-up and delivery of goods carried out in the performance of a
unimodal transport contract, as defined in such contract, shall not be
considered as international multimodal transport."' In the proposed
Rotterdam Rules, which, if adopted, would apply to multimodal transport
when a sea leg is included, article 1(1) provides a more economic
definition of "Contract of Carriage" that is intended to embrace both port
to port and place to place transport. It provides: "'Contract of Carriage'
means a contract in which a carrier, against the payment of freight,
undertakes to carry goods from one place to another. The contract shall
provide for carriage by sea and may provide for carriage by other modes
of transport in addition to the sea carriage."o
These and similar definitions shed light on the logistical nature of
multimodal transport but do not fully illuminate the analytical nature of
the legal concept. Looking at multimodalism in the round, there would
appear to exist several essential elements:
(1) a contract to carry from place to place-the multimodal transport
contract;

8. Multimodal Convention, supra note 1, art. 1(1).

9. Id
10. Rotterdam Rules, supm note 2, art. 1(1).
764 TULANE M4RITIME LAWJOURNAL [Vol. 36:761

(2) at least two different modes of transport involved in the

performance of the contract;
(3) the multimodal transport contract's coverage of the entire
performance of the carriage from place of receipt to place of
delivery;
(4) the issuance of a multimodal transport document by the contractual
carrier (multimodal transport operator) to the shipper, which
evidences, iter aha, the contractual obligations of the carrier with
respect to the entire carriage;
(5) the contractual carrier's benefit of an express or implied liberty to
subcontract the whole or any part of his contractual obligations; and
(6) the contractual carrier's assumption of responsibility for the entire
carriage, even when actually performed in whole or part by another
carrier, the actual carrier.
These criteria emphasise the entirety of the performance obligation of the
contractual carrier from collection to delivery and that the transport
document issued by the contractual carrier to the shipper provides
evidence of this entire obligation. The contract is between the
contractual carrier and shipper, who act as principals, and this primary
legal relationship is unaffected by the fact that the contractual carrier may
not actually perform the whole or any part of the carriage contemplated
by the contract." The contractual carrier will invariably possess an
express or implied right to subcontract the whole or any part of the
contractual performance, but throughout remains contractually
responsible to the shipper for any loss or damage that occurs to goods in
the possession of a subcontractor. 2 When subcontracting, the contractual
carrier is acting as principal and not as agent on behalf of the shipper. In
turn, the subcontract may be the basis of a recourse action if the shipper
sues the contractual carrier." There is no direct contractual nexus
between the shipper and subcontractor, but in exceptional circumstances
a tortious relationship may come into existence, in which event the
subcontractor may be able to take the benefit of a Himalaya clause 4 or
the doctrine of subbailment on terms."

11. See, e.g., Multimodal Convention, supm note 1, art. 15.

12. See, e.g., id. art. 16.
13. See, eg., id.
14. See, e.g., Scruttons Ltd. v. Midland Silicones Ltd., [1962] A.C. 446 (H.L.) at 466,
474,496 (Eng.).
15. See, eg., E.W Corp. v. DKBS 1912, [2003] EWCA (Civ) 83, [49]-[50], [2003] 1
Lloyd's Rep. 239, 255 (Eng.); The Pioneer Container, [1994] 2 A.C. 324 (P.C.) at 327 (appeal
taken from H.K.) (Eng.).
2012] OSTCOLLOQUUM MULTBMODAL TRANSPORT 765

To the same effect, the transport document issued by the contractual

carrier to the shipper will cover the entire contractual performance and
exists independently of any transport document that may be issued by
subcontractors to the contractual carrier.16 It also follows that under a
multimodal contract, there will only be a single shipment point that
corresponds to the place where the shipper transfers the goods to the
contractual carrier for shipment."
The Rotterdam Rules vary this analytical model marginally by
requiring one of the modes of transport to be a sea leg." The Tokyo
Rules of 1969 embodied the same restriction."
In practice, multimodal transport documents will either be bespoke
or adaptable, capable of being utilised for either port-to-port sea
transport, or place-to-place multimodal transport. Whatever the precise
format of the document, it will usually reveal its categorisation by
requiring information about pre- and on-carriage, such as "place of
receipt'" "place of delivery," and, more rarely, the identity of the pre-
and/or on-carrier. But this approach must be conducted cautiously
because the form of a document is neither conclusive of its actual
categorisation nor that of the contract to which it relates. There is always
the danger that a transport document may not be what it first appears to
be on its face.
The CONLINEBILL 2000 provides an example of this danger.
Clause 8, titled, "Liability for Pre- and On-Carriage," provides:
When the Carrier arranges pre-carriage of the cargo from a place other
than the Vessel's Port of loading or on-carriage of the cargo to a place other
than the Vessel's Port of discharge, the Carrier shall contract as the
Merchant's Agent only and the Carrier shall not be liable for any loss or
damage arising during any part of the carriage other than between the Port
of loading and the Port of discharge even though the freight for the whole
carriage has been collected by him.20
The clause makes it clear that what is contemplated is not multimodal
transportation and that the document is not a multimodal transport
document. The pre- and on-carriage, when arranged by the carrier, are

16. See, e.g., Multimodal Convention, supanote 1, art. 1(4).

17. The shipment point may be of crucial importance in determining the applicable law,
particularly in regard to the application of an international convention.
18. See Rotterdam Rules, supra note 2, art. 1(1).
19. See Comit6 Mar. Int'l [CMI], DraR Convendon on Combied Tnport Rome
Version January 1970, reprintedin I J.MAR. L. & COM. 651 (1970).
20. CONLJNEBILL 2000, cl. 8, BIMCO.oRG, https://www.bimco.org/Chartering/Docu
ments/Bills ofLading/CONLINEBILL2000.aspx (select "Sample copy of CONLINEBRL
2000 (PDF)" hyperlink) (last visited Apr. 1,2012).
766 TULANE MARITIME LA WJOURNAL [Vol. 36:761

entered into as an agent of the shipper. The carrier does not assume the
responsibility of a principal but through the agency relationship
establishes a new contractual nexus between the shipper and the
principals, who agree to perform the pre- and on-carriage, on the
presumption that different principals are engaged.2 1 In this circumstance,
there will be three distinct and separate contracts of carriage and at least
two modes of transport, which does not amount to multimodalism.
An interesting question of categorisation also arises under the
Rotterdam Rules, which, as previously observed, apply to both port-to-
port and place-to-place contracts, provided there is a sea leg. Subject to
the restrictive requirement of a sea leg, the Rotterdam Rules therefore
apply to a multimodal contract that is within the terms and conditions of
the Rules and in respect of which a multimodal transport document may
be issued.22
It is also possible to identify, embodied in the Rotterdam Rules,
what may be described as a tacit multimodal contract, even where the
parties have contracted on a port-to-port basis.23 It arises in this way: the
Rotterdam Rules widen the period of responsibility of carriers beyond
that provided successively in the Hague Rules and Hamburg Rules. The
relevant provision is set out in article 12(1): "The period of
responsibility of the carrier for the goods under this Convention begins
when the carrier or a performing party receives the goods for carriage
and ends when the goods are delivered."24 There is no geographical
restriction embodied in this rule, and given its ordinary and natural
language, it suggests that from the moment the carrier "receives goods
for carriage"-wherever that may be, even if it is outside the port of
loading-the Rules are incepted, even though the contract has been made
on a port-to-port basis and a corresponding transport document issued.25
And by parity of reasoning, the contract thereafter continues to be
applicable until the ultimate place of delivery, even if it is located outside
and beyond the port of discharge. Although the parties have contracted
on a port-to-port basis, the contract actually performed is multimodal in
nature nonetheless, it appears that the Rules will apply to the entire
performance and not only the sea leg, without the engagement of the
specific provisions relating to multimodal transport.26 This is not a

21. See id
22. See Rotterdam Rules, supra note 2, arts. 1(1), 5.
23. See id art. 12(1).
24. Id. Compare id, with Hague Rules, supm note 2, art. 3, and Hamburg Rules, supra
note 2, art. 4.
25. See Rotterdam Rules, supra note 2, art. 12(1).
26. See id arts. 26, 82.
2012] OST COLLOQUIUM MULTMODAL TRANSPORT 767

multimodal contract as envisaged by the Rotterdam Rules, which appears

to be a contract expressly agreed by the parties to be on place-to-place
terms.
It may be that this kind of situation is unlikely to arise frequently,
but it is a warning to carriers by sea to be cautious about how they
perform their port-to-port contracts. It may be considered that to contract
on port-to-port terms eliminates the risk of liabilities arising under the
Rotterdam Rules with respect to pre- and on-carriage services, but this
perception may be undermined where such services are performed
incidentally to a port-to-port contract, without additional charge and in
the absence of a special contractual arrangement.
If this speculation proves to be correct, the author suspects that this
result would amount to an unintended consequence. This conjecture
does not appear to be affected by article 5 of the Rotterdam Rules, which
specifies the scope of application of the rules, because the reference there
to places of loading and delivery is an allusion to such places when stated
in the contract of carriage.27 In the proposed factual situation, the
contract for carriage is founded on a port-to-port basis. However, in the
contemplated situation, if an agent receives and/or delivers the goods on
behalf of the contractual carrier, it would appear that the agent would not
be a maritime performing party within the meaning of the Rotterdam
Rules.28
The kind of situation just considered cannot arise under the Hague
Rules, which apply tackle to tackle,29 or under the Hamburg Rules, which
apply from the time the carrier takes charge of the goods at the port of
loading until it ceases to be in charge of the goods at the port of
destination."

B. How Is "Through Transport"To Be Understood?

Against the background of this outline analysis of multimodalism,
the question arises as to how the words "through transport" are to be
understood.

1. A Distinct Category?
Many transport documents adopt the words "through transport" to
describe conventional multimodal transport and where the words are

27. Id.art. 5.
28. See id. art. 1(7), (9).
29. Hague Rules, supra note 2, art. 1(e).
30. Hamburg Rules, supra note 2, art. 14.
768 TULANE MARITIME LA WJOURNAL [Vol. 36:761

used as an alternative to "combined transport" or any other linguistic

description adopted in practice. There is little doubt that the words
"multimodal transport," "combined transport, and other alternatives are
different linguistic formulations describing the same concept. The
alternative usage of the words "through transport" to convey this same
meaning is probably gradually dwindling, but it is far from defunct, and
its survival might be perceived as evidence suggesting that the words
"through transport" and "multimodal transport" are descriptive of the
same concept.
This suggestion is challengeable; to the contrary, it is arguable that
there is a distinct category of sea carriage that may be justifiably and
usefully described as "through transport." These words may be adopted
to describe a contract of carriage entered into on a port-to-port basis, but
which involves two or more sea legs. In other words, where the sea
voyage from port to port is not continuous but fragmented into two or
more separate sea legs with interconnecting transhipments, but the
carrier nonetheless entered into a contract and issued a transport
document that covers the entire carrying voyage from the port of loading
to the ultimate port of discharge.

2. What Is Not "Through Transport"?

A through-transport contract of the kind just described does not
arise simply from the fact that the sea carriage is fragmented by
transhipment. The following situations do not amount to through
transport:
(1) Where the port-to-port carriage is fragmented into two or more sea
legs, with each sea leg based on a distinct and separate contract of
carriage between the shipper and each of the carriers. In such a
case, the overall carriage will be performed through two or more
independent contracts of carriage, with each successive carrier
acting as a principal and with separate transport documents issued
or capable of being demanded in respect of each sea leg. Each
successive carrier is only legally responsible for the cargo when it is
in its possession. In such a situation, there will also be two or more
separate ports of shipment and with the matter of transhipment also
to be organized. Although each carrier contracts as a principal, the
initial or preceding carrier may act as agent of the shipper in
2012] OSTCOLLOQUIUM MULTMODAL TRANSPORT 769

arranging the subsequent sea leg and attendant transhipment and

warehousing."
(2) Where, in performing a port-to-port contract, the carrier exercises a
simple right of transhipment. Most sea transport documents give
carriers such a right, and in exercising that right, the carrier may
tranship to another vessel in his own fleet or under his control. This
is done without the necessity of entering into a new contractual
agreement, though some form of transport documentation may be
involved as an aspect of internal management. In such a case,
although the transhipment involves the physical disruption of the
carriage, the carriage is treated as continuous from the original port
of shipment, with the contractual carrier also assuming
responsibility for the transhipment. The transhipment does not
result in the recognition of a second port of shipment.32

3. The Essential Nature of Through Transport

It is suggested that through transport arises in a situation that is a
variant of (2) above." It comes into existence when the carrier contracts
to carry on a port-to-port basis and issues a transport document that
covers the entire carriage.' The carrier thereafter exercises a contractual
right of transhipment coupled with a right to subcontract out any part of
the contractual undertaking." In this circumstance, a distinct contract of
carriage is entered into between the contractual carrier and subcontractor,
who becomes the actual carrier to the extent of his contractual
obligations. A transport document may be issued to the contractual
carrier, and the location of the transhipment becomes the port or place of
shipment in respect of their contract. Notwithstanding the emergence of
a second carrier and the issuance of a transport document to the
contractual carrier, the contractual carrier retains responsibility for the
entire carriage and is therefore responsible to the shipper for any breach
of duty on the part of the subcontracting actual carrier. There exists no
direct contractual link between the shipper and subcontracting actual
carrier, but a legal nexus may exist in tort.

31. See Stafford Allen & Sons Ltd. v. Pac. Steam Navigation Co., [1956] 1 W.L.R. 629
(C.A.) (Eng.).
32. See Ryoden Mach. Co. v. Owners of the Ship Anders Maersk (The Anders Maersk),
[1986] 1 Lloyd's Rep. 483 (H.C.) 486, 1986 AMC 1269, 1271 (H.K.).
33. See id at 485, 1986 AMC at 1271.
34. See id.
35. See, eg., Mayhew Foods Ltd. v. Overseas Containers Ltd., [1984] 1 Lloyd's Rep. 317
(Q.B.) 319 (Eng.).
770 TULANE MARITIME LA WJOURNAL [Vol. 36:761

It is further suggested that this is the strict meaning that should be

attributed to through transport, with the transport document issued also
properly and helpfully described as a through-transport bill of lading or
sea waybill, as the case may be. It follows that the wider use of these
words to connote "multimodal" or "combined" transport is potentially
misleading and unhelpful, and it would be to the general benefit if the
usage fell out of favour.
A transport document, such as CONLINEBILL 2000, appears to
accommodate the kind of characterization herein favoured." Clause 6,
subtitled, "Substitution of Vessel," provides, "The Carrier shall be at
liberty to carry the cargo or part thereof to the Port of discharge by the
said or other vessel or vessels either belonging to the Carrier or others, or
by other means of transport, proceeding directly or indirectly to such
port."" The clause is supplemented by clause 7, titled "Transhipment,"
which provides, "The Carrier shall be at liberty to tranship, lighter, land
and store the cargo either on shore or afloat and reship and forward the
same to the Port of discharge."38
Although clause 6 does not speak in express terms of through
transport or expressly give the carrier liberty to subcontract, this liberty
would seem to emerge clearly from a contextual interpretation of the
clause. The clause permits carriage by a substitute vessel "belonging to
the Carrier or others," and where there are "others," it invariably will be
necessary to enter into a subcontract. When such a subcontract is entered
into, the clause is supported by clause 7, which gives the contractual
carrier an express liberty to tranship."

4. Characterisation a Question of Construction

The precise nature of the carriage contract entered into will depend
on the proper construction of the terms agreed on by the parties, taking
into account the contract in its entirety and the commercial context of the
contract. There are numerous possible contractual variations, many of
which are potentially complex and extend beyond the confined
boundaries of this Article.
The precise issue herein addressed may be illustrated and developed
by examining the dispute that arose on the facts in JL Mac William Co. v
Mediterranean Shipping Co. (The Rafaella S).' One of the questions

36. See CONLINEBILL 2000, supranote 20, cl. 6.

37. Id.
38. Id.cl. 7.
39. See id. cls. 6-7.
40. [2002] EWCA (Civ) 556, [2003] 2 Lloyd's Rep. 113 (Eng.).
2012] OSTCOLLOQUIUM. MULTIMODAL TRANSPORT 771

raised in this significant case was whether the parties had entered into
one or two contracts for the carriage of four containers from Durban,
South Africa, to Boston, Massachusetts.' The commercial context of the
carriage was a cost, insurance, and freight (CIF) Boston sale contract
between shippers and consignees of a quantity of printing machinery
shipped in four containers. A straight bill of lading was issued by the
carriers Mediterranean Shipping Co. (MSC) at Durban in common form
with boxed information set out on its face and standard conditions
printed on the reverse side. When certain conditions were satisfied, the
bill described itself as a "through Bill of Lading."'2
The containers were carried on the M/V ROSEMARY from Durban
to Felixstowe, England, where they were discharged and thereafter shipped
on the M/V RAFAELLA S, also owned by MSC, for carriage to Boston.
In respect to the second sea leg, a transport document was not issued.43
During the course of the voyage from Felixstowe to Boston, it was
alleged that the goods had been badly damaged, and following the
submission of the dispute to arbitration in London, a preliminary
question was set down for determination by the English Commercial
Court. After assuming MSC's liability, the question before the
Commercial Court was whether MSC's right to limit liability was
governed by the Hague-Visby Rules or the U.S. Carriage of Goods by
Sea Act (COGSA). This, in turn, raised the question of whether the
containers had been carried to Boston under one entire contract with
Durban being the port of loading or under two separate contracts with
Felixstowe being the port of loading with regard to the second contract.
If it were the former, COGSA applied, if the latter, the Hague-Visby
Rules applied."
With regard to the straight bill of lading issued at Durban, the boxed
information, beyond identifying the sellers and buyers as shippers and
consignees respectively, indicated the following facts:

41. Id., at [6], [2003] 2 Lloyd's Rep. at 116. The case also decided that a straight bill of
lading is a document of title within the meaning of article 1(b) of the Hague-Visby Rules, given
the force of law by the United Kingdom's Carriage of Goods by Sea Act 1971.
42. Id. at [2]-[3], [12], [2003] 2 Lloyd's Rep. at 115-17.
43. See id at [2]-[3], [2003] 2 Lloyd's Rep. at 116.
44. Id at [4], [2003] 2 Lloyd's Rep. at 116.
772 TULANE MARITIME LA WIOURNAL [Vol. 36:761

Vessel: Rosemary
Port of Loading: Durban
Port of Discharge: Felixstowe
Final destination (If [filled out] this is a Boston
Through Bill of Lading (see clause 3)):
On-carriage: [left blank]
Freight: [left blank]
Freight payable at: Destination

Additionally, two stamped annotations on the bill stated, "On-Carriage to

BOSTON to be arranged by M.S.C. Agents" and "Cargo to be cleared by
U.S. Custom at port of discharge."46
Clause 3 on the reverse side of the bill provided:
SUBSTITUTION OF VESSEL, THROUGH TRANSPORT,
TRANSSHIPMENT, AND FORWARDING. The Carrier agrees to carry
the goods from the Port of Loading to the Port of Discharge, and shall have
the right at its sole discretion to substitute other vessels, feeder-ships,
lighters or other modes of transport for the vessel named herein (Box 6). If
boxes 5 and/or 9 are filled out, the Carrier will, acting as shipper's agent,
only arrange for transport of the cargo by other carriers from the place of
origin to Port of Loading and/or from Port of Discharge to destination, and
during such segments of Through Transport, handling and storage of the
goods shall be subject to the freight contracts and tariffs of the other
carriers. It is expressly understood that the Carrier's liability as "carrier'
applies only from the Port of Loading to Port of Discharge under this B/L,
and only while the goods remain in its actual custody and control, whether
as Carrier or bailee . . ..

The arbitrators considered the transport document to be a "classic

through transport bill," covering the entire carriage from Durban to
Boston.48 In their opinion the effect of clause 3 was to confer on MSC an
option; MSC could either complete the second leg itself or delegate the
obligation to another carrier. On the facts, it had chosen the first course,
thereby establishing one entire contract.49
On appeal to the courts, the justice at first instance (Commercial
Court) and the Court of Appeal took different approaches, but both
concluded that the proper construction of the contract in its commercial
context was that the parties had agreed that the carriage was to be
performed under two contracts of carriage, the first from Durban to

45. Id. at [12], [15], [2003] 2 Lloyd's Rep. at 117.

46. Id. at [16], [2003] 2 Lloyd's Rep. at 117-18.
47. Id.at [17], [2003] 2 Lloyd's Rep. at 118.
48. Id at [18], [2003] 2 Lloyd's Rep. at 118.
49. See id
2012] OST COLLOQUIUM MULTIMODAL TRANSPORT 773

Felixstowe and the second from Felixstowe to Boston, with the second
contract to be arranged by MSC.so Lord Justice Rix, in the Court of
Appeal, determined that clause 3, read in association with the boxed
information, set out clearly the obligations and rights of MSC. It made
clear that MSC, beyond the obligation to arrange for the on-carriage, had
no responsibility for carrying the cargo beyond Felixstowe." Lord
Justice Rix concluded:
[A]lthough MSC was contracted to arrange on-carriage to Boston, it was
not contracted to carry the machinery to Boston until it entered into a new
arrangement at some stage ... to on-carry the goods from Felixstowe. That
was a separate contract of carriage, which entitled the shipper to demand a
bill of lading . . .52
In reaching this conclusion, it was accepted that the reference in clause 3
to transport by "other carriers" enabled MSC to decide to carry the
containers itself on the second voyage to Boston.13 The crucial
consequence of this reasoning was that Felixstowe was identified as the
port of shipment with regard to the second voyage, and as it was a U.K.
port, it followed that the Hague-Visby Rules applied and governed the
rights of limitation of MSC. 54
This case in many ways confirms the loose use of the words
"through transport" that has previously been commented upon. The
arbitrators, on their construction of the facts, considered that the bill was
a "classic through transport bill,"" which, on the basis of the approach
adopted in this Article, it was not. And the reference to "through
transport" in clause 3 on the reverse side of the bill was again, on the
basis of the view of matters developed in this Article, a misuse of those
words.56 The construction adopted by the Court of Appeal that the
voyage was to be performed in two contractually independent sea legs,
with two distinct ports of shipment, and with the right to a transport
document for each sea leg, was again indicative that it was not a strict
through-transport situation."

50. See id. at [l8]-[19], 25]-[271, 12003] 2 Lloyd's Rep. at 118-20.

51. Id.at [27], [2003] 2 Lloyd's Rep. at 120.
52. Id.
53. Seeid at [25], [2003] 2 Lloyd's Rep. at 120.
54. Id at [28], [2003] 2 Lloyd's Rep. at 120.
55. Id at [18], [2003] 2 Lloyd's Rep. at 118.
56. Id at [17], [2003] 2 Lloyd's Rep. at 118.
57. Id.at [8], [2003] 2 Lloyd's Rep. at 117.
774 TULANE MARITIME LA WJOURNAL [Vol. 36:761

5. Through Transport and the International Conventions

The international conventions have taken little or no account of
through transport as herein defined. This is true of the Hague Rules,
though the application of the Rules to the transhipment of cargo has
arisen for decision and with the Rules held to apply." The Hamburg
Rules are a little more interesting because although "through transport"
is again not expressly identified in the definitions set out in article 1,
nonetheless article 11, subtitled "Through carriage," sets out a specific
rule in the following terms:
1. Notwithstanding the provisions of paragraph 1 of article 10, where a
contract of carriage by sea provides explicitly that a specified part of
the carriage covered by the said contract is to be performed by a
named person other than the carrier, the contract may also provide
that the carrier is not liable for loss, damage or delay in delivery
caused by an occurrence which takes place while the goods are in the
charge of the actual carrier during such part of the carriage.
Nevertheless, any stipulation limiting or excluding such liability is
without effect if no judicial proceedings can be instituted against the
actual carrier in a court competent under paragraph 1 or 2 of article
21. The burden of proving that any loss, damage or delay in delivery
has been caused by such an occurrence rests upon the carrier.
2. The actual carrier is responsible in accordance with the provisions of
paragraph 2 of article 10 for loss, damage or delay in delivery caused
by an occurrence which takes place while the goods are in his
charge.59
In the above provisions, "through carriage" is conceived of as a port-to-
port contract coupled with a right to subcontract any part of the carriage,
which corresponds with the approach adopted in this Article. However,
for the clause to apply, the subcontract must be specified in the contract
of carriage and the subcarrier also identified by name,' which would not
necessarily represent usual practice. If this condition is satisfied, the
contractual carrier may exclude liability for loss, damage, or delay
arising when the goods are in the care or control of the subcontractor,
who occupies the position of actual carrier. The burden of proof in this

58. See Mayhew Foods Ltd. v. Overseas Containers Ltd., [1984] 1 Lloyd's Rep. 317
(Q.B.) 320 (Eng.) (Bingham, J.) ("[T]he rights and liabilities under the rules attach to a contract
[between ports; the contract was for carriage by sea]. If during that carriage [the carrier] chose to
avail themselves of their contractual right to discharge, store and tranship, those were, in my
judgment, operations 'in relation to and in connection with the carriage of goods by sea in ships',
to use the language of the Act . . . .").
59. Hamburg Rules, supa note 2, art. I1(1).
60. See id.
2012] OSTCOLLOQUIMl- MULTIMODAL TRANSPORT 775

regard is on the contractual carrier." The exclusion, however, is subject

to a proviso that the shipper can maintain a claim at law against the
subcontractor in a competent court as specified in the Hamburg Rules.62
If this proviso is satisfied, the responsibilities and rights of the actual
carrier correspond with those of the contractual carrier under the Rules,
but if the proviso is not satisfied, the contractual carrier remains
responsible, with contractual and actual carriers jointly and severally
liable." A significant feature of the Hamburg Rules is that they impose
parallel responsibilities on contractual and actual carriers.'
This provision in the Hamburg Rules helps to make sense of clauses
such as clause 6 of CONLINEBILL 1978, which provides:
The responsibility of the Carrier shall be limited to the part of the transport
performed by him on vessels under his management and no claim will be
acknowledged by the Carrier for damage or loss arising during any other
part of the transport even though the freight for the whole transport has
been collected by him.65
This clause appears to be somewhat casually drafted; but when
considered in the context of article 11 of the Hamburg Rules, it is
possible to divine the drafter's intention. At the same time, the clause
would not automatically satisfy the conditions in article 11, because the
intention to subcontract and the identity of the subcontractor would have
to be identified somewhere in the contractual documentation, though
presumably not necessarily in the transport document. The reference to
the receipt of freight is made necessary by the fact that the receipt of the
whole freight by the contractual carrier would be some evidence of an
intention to assume responsibility for the entire voyage. By contrast,
such a clause under the Hague Rules would be void."

II. A FiNAL COMMENT

The global reach of container transport provided by international
corporate logistics providers, with its emphasis on place-to-place
carriage, ancillary services, speed, efficiency, flexibility, and competitive
pricing, has radically changed the landscape of international commercial
transportation. Multimodalism, with its integral container terminals, hub

61. Id.
62. Id.arts. 11(1), 21(1)-(2).
63. Seeid.art.10.
64. See id.
65. COALINEBJLL 1978, cl. 6, MARrTME SuN, http://www.maritimesun.com/news/wp-
content/uploads/2010/08/conlinebilloflading.pdf (last visited Apr. 1,2012).
66. See Hague Rules, supra note 2, art. 3(8).
776 TULANE MARITIME LA WJOURNAL [Vol. 36:761

ports, feeder and on-shipping services, occupies a dominant position and

has increasingly subordinated the sea leg to just one of two or more
different modal legs. It was this reality that the Rotterdam Rules
attempted to confront. Transport confined wholly to the sea on a port-to-
port basis is predominantly, but not wholly, confined to bulk cargoes and
commodity trading. It follows that multimodalism and through transport,
as analysed in this Article, are primarily associated with liner transport
and containerisation.
Although not directed at multimodal transport generally, the Hague
Rules and the Hamburg Rules at least recognise that sea transport may be
but one leg in a multimodal transport contract, and when this occurs,
each provides that the promulgated rules apply to the sea leg only." This
is to give implicit recognition to the network of legal regulation of
multimodal contracts. The Rotterdam Rules attempt to take matters
forward significantly by seeking to regulate both port-to-port contracts
and place-to-place contracts with a sea leg." This may be desirable, but it
is nonetheless an ambitious strategy and far from certain to succeed.
By contrast, the extant international unimodal conventions have
virtually turned a blind eye to through transport, notwithstanding their
focus on port-to-port contracts." The Hague Rules have nothing to say
about the concept; even transhipment receives no express mention. The
Hamburg Rules go a little further but have no real interest in the concept
beyond attempting to validate a practice that appears to have developed
in transport documents, namely, excluding liability for breach of duty on
the part of subcontractors." The Rotterdam Rules are nothing if not
comprehensive, but through transport has again escaped the net.
All of this is somewhat surprising because the concept and practice
is far from being irrelevant, and its relevance may extend to areas of
commercial practice and law allied to international sea transport. Thus,
under international sale contracts with a documentary ingredient, the
contractual conformity of a through-transport document may come into
issue," as also is the case in relation to documentary credit payment
systems. The International Chamber of Commerce's Umform Customs
andPmctice for Documentary Credit600 (UCP 600) contains an article
specifically relating to multimodal transport documents, but no article

67. See id. art. 1(b); Hamburg Rules, supm note 2, art. 2(1).
68. See Rotterdam Rules, supra note 2, art. 5.
69. See, eg., Hague-Visby Rules, supo note 2.
70. See Hamburg Rules, supranote 2, art. 11.
71. See, e.g., Hansson v. Hamel & Horley, Ltd., [1922] 2 A.C. 36 (H.L.) (Eng.).
2012] OST COLLOQUIUM MULTIMODAL TRANSPORT 777

relating to through transport.72 Nonetheless, the articles relating to bills

of lading and nonnegotiable sea waybills are drafted in terms that are
capable of including corresponding through transport documents."

72. See Uniform Customs and Practice for Documentary Credits 600, art. 19, ICC
Publication No. 600 (2007).
73. See id.
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Citations:

Bluebook 21st ed.

Stephen D. Girvin, Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective, 119 S. AFRICAN L.J. 317 (2002).

ALWD 6th ed.

Girvin, S. D., Carriage by sea: The sea transport documents act 2000 in historical
and comparative perspective, 119(2) S. African L.J. 317 (2002).

APA 7th ed.

Girvin, S. D. (2002). Carriage by sea: The sea transport documents act 2000 in
historical and comparative perspective. South African Law Journal, 119(2), 317-351.

Chicago 17th ed.

Stephen D. Girvin, "Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective," South African Law Journal 119, no. 2 (2002):
317-351

McGill Guide 9th ed.

Stephen D Girvin, "Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective" (2002) 119:2 S African LJ 317.

AGLC 4th ed.

Stephen D Girvin, 'Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective' (2002) 119(2) South African Law Journal 317.

MLA 8th ed.

Girvin, Stephen D. "Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective." South African Law Journal, vol. 119, no. 2,
2002, p. 317-351. HeinOnline.

OSCOLA 4th ed.

Stephen D Girvin, 'Carriage by Sea: The Sea Transport Documents Act 2000 in
Historical and Comparative Perspective' (2002) 119 S African LJ 317

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 CARRIAGE BY SEA:
THE SEA TRANSPORT DOCUMENTS
ACT 2000 IN HISTORICAL AND
COMPARATIVE PERSPECTIVE
STEPHEN D GIRVIN*
Associate Professor,National University of Singapore

INTRODUCTION
During the course of the Second Session 2000, Parliament enacted into
law the Sea Transport Documents Act. 1 This is the latest domestic statutory
reform 2 to affect shipping law in South Africa, though the first for some years
which has a direct bearing on the carriage of goods by sea. 3 While the statute
is a concrete sign of the remarkable vitality of shipping law in South Africa,
it still awaits implementation. 4 Until it is formally brought into force, the
pre-1992 status quo, described in the pages which follow, still applies in South
Africa.5
The purpose of this article is to analyse the new Act in the context of the
work of law reformers and legislators in those other major Commonwealth
trading countries6 which share the same primary legislation, the (UK) Bills of
Lading Act 1855,7 since repealed by the Carriage of Goods by Sea Act 1992. 8
A proper understanding of the significance of these developments in South
Africa and elsewhere can only take place, however, when they are seen in the

* BA LLB LLM (Natal) PhD (Aberdeen), Advocate of the High Court of South Africa.
Act 65 of 2000. See text to note 280. The draft bill (Bill 28B-2000) was introduced in the National
Assembly by the Minister of Transport on 8 May 2000: Department of Transport Notice 1808 GG21158.
See Rob Greenhalgh & Andrew Robinson 'Commentary on recent developments in South Africa'
1997 InternationalJournal of Shipping Law 233 at 234; Shane Dwyer 'South Africa: Legislation - Sea Trans-
port Documents Bill' (1998) 5 (10) International Maritime Law 334; Andrew Pike 'South Africa -Sea
Transport Documents Bill' 1998 InternationalTradeLQ241;JohnHare Shipping Law and AdmiraltyJurisdiction
in South Africa (1999) para 13-5.4.
2 See also South African Maritime Safety Authority Act 5 of 1998; Shipping Law Amendment Act 57
of 1998; Ship Registration Act 58 of 1998; Shipping General Amendment Act 23 ofl 997; Wreck and Salvage
Act 94 of 1996.
3 The Carriage of Goods by Sea Act 1 of 1986 (as amended by the Shipping General Amendment Act 23
of 1997, ss 48-50) is the other principal statute. It enacts the Hague-Visby Rules into South African law,
although South Africa is not a signatory to the diplomatic instruments enacting the Rules (the Brussels
Conventions). See Hilton Staniland 'The new Carriage of Goods by Sea Act in South Africa' 1987 Uoyd's
Maritime & Commercial LQ 305.
4 Section II provides that the Act will come into force on a date to be fixed by the President by
proclamation in the Government Gazette.
5 See text to note 10.
6 Canada is currently the only leading Commonwealth country which still applies the 1855 Act. See
text to note 260.
7 17 & 18 Vict, c 111 ('the 1855 Act').
8 c 50 ('the 1992 Act'): s 6(2), with effect from 1 September 1992. See text to note 157.
318 THE SOUTH AFRICAN LAW JOUR.NAL

context of the earlier law and, no less importantly, the commercial nilieu
within which the legal principles operate. Further, it must be appreciated that
the contract of carriage, which is the focus of this paper, is simply one of a
matrix of contracts which will be negotiated when goods are transported by
9
sea.

REASONS FOR REFORM: APPLICABLE LAW

The 1855 Act applies in South Africa by virtue of s 6 of the Admiralty
Jurisdiction Regulation Act of 1983.10 This notoriously bifocal provision, 11
in what is otherwise an innovative Act, requires a court vested withjurisdiction
over maritime claims 12 (a) where the matter is one in which a Colonial Court
of Admiralty had jurisdiction immediately before the commencement of the
Act 13 to apply the law which the English High Court exercising its Admiralty
jurisdiction would have applied in such a matter at the commencement of
the Act, in so far as that law can be applied; (b) so far as other matters are
concerned, to apply the Roman-Dutch law applicable in South Africa. Thus,
to determine the applicable law it is necessary to enquire whether the matter
was previously within the Admiralty jurisdiction of the South African courts.
The Colonial Court of Admiralty Act 189014 provided that the heads of
jurisdiction were those specified in the Admiralty Court Act 184015 and the
7
Admiralty Court Act 1861.16 Under the latter, the English Admiralty Court'
had jurisdiction
'... over any Claim by the Owner or Consignee or Assignee of any Bill of Lading of any
Goods carried into any Port in [South Africa] in any Ship, for Damage done to the Goods
or any Part thereof by the Negligence or Misconduct of or for any Breach of Duty or Breach
of Contract on the Part of the Owner, Master or Crew of the Ship .... 18

9 The international sale contract is the one around which all others ultimately pivot: see David M
Sassoon C.I.Fand FO.B. Contracts 4 ed (1995); A G Guest (ed) Benjamin's Sale of Goods 5 ed (1997); Charles
Debattista The Sale of Goods Carried by Sea 2 ed (1998); Michael Bridge The InternationalSale of Goods: Law
and Practice (1999);Leo D'ArcyCarole Murray& Barbara Cleave SchmitthoffsExpor Trade:The Law and Practice
of InternationalTrade 10 ed (2000).
10 Act 105 of 1983 (as amended). See Gys Hofmeyr 'Admiralty jurisdiction in South Africa' 1982 Acta
Juridica 30; Clare Dillon & J P van Niekerk South African Maritime Law and Marine Insurance: Selected Topics
(1983) chap 1; DJ Shaw QC AdmiraltyJurisdictionandPracticeinSouth Africa (1987); Hare op cit note I chap 2.
11 H Booysen 'South Africa's new Admiralty Act: A maritime disaster' 1984 Modem Business Law 75; C F
Forsyth 'The conflict between modem Roman-Dutch law and the law of Admiralty as administered by the
South African courts' (1982) 99 SALJ 255; Shaw op cit note 10 chap 7;J P van Niekerk 'An introduction
to the carriage of goods by sea' (1993) 5 SA Mercantile LJ 78; Hare op cit note 1 para 1-7.
12 That is, each provincial and local division of the High (formerly Supreme) Court of South Africa:
s 2(1). In practice, the majority of such claims are initiated in the Durban & Coast Local Division of the
High Court and the High Court in Cape Town.
13 The Act commenced on 1 November 1983. See Alan Rycroft 'Changes in South African Admiralty
jurisdiction' 1984 Lloyd's Maritime and Commercial LQ 417; Hilton Staniland 'The implementation of the
Admiralty Jurisdiction Regulation Act in South Africa' 1985 Lloyd's Maritime and Commercial LQ 462.
14 53 & 54 Vict, c 27: s 2(2). See CivilAdmiraltyJurisdictionAustralian Law Reform Commission Report
No 33 (1986) para 20 ('ALRC Report'); Hofineyr op cit note 10 at 44; Shaw op cit note 10 chap 1.
15 3 & 4 Vict, c 65.
16 24 & 25 Vict, c 10. See F L Wiswall Jnr The Development of Admiralty Jurisdiction and Practice Since
1800 (1970).
17 The Admiralty Court was incorporated into the Probate, Divorce and Admiralty Division of the High
Court in 1875 (Supreme Court ofJudicature Act 1873, 36 & 37 Vict, c 66, s 31(5)). In 1970 this Division
was abolished (Administration ofJustice Act 1970, c 31) and Admiralty business transferred to the Queen's
Bench Division of the High Court (ss 1(3), 2).
18 Section 6.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 319

Thus, on 1 November 1983,19 bills of lading were within the competence of

the English High Court and so s 6(a) applied. Though never explicitly tested
in a South African court, 20 it is generally agreed that a court would have had
to apply the 1855 Act despite the fact that it was never enacted in South Africa.
This outcome is just one of the unsatisfactory features of s 6. In so far as the
1855 Act was passed to remedy privity of contract problems under English
law, which are not such a significant feature of South African law 21 - or of
Scots law 22 - it has always seemed illogical that South African lawyers should
have recourse to English legislation to detemiine the transfer of rights and
obligations to consignees or endorsees under bills of lading. The problem has
been further exacerbated because other modem sea transport documents now
in use 23 are not covered by the 1855 Act (and were also not within the
contemplation of the 1840 and 1861 Admiralty Court Acts) and so would
have to be dealt with by the 'Roman-Dutch law applicable in South Africa'. 24

REASONS FOR REFORM: THE COMMERCIAL CONTEXT

25
Trading
International trade by sea is the lifeblood of the economies of all countries
with maritime boundaries and, to a marked extent, those that are land-
locked. 26 The last fifty years of the twentieth century were characterized by
profound changes in the way that this trade was conducted. Technological
advancements, reflected in the building of larger and more sophisticated
vessels, made possible the carriage of an increasingly diverse range of cargoes
and effected a revolution in carriage practices. 27 In particular, containeriza-
tion, 28 the possibility of moving large volumes of cargo seamlessly between

19 That is, the date of commencement of the 1983 Act. See note 13.
20 See, however, First National Bank of Southern Africa Ltd v Kien Hung Shipping SA (Pty) Lad [1994] 3
CLD 98 (W) at 103.
21 Because of the possibility ofa stipulatio alteri (as it is usually known in South Africa): see S D Girvin
'Third party rights under shipping contracts in English and South African law' (1997) 9 SA Mercantile LJ 97
at 115; R H Christie The Law of Contract in South Africa 4 ed (2001) 300-11.
22 The same concept (known there asjus quaesitum tertio) exists:see W W McBryde The Law of Contract
in Scotland (1987) chap 18; E M Clive 'JusQuaesitum Tertio and carriage of goods by sea' in D L Carey Miller
& D W Meyers (eds) Comparative and Historical Essays in Scots Law (1992) 47; The Laws of Scotland: Stair
Memorial Encyclopaedia vol 15 (1996) para 847.
23 See text to note 33.
24 As, in all likelihood, would charterparties. See J P van Niekerk 'Marine insurance claims in the
Admiralty Court: An historical conspectus'(1994) 6 SA Mercantile LJ26 at 56; Graham Girdwood 'An analysis
of the law applicable to charterparty disputes in terms ofsection 6(1) ofthe AdmiraltyJurisdiction Regulation
Act' (1995) 7 SA Mercantile LJ 301; Hare op cit note 1 para 13-1. But cf Hilton Staniland 'What is the law
to be applied to a charterparty dispute?' (1992) 109 SALJ 528.
25 Forthe wider commercial contextsee ThomasJ Schoenbaum Admiralty and Maritime Law 2 ed (1994)
para 10-1; Hare op cit note 1 para 12-1.1.
26 See 'Maritime transport statistics - 1999'published by the Organisation of Economic Co-operation
and Development (OECD) at www..oecd.org
27 See Alan E Branch Elements of Shipping 7 ed (1996) chaps 2 & 3; Patrick M Alderton Sea Transport:
Operation and Economics 4 ed (1995) chaps 2 & 3; Martin Stopford Maritime Economics 2 ed (1997) chap 2.
28 See Japan Line Ltd v Los Angeles County 441 US 434 (1979) at 436: 'A container is a permanent reusable
article of transport equipment ... durably made of metal, and equipped with doors for easy access to the
goods and for repeated use. It is designed to facilitate the handling, loading, stowage aboard ship, carriage,
discharge from ship, movement, and transfer of large numbers of packages simultaneously by mechanical
means to minimise the cost and risks of manually processing each package.' See Stopford op cit note 27
chap 10. For technical details, see Norman Milard lloyd's Survey Handbook 7 ed (1999) chap 3, Appendix 4.
320 THE SOUTH AFRICAN LAW JOURNAL

different modes of carriage 29 - sea, rail, road, or air - has led to reductions
in transit time, loss, damage, and theft in comparison to traditional break-bulk
carriage of goods. 30 In the case of bulk commodities, a much wider range,
both dry and wet, 31 are now transported around the globe and sold many
times while at sea. 32 These technological advances placed strains on legal
principles which were developed in response to the very different pattern of
trading in the nineteenth century.

33
Documents
34
For many shippers and sellers and their overseas buyers, goods are shipped
35
aboard a vessel owned or chartered by another. A contract of carriage will
36
usually be issued by the shipowner or contracting carrier for this purpose.

37
(a) Bill of lading

The bill of lading is, in practice, issued to the shipper by the carrier once
the goods are in transit, 38 and has been at the centre stage of international
transport for centuries. 39 Its precise origins are shrouded in obscurity; indeed,
there was originally no need for a written document of carriage because the

29 See Edward Schmeltzer & Robert A Peavy 'Prospects and problems of the container revolution'
(1969-70) 1 Journal of Maritime Law & Commerce 203; David M Sassoon 'Trade terms and the container
revolution' (1969-70) 1 Journal of Maritime Law & Commerce 73;James H Porter 'Multimodal transport,
containerization, and risk ofloss' (1984) 25 VirginiaJournalof InternationalLaw 171; MarvaJo Wyatt 'Contract
terms in intermodal transport: COGSA comes ashore' (1991) 16 Tulane Maritime LJ 177;Joseph Monteiro
& Gerald Robertson 'Shipping conference legislation in Canada, the European Economic Community and
the United States: Background, emerging development, trends and a few major issues' (1999) 26 Transportation
LJ 141.
30 A break-bulk shipment is one 'in which each item of cargo must be handled separately and stored
individually in the hold of the ship as it waits in port': NortheastMarine Terminal Co Inc v Caputo 432 US 249
(1977) at 270.
31 Stopford op cit note 27 chap 9.
32 See text to note 122.
33 See F J J Cadwallader 'New documents for old' in Edgar Gold & Norman G Letalik (eds) New
Directions in Maritime Law 1980 (1980) 121; Hugo Tiberg 'Legal qualities of transport documents' (1998) 23
Tulane Maritime LJ 1. Useful collections of standard form shipping documents may be found in: Michael
Bundock (ed) Shipping Law Handbook 2 ed (2000); David Glass, Paul Todd & Malcolm Clarke (eds) Standard
Form Contractsfor the Carriageof Goods (2000); Forms of Approved Documents (BIMCO, 2000).
34 Responsibility for making the shipment arrangements invariably rests on the shipper (seller) or
overseas buyer and depends upon the sale contract. For the standard terms in use see Incoterms 2000;
Jan Ramberg ICC Guide to Incoterms 2000 (1999).
35 A significant proportion of shipping tonnage is under charter, whether voyage, time, or demise
(sometimes known as bareboat) chartered. See Harvey Williams Chartering Documents 4 ed (1999).
36 See Nicholas Gaskell et al Bills of Lading: Law and Contracts (2000) chap 3.
37 See, for example, Conlinebill (a liner bill of lading) and Congenbill (for use with charterparties). On
the topic of bills of lading, see particularly S C Boyd, D Foxton & A S Burrows Scrutton on Charterparties
20 ed (1996); Gaskell op cit note 36; Sir Guenter Treitel & F M B Reynolds Carver on Bills of Lading (2001).
38 A 'shipped' (or 'on board') bill of lading. The carrier may, however, issue a bill oflading on receipt of
the goods: a 'received for shipment' (or 'alongside') bill of lading. The latter, though not within the custom
established in Lickbarrow v Mason (1794) 5 TR 683 [101 ER 382],and hence not transferable as a document
of title (see text to note 101),is not usually acceptable to banks for the purposes of documentary credits. See
UCP 500 art 23; Debattista op cit note 9 para 3-12; D'Arcy, Murray & Cleave op cit note 9 para 15-025;
RaymondJack et al Documentary Credits 3 ed (2001) para 8.78.
39 'These Bills of lading are commonly to be had in Print in all places, and several languages': Gerald
Malynes Consuetudo vel Lex Mercatoria (1685) 97. See too Lendalease Finance Ltd v Corp de Mercadeo Agricola
1976 (4) SA 464 (A) at 492.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 J21

40
shipper sailed with the ship. This was inconvenient, given the length of time
that the goods could be in transit and so, over time, a contract of carriage
41
came to be issued.
It is now universally accepted that bills of lading can fulfil three functions,
as a matter of law: 42 they are a receipt 43 for the goods, 44 give evidence of the
terms of the contract of carriage and, 45 provided certain conditions are
fulfilled, they can function as a document of title. 46 As a matter ofEnglish law,
the bill of lading also evidences a bailment, 47 with the carrier who has issued
48
the bill of lading as the bailee and the consignee as bailor.
However, for consignees and endorsees, possession of a bill of lading did
not, until the 1855 Act, give any right to sue the carrier in the event of loss
or damage to the goods. 49 That Act also applied only to bills of lading and
was inapplicable to sea waybills, non-negotiable 0 bills of lading, ship's delivery
orders, mate's receipts and booking notes, which are now widely used, but
which are not documents of title. Further, at the time that the 1855 Act was
passed, computer technology and electronic data interchange (EDI) were
undreamed-of possibilities.

40 See Daniel E Murray 'History and development of the bill of lading' (1983) 37 University of Miami
LR 689; Boris Kozolchyk 'Evolution and present state of the ocean bill of lading from a banking law
perspective' (1992) 23Journalof Maritime Law & Commerce 161; Michael D Bools The Bill of Lading (1997)
chap 1.
41 See Garavelli & Figli v Gollach & Gomperts (Ply) Ld 1959 (1) SA 816 (W) at 820-1.
42 See Lendalease Finance (Pry) Ltd v Corporacion de Mercadeo Agricola (1976) 4 SA 464 (A) at 491-2;
Intercontinental Export Co (Pry) Lid v MV Dien Danielsen 1983 (4) SA 275 (N) at 276; Primesite Outdoor
Advertising (Pry) Lid v Salviati & Santori (Pry) Lid 1999 (1) SA 868 (W) at 875-6; F R Malan & W Faul 'Some
aspects of bills of lading' (1989) 1 SA Mercantile LJ 322; Hare op cit note 1 para 14-3.
43 See Boyd, Foxton & Burrows op cit note 37 art 57, Gaskell op cit note 36 para 7.4, Treitel & Reynolds
op cit note 37 chap 2.
44 For early examples, see Reginald G Marsden (ed) Select Pleas in the Court ofAdmiralty (Selden Society,
vol VI, 1894) 126.
45 See Boyd, Foxton & Burrows op cit note 37 art 33, Gaskell op cit note 36 para 2.15,Treitel & Reynolds
op cit note 37 chap 3, Owners of the Cargo Lately Laden on Board the MV Menalon v MV Menalon 1995 (3) SA
363 (D). The bills of lading do not perform this function when the carrier issues the bills to the charterer
because the contractual terms are then embodied in the charterparty: see Gledstanes v Allen (1852) 12 CB
202 [138 ER 879]; Sewell v Burdick (1884) 10 App Cas 74 (HL) at 105; Rodocanachi Sons & Co v Milburn Bros
(1886) 18 QBD 67 (CA) at 75; TheAl Battani [1993] 2 Lloyd's Rep 219 at 222.
46 See text to note 101.
47 As to bailment, see especially N E Palmer Bailment 2 ed (1991).
48 See Bryans v Nix (1839) 4 M & W 775 [150 ER 16341; Evans v Nickol (1841) 3 M & G 614 [133 ER
1286]. And see Simon Baughen 'Bailment's continuing role in cargo claims' 1999 Lloyd's Maritime& Commercial
LQ 393.
49 See text to note 117.
50 Sometimes also known as 'straight'bills of lading. See Georgios Zekos &Jo Carby-Hall 'Sea waybills:
A new marketing name for straight bills of lading' (1994) 96 B Diritto Marittimo 714; Schoenbaum op cit
note 25 para 10-11; Parsons Corp v CV Scheepvaartondememing Happy Ranger (f7le Happy Ranger) [2001] 2
Lloyd's Rep 530.
322 THE SOUTH AFRICAN LAW JOURNAL

51
(b) Sea waybills
Sea waybills perform two of the three functions of bills of lading: they are
documents which contain or evidence the contract of carriage and are receipts
for the goods. 52 Such documents are prominent in those liner trades 53 where
the shipper and buyer of the goods do not require a negotiable document of
title. 54 Unlike bills of lading, sea waybills do not change hands, because they
are not usually used to pay for the goods. The principal advantages are (i) that
the shipper can vary his delivery instructions to the carrier at any time during
transit, 55 and (ii) that there is no problem with the ship arriving ahead of the
56
documents and so the ship can discharge the cargo at once.

57
(c) Ship's delivery orders
Ship's delivery orders were developed in order to respond to a particular
commercial need. In the case of the shipment of bulk goods the seller will
often sell parts of the bulk cargo to a number of different buyers while the
goods are at sea. This is problematic where. there is a single bill of lading
covering the whole consignment. The seller cannot give the bill to each of
the buyers to secure delivery at the discharge port. Accordingly, he can make
provision for the right to tender a ship's delivery order in respect of each of
the smaller parcels constituting the whole. 58 If issued by the seller to the buyer,
the delivery order does not confer any rights against the carrier without an

51 See Rights of Suit in Respect of Carriage of Goods by Sea Law Corn No 196; Scot Law Corn No 130
(1991) para 5.6 ('Law Commission Report'); Richard Williams 'Waybills and short form documents: Alawyer's
view' 1979 Lloyd's Maritime & Commercial LQ297; William Tetley Marine Cargo Claims 3 ed (1988) chap 45;
WilhamJ Coffey 'Multimodalism and the American carrier' (1989) 64 Tulane LR 569 at 588;John F Wilson
'Legal problems at common law associated with the use of the sea waybill' (1989) 91 l1Diritto Marittimo 115;
Charles Debattista 'Waybills: conclusive evidence with respect to details of the cargo' (1989) 91 II Diritto
Marittimo 127; Gordon Humphreys & Andrew Higgs 'Waybills: A case of common law laissez faire in
European commerce' 1 992Journalof Business Law 453; Debattista op cit note 9 para 2-21; Hare op cit note I
para 12-1.2.4; Treitel & Reynolds op cit note 37 para 8-001.
52 See, for example, Combiconwaybill ('Combined Transport Sea Waybill'); Genwaybill ('Non-
negotiable General Sea Waybill);Linewaybill ('Non-negotiable Liner Sea Waybill); Multwaybill ('Multimodal
Transport Waybill'); P & 0 Nedlloyd Waybill ('Non-Negotiable Waybill for Combined Transport Shipment
or Port to Port Shipment').
53 It was once estimated that as much as 70 per cent of all hner goods on the North Atlantic route were
carried on sea waybills: Lord Lloyd 'The bill oflading: Do we really need it?' 1989 Lloyd's Maritime & Commercial
LQ 47 at 49; Branch op cit note 27 at 48.
54 Browner InternationalLtd v Monarch Shipping Co Ltd (The European Enterprise) [1989] 2 Lloyd's Rep
185 at 187: 'It is the invariable practice of all English cross channel operators not to issue bills of lading for
the cross channel Ro-Ro ferry trade. Instead, they issue commercial non-negotiable receipts' (per Steyn J).
55 Though the same result would follow if the bill of lading were issued and had not been transferred
(see Mitchell v Ede (1840) 11 Ad & El 888 [113 ER 651], Elder Dempster Lines v Zaki Ishag (The Lycaon) [1983]
2 Lloyd's Rep 548; Numill Marketing CC v Sitra Wood ProductsPte Ltd 1994 (3) SA 460 (C) at 475). This would
clearly not follow if the bill of lading had already been transferred.
56 See text to note 334.
57 See Nigel Teare 'Ship's delivery orders'1976 Lloyd's Maritime & Commercial LQ 154; Law Commission
Report op cit note 51 para 5.25; Debattista op cit note 9 para 2-33; Treitel & Reynolds op cit note 37
para 8-027.
58 For a contractual example, see the Grain and Free Trade Association (Gafta) 100, cl 14.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 323

attornment 59 by the carrier.60 However, such documents are usually issued by

shipowners' agents addressed to the master or chief officer or other persons 61
authorizing delivery to the holder or to the order of a named person. It
would not be possible for the holder to sue the carrier under the 1855 Act,
although there appears to be some recognition in the case law that it would
be possible for an implied contract 62 to arise where the holder, when presenting63
the delivery order, furnishes some consideration,such as the payment of freight.

64
(d) Mate's receipts

A mate's receipt is a document issued by the chief mate after the cargo has
65
been loaded on board the vessel, acknowledging receipt of the goods. This
66
will be sufficient to make the carrier responsible for the goods unless the
67
carrier can prove conclusively that they were never delivered to the ship.
Possession of the mate's receipt will be evidence that the holder is entitled to
receive a bill of lading on the sailing of the vessel. 68 The carrier is not bound
to insist on the production of a mate's receipt before issuing the formal bill
of lading 69 and is entitled to issue the formal bill of lading to someone other
than the holder of the mate's receipt, if that person proves to be the owner of
the goods.70 Until the bill of lading is issued, the carrier holds the goods on
the terms of its usual bill of lading, at least where the shipper is, or ought to
be, aware of those terms. Unlike a bill of lading, a mate's receipt is not usually
a document of title to the goods shipped and its endorsement or transfer
without notice to the shipowner or his agent will not pass property in the
71
goods.

59 For ownership to pass in South African law, the seller must deliver possession of the goods to the
buyer. One of the ways in which he may do so is through traditio brevi manu, i e where an existing detention
is converted into possession by the addition of the animus possidendi. See Lendalease Finance Ltd v Corp de
Mercadeo Agricola 1976 (4) SA 464 (A) at 489; G RJ Hackwill Mackeurtan's Sale of Goods in South Africa 5 ed
(1984) 68; D L Carey Miller The Acquisition and Protection of Ownership (1986) chap 9.
60 SeeJ &J Cunningham v Guthrie (1888) 26 SLR 208.
61 See Waren Import Gesellschaft Krohn v Internationale Graanhandel Thegra NV [19751 1 Lloyd's Rep 146
at 154; 7Tie Shravan [1994] 4 SLR 197.
62 So named after Brandt v Liverpool, Brazil &River Plate Steam Navigation Co [1924] 1 KB 575 (CA).
See Illyssia Compaiiia Naviera SA v Ahmed Bamaodah (The Elli 2) [1985] 1 Lloyd's Rep 107 (CA); Compania
Portorafti CommercialeSA v UlramarPanama Inc (The Captain Gregos No 2) [19901 2 Lloyd's Rep 395 (CA) at
403; Girvin op cit note 21 at I11; Treitel & Reynolds op cit note 37 para 7-009.
63 Peter Cremer Westfaelische Central Genossenschafi GmbH & fntergraan NVv General CarriersSA (The Dona
Mari) [1973] 2 Lloyd's Rep 366.
6' See Boyd, Foxton & Burrows op cit note 37 art 91; Hare op cit note 1 para 12-1.2.2; Treitel &
Reynolds op cit note 37 para 8-017.
65 Naviera Mogor SA v Sociftd Metallurgique de Normandie (The Nogar Marin) [1988] 1 Lloyd's Rep 412
(CA) at 420.
66 Cobban v Downe (1903) 5 Esp 41 [170 ER 731]. See too Continental Grain Co v American Commercial
Baige Line Co 332 F 2d 26 (7 Cir 1964); ET Barwick Mills Inc v Hellenic Lines Lid 472 F 2d 1406 (5 Cir 1973).
67 Biddulph v Bingham (1874) 2 Asp MLC 225.
(8 Craven v Ryder (1816) 6 Taunt 433 [128 ER 1103]; Schuster v McKellar (1857) 7 El & BI 704 [119
ER 1407].
69 Hathesing v Laing (1873) LR 17 Eq 92.
70 Cowas-Jeev Thompson (1845) 5 Moo PC 165 [13 ER 454].
71 Nippon Yusen Kaisha v Ramjiban Serougee [1938] AC 429 (PC) at 445. It is accepted that mate's receipts
are documents of tide in so far as the carriage of goods by sea between Sarawak and Singapore is concerned:
see Kum v Wahi Tat Batik Lid [1971] 1 Lloyd's Rep 439 (PC).
324 THE SOUTH AFRICAN LAW JOURNAL
72
(e) Booking notes

The parties to a contract of affreightment frequently enter into an

agreement for the transport of goods prior to the goods being loaded aboard
the vessel. As it would be quite impracticable to enter into negotiations at the
quayside, the contractual arrangements for carriage are usually made between
brokers and, once completed, embodied in a liner booking note.7 3 A booking
note usually contains the terms of the contract which will later be found in the
bill of lading, once issued. The Conlinebooking Liner Booking Note provides
that the terms on the reverse will prevail over any previous arrangements and
will 'in turn be superseded (except as to deadfreight and demurrage) by the
terms of the Bill of Lading, the terms of which (in full or in extract) are found
on the reverse side hereof.' The courts will usually infer that a contract of
carriage must have been concluded before or as cargo is tendered and accepted
for shipment on board a vessel. The general rule, in any event, is that the bill
of lading is not conclusive evidence of its terms, 74 though when the bill of
75
lading is endorsed to a consignee it becomes so.

Electronic data interchange (EDI) 76

Rapid advances in computer digital technology in recent years have
77 78
opened up the reality of trading through electronic document interchange.
When administrative costs for paper are said to amount to $420 billion per
79
annum - or seven per cent of the $6 000 billion value of world trade -
it was inevitable that attempts would be made at devising electronic methods
of trading.80 An unsuccessful attempt 81 at designing an electronic bill of lading
system, SeaDocs Registry Limited (SeaDocs), 82 was initiated in the rnid-1980s

72 See Hare op cit note 1 para 12-1.2.1; Peter Brodie Commercial Shipping Handbook (1999) 58.
73 Such as the Conlinebooking Liner Booking Note. See, for example, the booking note in issue in
Nelson Pine Industries Ltd v Seatrans New Zealand Ltd (The Pembroke) [1995] 2 Lloyd's Rep 290.
74 See Crooks vAllen (1879) 5 QBD 38 (CA) at 40; Sewell v Burdick (1884) 10 App Cas 74 at 105;Ardennes
(Cargo Owners) v Ardennes (Owners) [1951] 1 KB 55. The position is unchanged under the 1992 Act. See
Evryalos Maritime Ltd v China PacificInsurance Co Ltd (The Michael S) (Queen's Bench Division, 20 December
2001, unreported).
75 See Glyn, Mills & Co v East & West India Dock Co (1882) 7 App Cas 591 at 596; Bank ofAustralasiav
Clan Line Steamers Lid [1916] 1 KB 39.
76 See Paul Todd 'Dematerialisation of shipping documents' (1994) 9(10)Joumal of InternationalBanking
Law 410; A N Yiannopoulos (ed) Ocean Bills of Lading: Traditional Forms, Substitutes, and EDI Systems (1995);
Diana Faber 'Electronic bills of lading' 1996 lUoyd's Maritime & Commercial LQ 232; Paul Todd Bills of Lading
and Bankers Documentary Credits 3 ed (1998) 152; Robert TJ Bond 'The future of electronic commerce in
international trade'1999 InternationalTradeLQ 15; D'ArcyMurray & Cleave op cit note 9 chap 33; Emmanuel
20 0 0
T Larryea 'Paperless shipping documents: An Australian perspective' Tulane Maritime LJ 255.
7 Banks already do so through SWIFT (The Society for Worldwide Inter-Bank Financial Telecommu-
nications), which was established in 1972 to 'facilitate the transmission of bank-to-bank financial transaction
messages': see wwwswift.com
78 Rule 2(b) of the CMI Rules for Electronic Bills of Lading defines EDI as follows:' "EDI" means
Electronic Data Interchange, i.e. the interchange of trade data effected by tele-transmission.
79 See Robert Caplehom 'Bolero.net -The global electronic commerce solution' (1999) 14(10)
ButterworthsJoumalof International Banking & FinancialLaw 421.
80 See Electronic Data Interchange (UNCITRAL Working Group, 1996): Doc A/CN.9/ WG.IV/WP69.
See wwwuncitral.org
81 For some of the reasons for its failure, see Kathy Love 'SeaDocs: The lessons learned' (1992) 2 Oil &
Gas Law & Taxation Review 53-6.
82 See F L de May 'News' (1985/86) 8 Oil & Gas Law & Taxation Review D93; 'A registry for bills of
lading' (1986/87) 3 Oil & Gas Law & Taxation Review 65.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

by Chase Manhattan Bank and INTERTANKO.83 The Comite Maritime

International (CMI) 84 adopted the CMI Rules for Electronic Bills of Lading
in 1990.85 However, as is also the Case with the CMI Uniform Rules for
Waybills, 86 these Rules are voluntary and do not have the force of law. They
87
are effective only when contracted for between the parties.
88
The Bolero initiative, owned jointly by the Through Transport (TT)
Club 89 and SWIFT,90 is the latest EDI project in the sea transport sphere. It
went 'live' on 27 September 199991 after a period of testing between 1994
and 1998 financed partly by the European Union's 'Infosec Program' and
commercial sponsors. 92 Bolero requires users, who sign up 93 for an annual fee
of between $5 000 and $250 000, to enter into a multi-lateral contract
governed by a Rulebook 94 which binds all trading parties in the system. The
Rulebook is essentially concerned with the standardization of messages,
evidentiary provisions and further contractual duties of the parties and defines
the Bolero Bill of Lading (BBL). This is intended to replicate the functions of
the paper bill of lading.95 There has, inevitablybeen much focus on the ability
of the BBL to transfer title. 96 The essential features of the BBL system provide
for the transfer of constructive possession by attornment 97 and for the transfer
of title by novation. 98 It is possible, at any time before delivery of the goods,
for those concerned to request that the carrier issue a paper bill of lading. 99

83 The International Association of Independent Tanker Owners: wwi .intertanko.com

84 See wuwcomitemaritime.org
85 The Chairman of the International Subcommittee was ProfessorJan Ramberg. See Stasia M Williams
'Something old, something new: The bill of lading in the days of EDI' (1991) 1 Transnational Law &
Contemporary Problems 555; Richard Brett Kelly 'The CMI charts a course on the sea of electronic data
interchange: Rules for electronic bills of lading' (1992) 16 Tulane Maritime LJ 349;Jan Ramberg International
CommercialTransactions (1997) 71 ;John Livermore & Krailerk Euarjai 'Electronic bills of lading: A progress
report' (1997) 28 Journal of Maritime Law & Commerce 55; George F Chandler III 'Maritime electronic
commerce for the twenty-first century' (1998) 22 Tulane Maritime LJ 463.
86 (June 1990). These Rules were the product ofan International Sub-committee chaired by Sir Anthony
Lloyd (as he then was): see Lloyd op cit note 53 at 48. Article 1(ii) provides that: 'They shall apply when
adopted by a contract of carriage which is not covered by a bill oflading or similar document of tide, whether
the contract be in writing or not.
87 Rule 1.
88 See uvwwbolero.net -'Bills of Lading Electronic Registry Orgamsation'or 'Bill oflading for Europe'. See
Matthew Flynn 'Bolero expects to see profits in 2002' Lloyd's List 6 October 2000; Gaskell op cit note 36 at 24.
89 See ivw..club.com 90 See note 77.
91 See Paul Mallon & Anthony Tomlinson 'Bolero: Electronic "bills oflading" and electronic contracts
of sale' 1998 InternationalTrade LQ 257; Caplehom op cit note 79; C C Nicoll 'BOLERO makes the bill of
lading obsolete' (1999) 6(7) InternationalMaritime Law 148; Malcolm Clarke 'A black letter lawyer looks at
BOLERO' 1999 International Trade LQ 69; Richards Butler & Allen & Overy Bolero.net: InternationalLegal
Feasibility Report 2 ed (1999); Mariika Virrankoski 'Bolero.net -- A solution for electronic trade documen-
tation' (2000) 102 11Diritto Marittimo 666; Gaskell op cit note 36 at 25.
92 Electronic Data Interchange (UNCITRAL, 1996) para 79.
93 There are currently more than 30 member companies, including Cargill, Mitsui, K Line, Evergreen,
Chase Manhattan, HSBC, and Citibank:see Andrea Felstead 'System aims to cut down on paperwork' Financial
Times 1 June 2000.
94 See Bolero Rulebook 1 ed (1999) at wvwbolero.net
95 See in nain text above.
96 See text to note 101. 9 See Rule 3.4.
98 Rights and liabilities in the contract ofcarriage between the shipper and carrier are re-made by Bolero
International (on behalf of the carrier) with the new holder. The new holder has all the rights and liabilities
in the original contract, which are now lost to the original shipper except for liabilities that arose prior to
the novation: Rule 3.5.
9 Rule 3.7.
326 THE SOUTH AFRICAN LAW JOURNAL

REASONS FOR REFORM: ENGLISH LAW (TO 1992)100

The bill of lading as a document of title10 1
104
In the important English case
102
of Lickbarrow v Mason,103 a civil jury
recognized a custom of merchants 105 that a bill of lading in which goods were
stated to have been 'shipped by any person or persons to be deliverable to the
order or assigns' 106 enabled the holder, by transferring the bill, to transfer
07 08
the tide in the goods to the transferee.1 Subsequently, in Sanders v Maclean,1
Bowen LJ stated that
'... the bill of lading, until complete delivery of the cargo has been made on shore to
someone rightfully claiming under it, remains in force as a symbol, and carries with it not
only the full ownership of the goods, but also all rights created by the contract of carriage
between the shipper and the shipowner. It is the key which, in the hands of the rightful
owner, is intended to unlock the door of the warehouse, floating or fixed, in which the goods
10 9
may chance to be

This case indicates that the holder of the bill of lading obtains constructive
possession of the goods represented by the paper. He is put in the same
commercial position as if the goods were in his physical possession and he is
entitled to have the goods delivered to him to the exclusion ofothers.l"°At
common law, however, the endorsement of a bill of lading transferred to the
holder only rights of property;Ill it could not transfer to the endorsee or

'00 See Borealis AB v Stargas Lid (The Berge Sisar) [2001] 1 Lloyd's Rep 663 at 668-71.
101 See W P Bennett The History and Present Position of the Bill of Lading as a Document of Title to Goods
(1914); R M Goode ProprietaryRights and Insolvency in Sales Transactions2 ed (1989) chap 4; Boyd, Foxton &
Burrows op cit note 37 art 94; Boots op cit note 40; S Dromgoole & Y Baatz 'The bill oflading as a document
of tide' in N Palmer & E McKendick (eds) Interests in Goods 2 ed (1998) chap 22; Debattista op cit note 9
chap 3; Treitel & Reynolds op cit note 37 chap 6.
102 For Scots law, see The Laws of Scotland: Stair Memorial Encyclopaedia vol 21 (1994) para 566.
103 (1794) 5 TR 683 [101 ER 382],described by Diplock LJ (as he then was) as having'laid the foundation
for the financing of overseas trade and the growth of commodity markets in the 19th century': Barclays Bank
v Customs and Excise [19631 1 Lloyd's Rep 81 (CA) at 88.
104 Juries in civil cases were common until they went into dechne following the passage of the Common
Law Procedure Act 1854, 17 & 18 Vict, c 125.-See J H Baker An Introduction to English Legal History 3 ed
(1990) 109.
105 See too Standard Bank of South Africa Ltd v Efroiken & Newman 1924 AD 171 at 190; Garavelli & Figli
v Gollach & Gomperts (Pty) Ltd (1959) 1 SA 916 (W) at 821.
106 If these words do not appear, then the bill of lading is not transferable: see Henderson v The Comptoire
d'Escompte de Paris (1873) LR 5 PC 253; Melissa (HK) Ltd v P & 0 Nedlloyd (HK) Lid [1999] 3 HKLR 674;
The Chitral[20001 1 Lloyd's Rep 529 at 533.
107 This, in effect, recognized that bills of lading were negotiable instruments, although not in the
technical sense of that word. The endorsee of a bill of lading cannot obtain a better tide to the goods than
the person who has transferred the goods to him: Gurney v Behrend (1852) 3 E & BI 622 at 633-4 [118 ER
1275 at 1279]; Kum v Wah Tat Bank [1971] 1 Lloyd's Rep 439 (PC) at 446. See further A M Tettenborn
'Transferable and negotiable documents of title -A redefinition?' 1991 Lloyd's Maritime & Commercial LQ
538; Debattista op cit note 9 para 2-03.
108 (1883) 11 QBD 327 (CA) at 341.
109 See London and South Africa Bank v Donald Currie & Co (1875) 5 Buch 29 at 34; Clemens Horst (E)
Co v Biddell Bros [1912] AC 18 at 22-3; [191111 KB 934 (CA) at 957; Knight Lid v Lensvelt 1923 CPD 444
at 447;Heskell v ContinentalExpress Ltd (1950) 83 LI LR 438 at 449; Hochmetals Africa (Pty) Ltd v Otavi Mining
Co (Pty) Ltd 1968 (1) SA 571 (A) at 579; Kum v Wah Tat Bank [1971] 1 Lloyd's Rep 439 (PC) at 446; Enichem
Anic SpA v Ampelos Shipping Co Ltd (The Defini) [1990] 1 Lloyd's Rep 252 (CA) at 268.
110 See text to note 334. See also Standard Bank of South Africa Ltd v Efroiken & Newman 1924 AD 171
at 190.
111 Generally on ownership in the context of the sale of goods under South African law, see Hackwill
op cit note 59 chap 3.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 327
112
consignee the rights and obligations arising under a contract of carriage.
1
The reason was the doctrine of privity of contract 13 which, in its strict
form,'1 4 provides that only the original parties to the contract can sue or be
sued on it. 115 Thus a third party, such as the consignee or endorsee of a bill
of lading, could not take the benefit of the term of a contract between two
116
other parties and neither would he be bound by the terms of this contract.
The 1855 Act sought to provide a solution to this inconvenient problem, 117
but in a way which subsequently proved to be extremely problematic,
particularly with the great expansion in overseas trade after 1855.118

Problems' 19
The 1855 Act purported to transfer contractual rights and liabilities to
consignees or endorsees by stipulating that the shipper's rights were assigned
Iupon or by reason of' consignment or endorsement of the bill of lading.
This proved to be unhelpful in commercial practice, especially where the
property1 20 in the goods did not pass to the consignee or endorsee at all (or
passed at a different time to the transfer of the bill of lading) 12 1 and where the
transfer of the bill of lading was not the cause of the passing of property. These
difficulties were highlighted in a number of specific contexts.

112 Thompson v Dominy (1845) 14 M & W 403 at 407-8 [153 ER 532 at 534]; Howard v Shepherd (1850)

9 CB 297 at 319 [137 ER 907 at 916].

113 Generally on this important area, see G H Treitel The Law of Contract 10 ed (1999) chap 15;J Beatson

Anson's Law of Contract 27 ed (1998) chap 10.

114 There are, of course, notable exceptions to this principle, principally the law of agency. See F M B

Reynolds Bowstead and Reynolds on Agency 17 ed (2001).

115 In the shipping area this brought about difficulties in other contexts too. One example is the so-called
'Himalaya' clause, a response to Adler v Dickson [19551 1 QB 158. See D G Powles 'The Himalaya clause'
1979 Loyd's Maritime& Commercial LQ 331;Tetley op cit note 51 chap 36; Girvin op cit note 21 at 106,119;
Hare op cit note 1 para 11 -. 7;Treitel & Reynolds op cit note 37 para 7-047.
116 Now somewhat ameliorated (but not abolished) by the Contracts (Rights of Third Parties) Act 1999,
c 31. This Act was the product of a Law Commission project: Privity of Contract: Contractsforthe Benefit of Third
Parties (1996) Law Corn No 242. See S D Girvin 'The Law Cornunission's draft Contracts (Rights of Third
Parties) Bill and the carriage of goods by sea' 1997 Lloyd's Maritime and Commercial LQ 541; G H Treitel 'The
Contracts (Rights ofThird Parties) Act 1999 and the law of carriage of goods by sea'in Francis D Rose (ed)
Lex Mercatoria: Essays on InternationalCommercial Law in Honour of Francis Reynolds (2000) chap 17; Treitel &
Reynolds op cit note 37 para 7-071.
117 Section 1 provided that '[elvery consignee of goods named in a bill of lading and every endorsee of
a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such
consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to
the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made
with himself'.
118 See, for example, F MB Reynolds 'Reform ofthe Bills of Lading Act' (1990) 106 LQR 1;idem 'The
Bills of Lading Act: Reform nearer?' (1991) 107 LQR 355.
119 These defects are very well documented. See, for example, Charles Debattista Sale of Goods Carried
by Sea I ed (1990) chap 3; Rights to Goods in Bulk Law Commission Working Paper No 112 (1989) para 3.1
('Working Paper No 112'). See also F M B Reynolds 'Bills of lading: Do they have a future?' (1994) 10
Maritime Law Association ofAustralia & New ZealandJournal35.
120 See M G Bridge The Sale of Goods (1997) chap 3; Bridge op cit note 9 chap 10.
121 As in Mitsui & Co Ltd v Novorossiusk Shipping Co (The Gudermes) [1993] 1 Lloyd's Rep 311 (CA),
where the property passed before the endorsement and delivery of the bill of lading. The plaintiff therefore
sought to rely on the common-law remedy of an implied contract but this was refused by the Court of
Appeal, overturning the decision of first instance ([1991] 1 Lloyd's Rep 456). See Fidelma White & Robert
Bradgate 'The survival of the Brandt v Liverpool contract' 1993 Lloyds Maritime & Commercial LQ 483; Simon
Baughen 'The Gudermes: What future for Brandt v Liverpool?' 1994Jounal of Business Law 62.
328 THE SOUTH AFRICAN LAW JOURNAL
122
(a) Bulk goods

A significant part of the carriage of goods by sea involves the transportation

of commodities in bulk. 123 This is in marked contrast to conditions in the
nineteenth century and during the first half of the twentieth century, and it
is hardly surprising to find that the 1855 Act is no longer adequate to deal
with such momentous change in trading conditions. A further factor is that,
under English sales law, the buyer of a part of a bulk cargo cannot obtain title
to any part of it until his parcel has been apportioned to him. 124 Prior to
statutory reform of the Sale of Goods Act 1979 in 1995, if the bill of lading
were endorsed to such a buyer of bulk goods while these were afloat, they
constituted an unapportioned part of the bulk cargo 25 and title could not
pass to the buyer 'upon or by reason of the endorsement' under s 1 of the
1855 Act.
A well-known illustration of the problems created by these principles is
provided by TheAramis.126 In this case the carrier failed to deliver any cargo
and the CIF 127 buyers of the cargo claimed damages for non-delivery and
short delivery. The goods were part of a quantity of bulk goods covered by
several bills of lading and by the time that the final bill of lading was presented
at the port of discharge, the supply of the cargo had been exhausted. The
Court of Appeal decided that the property in the goods had not passed to the
buyers because the bills of lading representing the goods formed part of a
single undivided bulk cargo. 128 As there was no delivery, there was no passing
of property and so the buyer did not have title to sue under the 1855 Act.

(b) Passing of the risk but not the property

In the context of an international sale contract, the time at which the risk
of any loss passes from the seller to the buyer can be important, because
although the risk may pass to the buyer, the property in the goods may not.
In the case of a standard FOB contract, the normal rule is that risk passes
when goods are put on board the carrying vessel.1 29 In the case of CIF

122 See A H Hudson 'Sales from bulk' 1989 Lloyd's Maritime & Commercial LQ 420; Sale of Goods Forming
Part of a Bulk (1993) Law Com No 215; Scot Law Com No 145.
123 See Stopford op cit note 27 at 10.
124 Sale of Goods Act 1979, c 54, s 16. For South African lawsee Hackwill op cit note 59 chap 3,188

(on risk).
125 Reformed by the Sale ofGoods (Amendment Act) 1995,c 28.See Tom Burns 'Better late than never:
The reform of the law on the sale of goods forming part of a bulk' (1996) 59 Modern LR 260;Janet Ulph
'The Sale of Goods (Amendment) Act 1995: Co-ownership and the rogue seHer' 1996 Lloyds Maritime &
Commercial LQ 93; Louise Gullifer 'Constructive possession after the Sale of Goods (Amendment) Act 1995'
1999 Lloyds Maritime & Commercial LQ 93; Bridge op cit note 9 para 10.20.
126 [1989] 1 Lloyd's Rep 213 (CA).See David G Powles'The basis ofthe carrier's liability to the consignee
-A need for revision' 1990Journalof Business Law 153.
127 'Cost, insurance, freight'. This is one of the most important of the international sale contracts: see
Sassoon op cit note 9 chap 1; Guest op cit note 9 chap 19; Bridge op cit note 9 chap 5; Incoterms 2000 (2000) 65.
128 At 218. Much of the reasoning was concerned with the question whether a contract should be
implied between the parties. See G H Treitel 'Bills of lading and implied contracts' 1989 Lloyd's Maritime &
Commercial LQ 162; Girvin op cit note 21 at 111.
129 See Stock v Inglis (1884) 12 QBD 564 (CA); The Parchim [1918] AC 157 at 168; Hackwill op cit
note 59 chap 16E; Bridge op cit note 9 para 10.42.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

contracts, risk passes on shipment. 130 The knock-on effect for the carriage
contract is that the risk can pass well before the property. Consequently, the
party on risk would not acquire title to sue under the 1855 Act. An example
is Leigh & Sullivan Ltd v Aliakmon Shipping Co (The Aliaknion).131 In this case
a cargo of steel coils suffered damage in transit caused inter alia by negligent
stowage. The risk, but not the property, had passed to a C and F buyer who
was denied any entitlement to sue under the 1855 Act. He sought to sue
the carrier in negligence but this was refused by the House of Lords 132 on the
basis that the buyer was not the owner of the steel at the time that the damage
was inflicted. The Lords took the view that there was no lacuna in the law
relating to carrier liability which would require them to extend the range of
the duty of care in negligence. In particular, unless a plaintiff had a proprietary
right in the property damaged, 133 he could not recover in tort for economic
134
loss arising therefrom.

(c) Chains of contracts

A feature of international trade, especially in crude oil and its associated
products, is that the cargoes are often sold many times before delivery to the
buyer. In some cases, this can amount to as many as 150 consecutive sales, both
before and after the production of the physical cargo by or on behalf of the
136
shipper. 135 In Enicheni Anic SpA v Ampelos Shipping Co Ltd (The De!fini)
there was a chain of contracts with provision for delivery against letters of
indemnity,137 in the event that the bills of lading were unavailable at the time
of discharge. The case involved a short sea voyage, where it is more likely than
not that the bills of lading will not be available to effect discharge from the
ship. 138 The shipowners delivered against the letter of indemnity whereupon
it was alleged that there was a short delivery of 275 789 tonnes. At first instance,
Phillips J held that, once the cargo had been discharged, the bills of lading

130 Comptoir D'Achat et de Vente du Boerenbond Beige A/S v Luis de Ridder Limitada (The Julia) [1949] AC
293 at 309; E Biddell Bros v Clemens Horst Co [1911] 1 KB 934 (CA) at 956; Hackwill op cit note 59 chap 16D;
Bridge op cit note 9 para 10.50.
131 [1986] AC 785; G H Treitel 'Bills of lading and third parties' 1986 Lloyd's Maritime & Commercial LQ
294; A M Tettenborn 'The carrier and the non-owning consignee -An inconsequential immunity' 1987
Journal of Business Law 12; David G Powles 'Tide to sue, problems of consignees and others' 1987Journalof
Business Law 313; B J Davenport 'Problems in the Bills of Lading Act' (1989) 105 LQR 174; Reynolds op cit
note 118.
132 See too the earlier case of Margarine Union GmbH v Cambay PrinceSS Co Ltd (The Wear Breeze) [1969]
1 QB 219.
133 This view of the law was endorsed in Homburg Houtimport B V v Agrosin Private Ltd (The Starsin)
[2000] 1 Lloyd's Rep 85 at 102. Cf The Hamburg Star [1994] 1 Lloyd's Rep 399.
134 See F M B Reynolds 'Tort actions in contractual situations' (1984-85) 11 New Zealand Universities
LR 215; Stephen Todd 'Remedies of the buyer for damage to goods carried by sea' (1986) 3 Canterbury LR
86 at 92.
135 See Voest Alpine lntertrading GtbH v Chevron InternationalOil Co Ltd [19871 2 Lloyd's Rep 547 at
550; R M Wiseman 'Transaction chains in North Sea oil cargoes'(1984) 2journalofEnergy & NaturalResources
Law 134; Williams op cit note 35 at 112.
136 [1990] 1 Lloyd's Rep 252 (CA). See G H Treitel 'Passing of property under CIF contracts and the
Bills of Lading Act 1855' 1990 Lloyd's Maritime and Commercial LQ 1.
137 A common, though risky, occurrence. See Steven J Hazelwood P & I Clubs: Law and Practice 3 ed
(2000) 188.
138 See Alderton op cit note 27 at 247; Stopford op cit note 27 at 8.
330 THE SOUTH AFRICAN LAW JOURNAL

ceased to be effective as a transferable document of title and so no contractual

rights were acquired by the transferee under the 1855 Act. 139 The Court of
Appeal agreed, but for different reasons: it held that the plaintiffs did not have
any rights of suit under the Act because endorsement of the bill of lading to
the consignee had not played an essential causal part in the passing of property
which had occurred when the consignee paid the buyer.

(d) Pledges to banks

A further source of difficulty with the 1855 Act concerned the case of the
bill of lading endorsed by way of a pledge, 140 for example to a bank financing
the international sale transaction. 141 Under the Act, the pledgee could not
acquire rights under the carriage contract because there was no intention that
such endorsement should transfer to him the property in the goods covered
by the bill.142 In Sewell v Burdick1 43 a cargo of machinery was shipped to Russia
and the bill of lading endorsed in blank to bankers in order to obtain a loan.
The shipper failed to collect the goods at the discharge port and the carrier,
unable to recover the full freight, brought an action for the balance of the
freight against the bank as endorsees of the bill of lading. However, the House
of Lords held that the bankers were not parties to the contract of carriage and
there had never been any intention to transfer ownership to them.

REFORM IN THE UNITED KINGDOM

144
Proposalsfor reform

Almost from the time of the enactment of the 1855 Act there were calls
for its amendment, 145 but it was not until a century later that there were
concerted attempts to bring this about. This followed representations to
the Law Commission in the aftermath of The Gosforth, a case decided by the
Commercial Court in Rotterdam according to English law. 146 The Law
Commission ofEngland and Wales1 47 was prompted to look into the question,
inter alia by representatives of Gafta. 148 After the issue of questionnaires to
interested parties in 1987,149 the Law Commission1 50 (and by now also the

139 [1988] 2 Lloyd's Rep 599 at 609.

140 See, generally, A P Bell Modem Law of PersonalProperty in England and Ireland (1989) chap 6; Michael
Bridge PersonalProperty Law 2 ed (1996) para 7.2.2.
141 See Bridge op cit note 9 chap 6.
142 The Future Express [1993] 2 Lloyd's Rep 542 (CA). For a case where there was such an intention, see

TheJag Shakti [1982-83] SLR 103.

143 (1884) 10 App Cas 74 (14L).
144 See Borealis AB v Stargas Ltd (The Beige Sisar) [2001] 1 Lloyd's Rep 663 (HL) at 671-2.
145 See T G Carver 'On some defects in the Bills of Lading Act 1855'(1890) 6 LQR 289 at 292:'Perhaps

the time has arrived when fresh legislation on the subject may be attempted with advantage"
146 S en S 1985 Nr 91; BJ Davenport 'Ownership of bulk cargoes: The Gosforth' 1986 Lloyd's Maritime

& Commercial LQ 4.
147 The Law Commissioner with responsibility for the project was, initially, Mr Brian Davenport QC,

subsequently Mr Jack Beatson (as he then was).

148 The Grain and Free Trade Association: iwusgafta.com
149 Appendix, Working Paper No 112, op cit note 119.
150 www.lawcom.gov.uk (Law Commission of England and Wales); www.scotlawcom.gov.uk (Scottish Law
Comnission).
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

Scottish Law Commission) 151 published a Working Paper on Rights to Goods

in Bulk152 in June 1989.153 Two seminars, attended by leading academics,
practitioners and judges, were held 54 and this led to a joint final Report of
the two Law Commissions. 155 The latter included a Draft Bill, which was
enacted virtually unaltered in 1992.156

The Carriage of Goods by Sea Act 1992157

A great deal has been written about the 1992 Act' 58 and it is not proposed
159
here to traverse in too much detail what is essentially well-worn ground.
However, in view of developments elsewhere in the Commonwealth, which
in some cases reproduce the wording of the Act verbatim, 160 it is essential to
identify the main features.

(a) Documents
The Act is principally concerned with the acquisition of rights and
liabilities by those holding bills of lading, sea waybills, and ship's delivery
orders.161 Though the bill of lading is nowhere defined in the Act, the Act
does provide that what is not included is a document which is incapable of
transfer by endorsement or, as a bearer bill, by delivery without endorse-
63
ment. 162 Subject to this, a 'received for shipment' bill of lading is included. 1
The Law Commission thought that too elaborate a definition could
ultimately be counter-productive. 164 Sea waybills and ship's delivery orders

151 Bulk Goods Scottish Law Commission Discussion Paper No 83 (1989).

152 Working Paper No 112, op cit note 119.
153 On the position ofbills of lading in Scots law, see D L Carey Miller Corporeal Moveables in Scots Law
(1991) 135.
154 One on 13 December 1989, held at 4 Essex Court, Temple (at the time the Chambers of Anthony
Diamond QC) and another on 15 January 1990 at the Institute of Advanced Legal Studies. See Law
Commission Report, Appendix C.
iSS Note 51. See too the Partial Dissent by Dr E M Chve, at the time a Law Commissioner for Scotland.
156 The draft Bill was introduced in the House of Lords by Lord Goff: Hansard,HL, vol 538 cols 73-9;
White vJones [1995] 2 AC 207 at 265. The sole difference between the Bill and the Act is s 6(4), which extends
its ambit to Northern Ireland.
157 The short title of this Act is inappropriate, given the confusion that it causes with the Carriage of
Goods by Sea Act 1971, c 19, which gives the force of law to the Hague-Visby Rules (s 1(2) of that Act).
For the reasons, see Hansard, HL Debates, 15 June 1992, vol 538 col 78 (Lord Goff). The Act came into
force on 16 September 1992 (s 6(3)) but is not retrospective (cfthe South African Act: s 2(1)).Accordingly,
it was of no use in Mitsui & Co Ltd v Novorossiusk Shipping Co (The Gudermes) [1993] 1 Lloyd's Rep 311
(CA) at 315.
158 See, for example, J Beatson & J J Cooper 'Rights of suit in respect of carriage of goods by
sea' 1990 Lloyd's Maritime & Commercial LQ 196; F M B Reynolds 'The Carriage of Goods by Sea Act 1992'
1993 Lloyd's Maritime & Commercial LQ 436; R Bradgate & F White 'The Carriage of Goods by Sea Act
1992' (1993) 56 Modem LIZ 188; David Mildon 'Carriage of goods by sea: Statutory reforms which meet in
unexpected places' 1998 InternationalMaritime Law 139; Treitel & Reynolds op cit note 37 chap 6.
159 Particular attention should, of course, be paid to the Law Commission Report op cit note 51. See,
however, also Current Law Statutes 1992 (annotated by James Cooper, the draftsman of the Act).
160 That is, Singapore and Hong Kong. See text to notes 262 (Hong Kong) and 275 (Singapore).
161 Section 1(1); s 3 (Qld); s 4 (SA)(Tas); s 5 (NSW)(Vic)(WA); s 3(2) (HK); s 13A(2) (NZ).
162 Section 1(2); s 3 (Qld); s 4 (SA)(Tas); s 5 (NSW)(Vic)(WA); s 3(2) (HK); s 13A(2) (NZ).
163 Thereby resolving some of the difficulties produced, inter alia, by The Marlborough Hill v Alex Cowan
& Sons Ltd [1921] 1 AC 444 (PC); Elder DempsterLines v Zaki Ishag (The Lycaon) [1983] 2 Lloyd's Rep 548.
See Raymond E Negus 'The evolution of bills of lading' (1921) 37 LQR 304.
164 Law Commission Report, op cit note 51 para 2.50.
332 THE SOUTH AFRICAN LAW JOURNAL

are defined in the Act 165 and cautious provision is made for EDI. 166 The Law
Commission took the view that there were 'formidable technical and legal
167
problems' to be overcome before paperless transactions become the norm
and that provision should be made for this possibility to the extent that
the Secretary of State should be able to make regulations modifying the
Act, as necessary and containing supplemental, incidental, consequential and
68
transitional provisions. 1

(b) Rights
The core of the Act is s 2(1), which provides that the 'holder ' 169 of a
designated shipping document will have transferred to and vested in him all
rights of suit under the contract of carriage as if he had been a party to that
contract. 170 The Act provides that the 'lawful' holder of a bill of lading has
these rights, 17 1 as does the holder of a sea waybill1 72 and a ship's delivery
order. 173 Thus, this provision of the Act adopts a more generous approach to
the transfer of contractual rights than the corresponding s 1 of the 1855 Act:
174
it wholly omits the 'property' criterion.
Where possession of the bill of lading no longer gives any right to
possession of the goods - for example, where delivery has already been made
to someone with the right to claim the goods -the bill of lading is no longer
an effective document of title. 1 75 This can be particularly harsh for those
receiving a bill oflading perhaps as much as a year after the goods are physically
discharged. The 1992 Act thus provides that, although the holder would
ordinarily not have any rights of suit transferred to him once the bills are
'spent', the same does not hold true where he becomes the holder by virtue
of a transaction effected in pursuance of any contractual (or other) arrange-
ments made before the time when such a right to possession ceased to attach
to the possession of the bill. 176 Equally, the basic position would not hold
where a person becomes the holder of the bill of lading as a result of the
rejection to that person by another person of goods or documents delivered
to the other person in pursuance of any such arrangements. 1 77 The Act also
provides that where rights are transferred to a holder, this extinguishes any
entitlement to those rights deriving from a person who was an original party
178
to the contract of carriage.

165 Section 1(2)(3).

166 See now also the Electronic Communications Act 2000, c 7 at wwu.hmso.gov.uk/legis.htm
167 Law Commission Report, op cit note 51 para 6.3.
168 Section 1(5)(6). See s 13(5)(6) (NZ);s 7 (HK); s 9 (South Africa).
169 For a case where the original shippers remained as 'holder' under wrongly dated bills of lading, see
Mendala III Transport v Total Transport Corp (The Wilomi Tanana) 1993] 2 Lloyd's Rep 41.
170 Sees 6(1)(2)(3) (Qld);s 7(1)(2)(3) (SA)(Tas);s 8(1)(2)(3) (WA)(NSW)(Vic);s 4(1) (HK);s 13B (NZ).
171 Section 2(1)(a). 172 Section 2(1)(b).
173 Section 2(1)(c). 174 See note 117.
i75 Short v Simpson (1866) LR 1 CP 248;EnichemAnic SpA vAmpelos Shipping Co Ltd (The Deifin) [1988]

2 Lloyd's Rep 599 at 609.

176 Section 2(2)(a); s 6(4) (Qld); s 7(4) (SA)(Tas); s 8(4) (NSW)(Vic)(WA); s 4(4) (HK); s 13B(2) (NZ).
177 Section 2(2)(b).
178 Section 2(5); s 7(1) (Qld); s 8(1) (SA)(Tas); s 9(1) (NSW)(Vic)(WA); s 5(1) (HK); s 13B(5) (NZ).
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

(c) Burdens179
The Law Comnission was much exercised by the question concerning
the extent to which the holder should become liable for the burdens of
the contract. 180 It was decided that contractual liabilities should not be
automatically imposed on every holder of a bill of lading, but only where the
holder purported to enforce any rights conferred on him. 18 1 Thus the Act
provides that where a holder of a bill of lading takes or demands delivery
from the carrier of any of the goods to which the document relates, makes a
claim under the contract of carriage against the carrier in respect of any
of those goods, or is a person who, at a time before those rights were
vested in him, took or demanded delivery from the carrier of any of those
goods, 1 82 then that person will be subject to the same liabilities as if he had
been party to that contract. 183 If, for example, the holder of a bill of lading
agreed to take delivery but only at a specified dock such that there was a delay
in unloading the cargo because of insufficient water, he would be required to
pay demurrage.
Although there was some argument as to whether the holder should only
84
become liable for post-shipment liabilities and not pre-shipment liabilities,1
the Law Commission took the view that no satisfactory line could be drawn
between the two. The Act provides expressly that, in so far as liabilities are
imposed on any holder, this is without prejudice to the liabilities under the
contract of any person as an original party to the contract. 185

(d) Recovery by those not suffering loss

At common law it is not usually possible for substantial damages to be
recovered by a claimant who has not suffered any loss. This rule was affirmed
by the House of Lords in Albacruz (Cargo Owners) v Albazero (Owners) (The
Albazero)' 86 and has been followed in other jurisdictions. 187 The 1992 Act
now provides, however, that where someone suffers loss or damage but does

179 See especially Borealis AB v Stargas Ltd [2001] 1 Lloyd's Rep 663 (HL), discussed below: see text to

note 217.
180 Law Commission Report, op cit note 51 para 3.1.
181 See Treitel & Reynolds op cit note 37 para 5-078.
N2 This provision accordingly takes care of the problem in Enichem Anic SpA v Ampelos Shipping Co Ltd
(The Delfni) [19901 1 Lloyd's Rep 252 (CA), where the bills of lading in respect ofthe goods were endorsed
11 days after delivery of the cargo.
183 Law Commission Report, op cit note 51 para 3.18. See s 3(1) (UK); s 8(1) (Qld); s 9(1) (SA)(Tas);
s 10(1) (NSW)(Vic)(WA); s 5(l) (HK); s 13C(1) (NZ).
184 Such as the shipper's breach ofwarranty in shipping dangerous goods.See Stephen D Girvin 'Shipper's
liability for the carriage of dangerous cargoes by sea' 1996 Lloyd's Maritime & Commercial LQ 487; Francis
Rose 'Cargo risks: "Dangerous" goods' (1996) 55 Cambridge LJ 601.
185 Section 3(3);s 9 (Qld);s 10 (SA) (Tas);s 11 (NSW)(Vic)(WA); s 5(3)(HK);s 13C(3) (NZ). This preserves
the position at common law and also under the 1855 Act:see Fox v Non (1861) 6 H & N 630 [158 ER 260];
The Athanasia Comninos & George Chr Lemos [1990] 1 Lloyd's Rep 277 at 281;Effort Shipping Co Ltd v Linden
Management SA (The Giannis NK) [1996] 1 Lloyd's Rep 577 (CA) at 586; [1998] AC 605 at 618.
186 [1977] AC 774. TheAlbazero was distinguished by the House of Lords in Alfred McAlpine Construction
Ltd v Panatown Ltd [2001] 1 AC 518. Cf National Mineral Development Corp Ltd v Obestain Inc (The Sanix Ace)
11987] 1 Lloyd's Rep 465.
187 See, for example, EMI (NZ) Ltd v Win Holyman & Sons Pty Ltd [1976] 2 NZLR 566; The Kota
Pahlawan [1982-83] SLR 88.
334 THE SOUTH AFRICAN LAW JOURNAL

not have rights of suit, the person with rights of suit can exercise those rights
for the benefit of the person who has suffered the loss or damage. 188

(e) False statements1 89

Much difficulty has been encountered with the common-law rule that a
bill of lading is prima facie evidence of the weight or quantity of goods
shipped. 190 In the notorious case of Grant v Nonvay, 191 where a master of a
vessel falsely signed bills of lading attesting to the shipment of a quantity of
192
silk, the Court of Common Pleas held that a ship's master had no authority
193
to sign a bill of lading for goods not put on board. Section 3 of the 1855
Act, passed to remedy the problems created by the case, did so in a way which
did not give a cause of action for the non-delivery of the goods represented
to have been shipped. Nor did it provide conclusive evidence against the
194
carrier, even where the carrier's agent had actual authority to sign.
195
Though it had not consulted on the matter, the Law Commission
recommended the abolition of the rule in Grant v Norway. 196 The 1992 Act
accordingly provides that a bill of lading representing goods to have been
shipped or received for shipment and in the hands of the lawful holder will
be conclusive evidence 197 against the carrier of such shipment or receipt. 198
The same is not the case, however, where the relevant document is a waybill
or ship's delivery order. However, there is obiter authority to the effect that
while the Act affects the master's ostensible authority, it does not alter the
position that the master does not have actual authority to sign for goods which
have not been received. 199

188 Section 2(4); Law Commission Report, op cit note 51 para 2.25. See s 6(5) (Qld); s 7(5) (SA)(Tas);

s 8(5) (NSW)(Vic)(WA); s 4(4) (HK);s 13B(4) (NZ).

189 See Treitel & Reynolds op cit note 37 para 2-005.
190 It is possible to contract out of such an undertaking by means of an endorsement on the bill: New
Chinese Antimony Co Ltd v Ocean Steamship Co Lid [1917] 2 KB 664 (CA); Oricon Waren-Handels GmbH v
Intergraan NV [1967] 2 Lloyd's Rep 82.
191 (1851) 10 CB 665 (CP) [138 ER 263].
192 As to the error in this point, see the criticism by F M B Reynolds 'Warranty of authority'(1967) 88
LQR 189 at 193.
193 The case was distinguished in respect of goods shipped under deck (The Nea Thyi [1982] 1 Lloyd's

Rep 606 at 610) and in the case of falsely dated bills of lading by duly appointed agents (The Saudi Crown
[1986] 1 Lloyd's Rep 261 at 265).
194 See V/O Rasnoimport v Guthrie & Co [19661 1 Lloyd's Rep 1.
195 Law Commission Report, op cit note 51 para 4.1.
196 Paragraph 4.7. In Homburg Houtimport BVv Agrosin Private Lid (The Starsin) [2000] 1 Lloyd's Rep 85

at 96 the defendants unsuccessfully sought to rely on the case. See also Alimport v Soubert Shipping Co Ltd
[20001 2 Lloyd's Rep 447.
197 Section 4; s 10 (Qld); s 11 (SA)(Tas); s 12 (NSW)(Vic)(WA); s 6 (HK). For the position in New
Zealand, see text to note 267.
198 In Agrosin Pte Lid v Highway Shipping Co Ltd (The Mata K) [1998] 2 Lloyd's Rep 614 the court held
that the effect of a 'weight unknown' endorsement in a bill of lading was such as to render a bill of lading
ineffectual as prima facie evidence of shipment under art III, r 4 of the Hague Rules. See Neil Miller'S 4
COGSA 1992 - Representations in a bill of lading, or not?' 1999 InternationalJournal of Shipping Law 55.
199 See Oceanfocus Shipping Ltd v Hyundai Merchant Marine Co Ltd (The Hawk) [1999] 1 Lloyd's Rep 176
at 185.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 335

Where the Hague-Visby Rules apply to the bill of lading, 200 the 1992 Act
provides that the preceding provisions will have effect without prejudice to
20 1
the application of the Hague-Visby Rules.

20 2
Cases decided under the Act: Who is the 'holder' and what are his liabilities?
There have, perhaps surprisingly, been a number of cases - one of them
203
appealed through to the House of Lords - generated by the new Act.

204
(a) Aegean Sea Traders Corporation v Repsol Petroleo SA (The Aegean Sea)

This case was concerned with two inter-related issues: (i) whether a
particular consignee was the 'holder', and, if so, (ii) whether he had become
subject to the liabilities under the Act. The case arose out of the disastrous
grounding and total loss of a tanker, the Aegean Sea, off La Corufia in Spain
in 1992.205 The shipowners were seeking to recover from the consignee
US $65m, but could only do so if the consignee was the 'holder' under the
Act. One of the original bills of lading (for part of the cargo) had been
endorsed to an intermediate buyer and then wrongly endorsed by that buyer
to the consignee instead of the wholly-owned subsidiary of the consignee.
The Act required the consignee, if he was the holder, to have possession of
the bills of lading as the result of the completion of any endorsement by
delivery.206 The shipowners sought to argue that, once the bill of lading was
endorsed and put in the post, this was sufficient for these purposes, but the
judge did not agree. A person did not become the holder of a bill of lading
if he obtained the bill of lading merely in consequence of someone endorsing
it and sending it to him. 207 Further, in order to become the 'lawful' holder,
the consignee also had to have 'become the holder of the bill in good faith'. 208
As the consignee knew that the bill of lading should have been endorsed to
the wholly-owned subsidiary they had never accepted the delivery or
209
endorsement of the bill of lading to them.

200 See art X of the Hague-Visby Rules and also s 1(3) and s 1(6) of the (UK) Carriage of Goods by

Sea Act 1971, c 19; Treitel & Reynolds op cit note 37 para 9-072.
201 Section 5(5). See s 8 (HK).
202 See Natalie Campbell 'Defining the frontiers of the bill of lading holder's liability' 2000 journal of

Business Law 196.

203 A number of cases were not affected by the new Act: see The Future Express [1993] 2 Lloyd's Rep
542 (CA) at 546. See Fidelma White & Robert Bradgate 'Noprotection for banks against fraud and folly'
1994 Uoyd's Maritime & Commercial LQ 350.
204 [1998] 2 Lloyd's Rep 39. See Nicholas Gaskell 'Pollution, limitation and carriage in The Aegean Sea'
in Rose op cit note 116 at 71.
205 Fully described in Norman Hooke Maritime Casualties 1963-1996 2 ed (1997) 9.
206 Section 5(2)(b); s 3 (Qld); s 4 (SA)(Tas); s 5 (NSW)(Vic)(WA); s 2(2) (HK); s 13(2) (NZ). See too
Kanematsu (Hong Kong) Ltd v Eurasia Express Line (Queen's Bench Division, 9 April 1997, unreported). In
Gulf InterstateOil Corp LLC v Ant Trade & Transport Ltd of Malta (The Giovanna) [1999] 1 Lloyd's Rep 867 at
874 Rixj appeared ready to accept (without deciding the point) that the plaintiffs were holders though the
bills of lading were with a bank, pursuant to a letter of credit.
207 At 59-60.
208 Section 5(2)(c). The judge concluded that 'good faith' meant 'honest conduct' -by analogy with
s 62(2) of the (UK) Sale of Goods Act 1979, c 54.
209 At 60.
336 THE SOUTH AFRICAN LAW JOURNAL

If the consignee was the lawful holder, did this mean that he had become
subject to the liabilities under the bill of lading by virtue of taking or
demanding 'delivery from the carrier of any of the goods to which the
document relates'? 210 Thomas J concluded that the consignees had not
'demanded' delivery.2 11 The mere fact that 5 475 tonnes of crude oil retrieved
by the salvors had been received into the consignees' refinery did not amount
to 'taking' delivery from the carrier. 212 Finally, given that the crude oil was
received in the refinery before the bill of lading was received, the owners' claim
2 13
could only succeed under s 3(1)(c) of the 1992 Act.

(b) Motis Exports Ltd v DampskibsselskabetAF 1912, A/S (No 2)214

This case was the follow-up to litigation holding that the carrier's delivery
of cargo as against a forged bill of lading was a breach of contract. 215 The
question now was the entitlement of the claimants to make a claim, as 'holders'
of the bills of lading under the 1992 Act. It was alleged that the pledge of the
relevant generally endorsed bills of lading to a bank meant that the bank
became the 'holder', pursuant to s 5(2) (b) of the Act, extinguishing any rights
of the original parties to the contract. Moore-Bick J held, however, that the
claimants had become holders of the bills of lading pursuant to a commercial
arrangement which had been entered into long before the goods had reached
their destination or were released by the shipowners. Accordingly, the claim-
ants had established their title to sue in contract as holders of the bills of lading.
Counsel for the shipowners sought to argue that the claim was not pleaded
by the claimants as 'holders', but rather as original parties to the bills of lading,
and that the claimants should not be permitted to amend their pleadings so
as to enable their application to succeed. However, this was rejected by the
judge on the basis that the existing statement of claim was sufficient to
entitle the claimants to prove that contracts existed between them and the
216
shipowners on the terms of the bills of lading by operation of the 1992 Act.
2 17
(c) Borealis AB v Stargas Ltd (The Berge Sisar)
Here, the crucial question was whether a lawful holder, who had taken
steps towards assuming the liabilities under the Act and who afterwards
endorsed the bill of lading, was discharged from such liability. This had not

210 Section 3(l)(a) (s 8(1)(a) (Qld); s 9(l)(a) (SA)(Tas); s 10(1)(a) (NSW)(Vic)(WA); s 5(1)(a) (HK);

s 13C(1)(a) (NZ)).
211 At 61-2.
212 That is, within the meaning ofs 3(l)(a) of the Act: at 62.
213 See s 8(1)(c) (Qld);s 9(1)(c) (SA)(Tas);s 10(l)(c) (NSW)(Vic)(WA); s 5(1)(c) (HK);s 13C(1)(c) (NZ).
214 Queen's Bench Division, 2 February 2001, unreported.
215 See text to note 334.
216 Citing, with approval, the judgment of Parker LJ in Hispanica de Petroleos SA v Vencedora Oceanica
Navegacin SA (The Kapetan Markos) [1986] 1 Lloyd's Rep 211 (CA) at 230.
217 [2001] 1 Lloyd's Rep 663 (HL), noted by G H Treitel 'Bills of lading: Liabilities of transferee' 2001
Uoyds Maritime & CommercialLQ 344;Treitel & Reynolds op cit note 37 para 5-094.See too F M B Reynolds
'The Carriage of Goods by Sea Act 1992 put to the test' 1999 Lloyd's Maritime & Commercial LQ 161
(commenting on the decision of the Court of Appeal: [1999] QB 863).
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

been considered by the Law Commissions in their Report; they had not made
any distinction between a claim or demand for delivery of the goods, which
may be withdrawn or abandoned, and actual delivery of the goods which,
once taken, would be irreversible. The buyer in the case (Borealis) had bought
a quantity of refrigerated propane on CFR terms, 2 18 but on arrival at the
discharge port -in advance of the bills of lading -the buyer rejected
the cargo on the ground that it had failed the relevant quality criteria. Some
five days later, Borealis sold the cargo to another company on CIF terms. The
dispute between the parties centred on the potential liability of Stargas and
the owners of the Berge Sisar (Bergesen) for the post-shipment deterioration
of the cargo and a counterclaim by Bergesen for damage allegedly caused to
the vessel as against Stargas. The answer to the dispute ultimately crystallized
around provisions of the 1992 Act.
The Court ofAppeal concluded that an intermediate holder in the position
of Borealis was discharged from liability because the 1992 Act was never
intended to include intermediate (or previous) holders who dropped out
when a later holder - the final buyer - took delivery. This was because a
holder who was entitled to contractual rights and who fulfilled the additional
conditions for liability did not become irrevocably liable under the contract
of carriage. He was liable unless and until he endorsed the bill of lading to
219
someone who also fulfilled the conditions of liability.
The House of Lords, in its judgment on 22 March 2001, concurred.220
There are three points of especial importance. The first is that the House
interpreted a demand for delivery -pursuant to the attracting of liabilities
in s 3 of the 1992 Act -as referring to a formal demand made to the carrier
or his agent, asserting a contractual right as the endorsee of the bill of lading
to have the carrier deliver the goods to him. 221 The second is that delivery -
again under s 3 -meant a full transfer of possession of the relevant goods by
the carrier to the holder of the bill of lading and was accomplished by the
surrender of the relevant bill of lading to the carrier. 222 The third is that, when
an endorsee of a bill of lading endorses the bill of lading to another, he ceases
to become liable for the contractual liabilities under s 3 of the 1992 Act. This
is because the 1992 Act is concerned with preserving mutuality: liability under
223
the Act is dependent on the possession of rights.

COMMONWEALTH REFORMS
Many countries throughout the Commonwealth received the 1855 Act
because of strong political and legal ties established during the colonial

218 'Cost and freight'terms -and usually known as C & E See Guest op cit note 9 para 21-012; Bridge
op cit note 9 para 5.01; Incoterms 2000 (2000) 57.
219 [1999] QB 863 (CA) at 884. Drawing upon Smurthwaitev Wilkins (1862) 11 CB (NS) 842 [142 ER,
1026].
220 The principal speech was given by Lord Hobhouse of Woodborough.
221 At 675. Such a demand, resulting in delivery, also brings to an end any actual bailment of the goods

and is the final act of contractual performance on the part of the carrier.
222 At 676.
223 At 678.
J-56 THE SOUTH AFRICAN LAW JOURNAL
224
period. In what follows, the nature of reforms in selected Commonwealth
countries (Australia, Canada, Hong Kong, New Zealand, and Singapore) is
discussed.

225
Australia
In Australia, a commonwealth, 226 different legislative techniques were used
to implement the 1855 Act. 227 In some cases,there was a verbatim adoption; 228
in other cases the relevant state incorporated the provisions into other general
commercial legislation. 229 Following the 1992 Act, most of the Australian
states, 230 with the encouragement of the Commonwealth Attorney-General's
Department and the Department of Transport, enacted new legislation, the
Sea-Carriage Documents Act, along the lines of that Act. 231 During extensive
consultations with industry groups, including lawyers, bankers, insurers,
commodity exporters and shippers, it was noted that the existing Australian
legislation no longer met the expectations of modem industry. Indeed, the
current legislation failed to accommodate sea waybills or ship's delivery orders
and did not take account of electronic data interchange in the shipping
232
industry.
Queensland, the first of the Australian States to enact the legislation, in
1996,233 had incorporated the provisions of the 1855 Act into its statute book
via the Mercantile Act 1867.234 The 1996 Act, which repeals 235 the provisions
of the 1855 Act found in the Mercantile Act 1867,236 was intended to provide
a template for the remaining states. This point was made by the Attorney-
General and Minister ofJustice during the second reading of the Bill before
the Queensland Parliament:

224 See the standard account in E A Benians,J Butler & C E Carrington (eds) The Cambridge History of
the British Empire (8 vols); Denis Judd Empire: The British Imperial Experience, From 1765 to the Present (1996).
225 See Alex C Castles An Introductionto Australian Legal History (1971) chaps 1,10. On Australia's colonial
admiralty heritage, see ALRC Report op cit note 14; DamienJ Cremean AdmiraltyJurisdiction:Law and Practice
in Australia (1997) 3.
226 For an explanation of the constitutional right to legislate on the subject of shipping in Australia see
Martin Davies & Anthony Dickey Shipping Law 2 ed (1995) chap 2; Cremean op cit note 225 chap 2; Howard
E Zelling & Michael White 'Constitutional background and jurisdiction of courts' in M W D White QC
(ed) Australian Maritime Law 2 ed (2000) chap 1; Edward G H Cox 'The substance of "of Admiralty and
maritime jurisdiction"' (2000) 15 Maritime Law Association ofAustralia & New ZealandJournal 1.
227 See Davies & Dickey op cit note 226 at 314. The text of all the legislation may be found at
wumlawfoundation.net.au (some available as PDF files).
228 Western Australia and Tasmania.
229 Queensland, New South Wales, South Australia, Victoria.
230 Although apparently not the Northern Territory or the Australian Capital Territory (which is
land-locked). See Martin Davies 'Australian maritime law decisions 1998'1999 loyds Maritime & Commercial
LQ 406 at 408.
231 See J Livermore 'Current developments concerning the form of bills of lading- Australia' in
Yiannopoulos op cit note 76 at 67.
232 See Explanatory Notes to the Sea-Carriage Documents Bill 1996 (Qld) 1.
233 Sea-Carriage Documents Act 1996 (Qld); in force from 9 December 1996. See Sarah Derrington
& Michael White 'Australian maritime law update: 1996' (1997) 28Journalof Maritime Law & Commerce 449
at 453.
234 31 Vic No 36,ss 5-7.
235 Section 11 and Schedule.
236 Sections 5-7 of that Act.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000 339
'As the first State in Australia to introduce the Sea-Carriage Documents Bill, Queensland
is adopting a leadership role, and would urge other States to follow suit without delay. The
adoption of this Bill will facilitate reform in an area 237
of vital significance to the State and
national economy. I commend the Bill to the House.'
With minor differences, the legislation subsequently enacted in New South
24
Wales, 238 South Australia, 239 Tasmania, OVictoria,
24 1
and Western Australia 242
has mirrored the drafting of the Queensland legislation. The Acts adopt the
techniques of the 1992 Act in effecting the relevant reforms; the principal
differences lie in the arrangement of the sections of each of the Acts, and in
the use of less formal language. 243 The Tasmanian Act is unique in providing
that the Governor may make regulations 'for or with respect to any matter'
which is required or permitted or which is necessary or convenient for
carrying out and giving effect to the Act. 244 The Act also provides that the
relevant Minister must review the Act to determine whether the policy
objectives are valid and whether the ternis remain appropriate for securing
these objectives. The review is directed to be held 'as soon as possible' after
five years from the date of assent to the Act 245 and is to be tabled in each
House of the Tasmanian Parliament within twelve months after the five-year
246
period has elapsed.

Differences with the 1992 Act

The main feature which is clearly different to the 1992 Act is the way
in which the Australian Acts deal with the question of EDI.247 There is
a definition of a 'data message' in each of the Acts, 248 taken from art 2(a) of
the UNCITRAL Model Law on Electronic Commerce 1996,249 as well
as detailed provisions, including definitions, relating to 'electronic and
computerized sea-carriage documents'. 250 The Acts emphasise that EDI is to

1
23' Hansard, 24 July 996, col 1812 (Hon D E Beanland).
'8 Sea-Carriage Documents Act 1997 (NSW),repealing Part SA of the Sale of Goods Act 1923 (NSW):
s 4. In force from 1 January 1998 (Government Gazette 10097 of 19 December 1997).
239 Sea-Carriage Documents Act 1998 (SA), repealing ss 14-15 of the Mercantile Law Act 1936 (SA):
see Schedule. In force from 5 October 1998 (Government Gazette 814 of 10 September 1998).
240 Sea-Carriage Documents Act 1997 (Tas), repealing the Bills of Lading Act 1857 (Tas): s 12.
241 Sea-Carriage Documents Act 1998 (Vic), repealing ss 73-74 of the Goods Act 1958 (Vic): s 4. In
force from 1 July 1998:s 2.
242 Sea-Carriage Documents Act 1997 (WA), repealing the 1855 Act which had become part ofthe law
of Western Australia by the Imperial Act Adopting Ordinance 1856: s 4. In force from 1 September 1997
(Government Gazette 4501 of 8 August 1997).
243 Note the statement of the Hon N D Griffiths in the Parliament of Western Australia: 'It is always a
good thing for us to make our own laws as Australians rather than to rely on the vestiges of a long vanished
empire': Hansard, 25 March 1995, col 807.
244 Section 13.
215 This requirement bears a remarkable resemblance to the Carriage of Goods by Sea Amendment
Act (Cth) 1991, s 2A(2) of which provided for the implementation of the Hamburg Rules in Australia
aftera similar period of review. This 'trigger' was removed by the Carriage of Goods by Sea AmendmentAct
(Cth) 1997. See Martin Davies 'Australian maritime law decisions 1997' 1998 Idoyd's Maritime & Commercial
LQ 394.
246 Section 14.
247 For the 1992 Act, see s 1 (5)(6).
248 See s 3 (Qld);s 5 (NSW, Vic, WA); s 4 (SA, Tas).
249 See ivw.uncitral.org for the text of the Model Law.
250 Section 4 (Qld);s 5 (SA, TAS);s 6 (NSW,Vic, WA).
340 THE SOUTH AFRICAN LAW JOURNAL

be used 'in accordance with procedures agreed between the parties to the
contract of carriage'. 251 In this context, the concepts of 'delivery', 'endorse-
252
ment', 'possession', and 'signed' are each defined.
So far as the transfer of liabilities is concerned, the Acts, although otherwise
exactly the same as the 1992 Act, make it clear that a person who demands
or takes delivery before the rights are transferred, becomes subject to the
liabilities at the time the rights in the contract are transferred to the person.253 The
Acts also emphasize that 'contract of carriage', for the purpose of the section,
'means the contract of carriage as varied by a variation of which the person
254
has notice at the time of becoming subject to the liability'.
Finally, in the part of the Acts concerned with reversing the effect of Grant
v Norway255 - 'shipment under bills of lading' - there is a provision to the
effect that a bill of lading to which the clause applies is evidence against
the carrier in favour of the shipper that the goods have been shipped, or
in the case of a received for shipment bill of lading, that they have been
received for shipment. 256 This restates the position at common law regarding
the evidentiary effect of the bill of lading in the same way as the Hague and
Hague-Visby Rules, 257 and is presumably due to the absence from the
Australian Acts of a provision 258 to the effect that they are without prejudice
259
to the application of those Rules.

Canada
Canada, alone of all the major Commonwealth countries, still retains its
Bills ofLadingAct 26 0which implements the 1855 UK legislation. The position
261
so far as reform is concerned is rather uncertain.

262
Hong Kong
The Bills of Lading and Analogous Shipping Documents Ordinance 1993263
implements the 1992 Act verbatim in Hong Kong. Although there have been
a handful of cases which have cited the Act, only one merits mention here.

251 Section 4(3) (Qld);s 5(3) (SA,Tas);s 6(3) (NSW, Vic, WA).
252 Section 4(4) (Qld);s 5(4) (SA, Tas);s 6(4) (NSW, Vic, WA).
253 Section 8(3) (Qld);s 9(3) (SA,Tas,);s 10(3) (NSW Vic, WA).
254 Section 8(4) (Qld);s 9(4) (SA,Tas);s 10(4) (NSWVicWA).
255 That is, the equivalent of s 4 (UK); s 10(3) (Qld); s 11 (3) (SA, Tas); s 12(3) (NSW, Vic, WA). See
note 191; Rosenfeld Hillas & Co Ltd v The Fort Laramie (1923) 32 CLR 25 (upholding the case).
256 Section 10(2). See s 11 (2) (SA, Tas); s 12(2) (NSW, Vic, WA).
257 See art III r 4.
258 Cfs 5(5) (UK);s 8 (HK).
259 Note that Australia now has a hybrid version of the Hague-Visby Rules and Hamburg Rules
implemented by the Carriage ofGoods by Sea Regulations 1998.See Stuart Hetherington 'Australian hybrid
cargo liability regime' 1999 Lloyd's Maritime & Commercial LQ 12; Davies op cit note 230 at 406.
260 RSC CB-5. See Tedey op cit note 51 at 179; W David Angus & Peter J Cullen 'Canada' in A von
Ziegler (ed) Transfer of Ownership in International Trade (1999) 77 at 88.
261 The Uniform Documents of Title Act drafted by the Uniform Law Conference of Canada (1995)
seems to have come to nothing. See uww.ulcc.ca/en/cls for the text of the draft.
262 Generally, see Peter Wesley-Smith A n Introduction to the Hong Kong Legal System 2 ed (1993) chap 5;
'The reception of English law in Hong Kong' (1988) 18 Hong Kong LJ 183.
263 No 85 of 1993. See Shane Nossal 'The Bills of Lading and Analogous Shipping Documents
Ordinance' (1994) 24 Hong Kong LJ 181.
 CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

In Daewoo Hong Kong Ltd v Mana Maritime Inc, 264 a plaintiff shipper purported
to sue a carrier on a 'switch' bill of lading 265 which it had already endorsed
to a buyer (M) and presented under the letter of credit which M had opened
in favour of the plaintiff. Although it recognized that the legislation had yet
to receive extensive attention in Hong Kong, the court had little difficulty in
concluding that, pursuant to s 2(2)(b) and s 4(1)(a) 266 of the Ordinance, the
shipper under the bill of lading ceased to have contractual rights once
someone else, M, became the lawful holder of the bill of lading.

267
New Zealand
New Zealand implemented the 1855 Act in s 13 of its Mercantile Law
Act 1908.268 Prior to the repeal of this part of the Act in 1994, the New
Zealand legislature passed the Contracts (Privity) Act 1982,269 which created
a means whereby a buyer who was unable to sue under s 13 of the 1908 Act,
might do so as a third party beneficiary, provided that he was 'a person,
designated by name, description, or reference to a class'. 270 No New Zealand
case has ever tested this possibility, however.
Section 13 of the 1908 Act was repealed by the Mercantile Law Amend-
ment Act 1994.271 This introduces four new sections into the parent Act, the
Mercantile Law Act. 272 The amendments are to the same effect as the UK Act,
with one important exception, namely that there is no equivalent to the other
Commonwealth provisions 273 abolishing the rule in Grant v Norway.274 This
unexplained omission from the Act unfortunately means that a litigant in
New Zealand would not enjoy the same protection that he would enjoy in
any of the other jurisdictions referred to.

264 [1997] 3 HKC 109. See also Nan TungBankLtdv Wangfoong TransportationLtd [1999] 2 HKC 606.
265 One of the main issues in the case was whether the carier had authorized the issue of the switch
bills. See Noble Resources Ltd v CavalierShipping Corporation (The Atlas) [1996] 1 Lloyd's Rep 642; Samsung
Corpv Devon IndustriesSdn Bhd [19961 1 SLR 469;Toh Kian Sing 'Ofstraight and switch bills oflading' 1996
Lloyd's Maritime & Commercial LQ 416.
266 The counterparts ofss 5(2) and 2(1) of the UK Act (found also in the Australian legislation and in
Singapore).
267 On New Zealand, see Peter Spiller (ed) A New Zealand Legal History (1995) chap 2.
268 Act 117 of 1908. See Todd op cit note 134 at 88.
269 Act 132 of 1982.
270 Section 4 of the Act. See Francis Dawson 'New Zealand Privity of Contract Bill' (1982) 2 Oxford
Journal of Legal Studies 448;Johanna Vroegop 'The New Zealand Contracts (Privity) Act 1982' 1984 Journal
of Business Law 88; Todd op cit note 134 at 89; Brian Coote 'The Contracts and Commercial Law Reform
Committee and the contract statutes' (1998-99) 13 New Zealand Universities LR 160 at 169; Privityof Contract:
Contractsfor the Benefit of Third Parties Law Corn No 242 (1996) para 4.9. Cfalso s 1 of the (UK) Contracts
(Rights of Third Parties) Act 1999, c 31.
271 Act 106 of 1994. See Paul Myburgh 'Maritime transport and marine pollution: Law reform in New
Zealand' 1995 Lloyd's Maritime & Commercial LQ 167 at 170; 'Recent developments concerning the forms
of bills of lading -New Zealand' in Yiannopoulos op cit note 76 at 237; Charles Spillane 'The Maritime
Transport Act 1994'(1995) 7 Auckland University LR 1087 at 1089; C C Nicoll 'Significant carriage of goods
by sea reform in New Zealand' (1995) 26Journalof Maritime Law & Commerce 443 at 452.
272 Section 13 and ss 13A-13C.
273 That is, s 4 (UK); s 10 (Qld); s 11 (SA, Tas); s 12 (NSW, Vic, WA); s 6 (HK).
274 See Rowe & Sons Ltd v Union Steamship Co of NZ Ltd (1909) 29 NZLR 97.
342 THE SOUTH AFRICAN LAW JOURNAL

Singapore
The Bills of Lading Act, 275 as it is more appropriately named, 276 applies
the UK Act of 1992 by virtue of the Application of English Law Act 1994.277
In The Shravan278 the High Court concluded that the mere couriering of a
bill of lading to a designated endorsee of a bill of lading was not sufficient
to constitute such a person a 'holder' for the purpose of s 2(1) of the
279
Singapore Act.

THE NEW SOUTH AFRICAN ACT

Legislative background

The catalyst for legislative reform in South Africa was unquestionably the
1992 Act. But this and other shipping-law reforms were also heralded in a
Green Paper,2 80 followed by a White Paper, 281 on National Transport Policy
published during the course of 1996282 and endorsed by the Cabinet. The
Maritime Law Association of South Africa (MLA) 283 took the lead in seeking
legislative reform 284 and co-operated with the Department of Transport in
producing a Draft Bill.285 A version of the Bill was published on 12 December
1997286 and was actively promoted and discussed at the Annual General
Meeting of the MLA in 1998.287 Other interested parties responded to
invitations to comment on the Draft Bill. 288 The Explanatory Memorandum
to the Bill spelt out the object of the Bill:
'Bills of lading are documents of very great and usually fundamental importance in
international transactions relating to goods carried from one country to another by sea. In
these circumstances it has been thought that it is essential that the law of the Republic of
South Africa should deal with bills of lading and other related documents in a way which
can be regarded as acceptable in modem financial circles and has a degree of adaptability to
changing usages.'289

275 Cap 384, Rev Ed, 1994.

276 Except that this is umatisfactory in the sense that it does not suggest that the Act applies to other
sea transport documents.
277 Cap 7A, Rev Ed, 1994. See Tan Lee Meng The Law in Singapore on Carriage of Goods by Sea 2 ed
(1996) 5,273.
278 [1994] 4 SLR 197.
279 That is, the exact equivalent of the UK Act which vests rights of suit in the lawful holder of a bill
of lading. See text to note 169.
280 March 1996: w.transport.gov.za/library
281 20 August 1996.
282 Attention may be drawn to the strategic objectives of the maritime transport policy, namely 'to
facilitate and enhance the expansion of international trade in general, and exports in particular'.
283 A constituent member of the Comit6 Maritime International (CMI): wwMuctshiplawcom
284 As it has done with other legislative reforms as well. See note 2.
285 Much of the drafting work was undertaken by Douglas Shaw QC (of the Durban Bar) and Michael
Posemann (of Adams & Adams, Durban).
286 Department of Transport Notice 1957 GG 18541 of 12 December 1997. Comments were invited
to be directed to Mr Carl Briesch, Chief Directorate Shipping, Department of Transport.
287 An earlier version of the Bill was discussed at the 1997 AGM. This version had also contained
provisions which sought to give interim rights of suit to the cargo insurer, but these were dropped in the
interests of trying to speed the Bill through the legislature.
288 For example, the Association of Shipping Lines (ASL), Grincor Management Services (Pry) Ltd, the
Council of South African Banks (Cosab), and Safrianne.
289 Gazette op cit note 286 para 1.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

While it was hoped that the Bill night be enacted quickly, pressing
legislative business in other critical areas led to delays in the passage of the
draft Bill through Parliament in previous sessions. The Draft Bill was eventually
introduced in the National Assembly on 8 May 2000 by the Minister of
Transport and, having successfully negotiated that House, 290 sent to the
National Council of Provinces (NCOP) in September 2000 for its concur-
rence. 291 Following a short 15-minute debate in the NCOP on 13 November
2000, the Bill was sent to the President for signature and assented to on
5 December 2000.292

Substantiveprovisions
The new Act adopts a broadly similar approach to that of the Australian
states in amending the 1855 Act. However,in some respects it also goes further.
It does not reproduce verbatim the 1992 Act and, while there are obvious
provisions in symmetry with that Act, there are other provisions which are
unique to this Act, notably the provisions on delivery293 and on charterparties
by demise, the latter amending the Admiralty Jurisdiction Regulation Act
of 1983.294

(a) Sea transport documents

The Act places various definitions at the beginning of its provisions. It is
immediately apparent that there are differences with other Commonwealth
legislation. 295 The most significant definition, given the title of the Act, is
of a 'sea transport document' and this is stated to refer to (i) a bill of
lading, 296 (ii) a through bill of lading, 297 (iii) a combined transport bill
of lading, 298 (iv) a sea waybill, 299 or (v) 'any consignment note, 300 combined
transport document or other similar document, relating to the carriage of

290 The Bill was passed by the National Assembly on 19 September 2000. It had been endorsed by the
Portfolio Committee on Transport, with one amendment, on 12June 2000: Parliamentary Announcements,
Tablings and Committee Reports, No 86/2000. See ww.parliament.gov.sa/papers
291 Endorsed by the Select Committee on Public Services on 11 October 2000: see Parliamentary
Announcements, Tablings and Committee Reports, No 128/2000. See wwuwparliament.gov.sa/papers
292 GG 21884 of 13 December 2000.
293 See note 334.
294 See note 356.
295 For example, s 3 (Qld). But cfs 5 (UK).
296 Section 1(a).
297 Section 1(b). This is a bill of lading issued by a carrier for the carriage of goods by more than one
mode of transport. The carrier issuing the document is only principal for one stage of the transport (usually
sea) and acts as agent for the merchant in respect of the other modes. See H D Bateson 'Through bills of
lading' (1889) 5 LQR 424; Law Commission Report, op cit note 51 para 2.47.
298 Section 1(c). This is a document issued by a combined transport operator (or Multimodal Transport
Operator - MTO - see UNCTAD ICC Rules for Multimodal Transport Documents 1992, cl 2.2) where
this individual is the principal throughout the transit 'door-to-door'. See Law Commission Report, op cit
note 51 para 2.47.
299 Section 1(d); s 1 (3) (UK);s 3 (Qld); s 13A(3) (NZ).
30 These are much used in rail and road transport. The Convention on the Contract for the International
Carriage of Goods by Road (CMR) provides that a contract of carriage by road shall be confirmed by a
consignment note (art 9(1)). See M A Clarke InternationalCarriageof Goods by Road: CMR 3 ed (1997); Paul
Budgen FreightForwardingand Goods in Transit (1999) chap 6; Brodie op cit note 72 at 97.
344 THE SOUTH AFRICAN LAW JOURNAL

goods either wholly or partly by sea, irrespective of whether it is transferable

or negotiable'. 30 1 There has been no attempt to provide any precise definition
of the bill of lading, in contrast with the position expressly taken by the Law
Commissions302 and followed in other Commonwealth jurisdictions. 303 A
ship's delivery order, though not expressly mentioned, 304 would clearly fall
within the category of 'other similar documents' recognized in the Act. So
too, presumably, would a 'received for shipment' bill of lading. 305
At first sight, the Act appears to diverge from all the other Commonwealth
legislation in providing that it applies to all carriage documents, irrespective
of whether they are transferable or negotiable. (The Commonwealth legisla-
tion applies only to those bills of lading which are capable of transfer
by endorsement or, in the case of a bearer bill,306 by delivery without
endorsement. 30 )) However, the Act subsequently provides that, in so far as its
provisions on title to sue are concerned, 308 these are to apply only to sea
309
transport documents which are transferable or negotiable.

(b) Application

The Act is unusual in that it applies to all sea transport documents issued
310
after its commencement as well as those issued before it comes into force.
31
This differs from all the other Commonwealth legislation l which provides
that the relevant statutes only apply to contracts entered into after they come
into force. 312 It was believed that a clear statement was needed on the
retrospectivity of the Act in order to avoid certain of the difficulties encoun-
tered with the Admiralty Jurisdiction Regulation Act of 1983.313 The Act is
also intended to apply to proceedings instituted in a court or arbitration
tribunal after its commencement in respect of a cause of action arising either
before or after commencement. 314 Finally, the Act provides that it will apply
to goods consigned to a South African destination or which are landed,
delivered, or discharged at a South African port. 315 Given the unique maritime

301 Section 1(e). Note that this portion ofthe Act was amended by the Portfolio Committee on Transport
(National Assembly).
302 Law Commission Report, op cit note 51 para 2.50. The South African draftsman thought that an
attempt at definition 'might obscure rather than clarify the position': See para 30.1 of the Explanatory
Memorandum to the Draft Bill.
303 See, for example, s 3 (Qld).
304 Cfs 1(4) (UK);s 13A(4) (NZ);s 3 (Qld).
305 See note 38; s (1)(2)(b) (UK); s 3 (Qld); s 13A(2)(b) (NZ).
306 That is,a bill oflading naming'Bearer'or'Holder'as consignee.See Treitel & Reynolds op cit note 37
para 6-005.
307 See s 1(2) (UK);s 3 (Qld);s 13A(2) (NZ).
308 That is, ss 3-6 of the Act.
39 Section 2(2).
310 Section 2(1)(a).
311 With the notable exception of that of New Zealand, which is silent on this matter.
312 See s 6(3) (UK);s 2 (Qld); s 3 (NSW, SA, Tas, Vic, WA).
313 That is, s 6 of that Act (see text to note 10). See the Explanatory Memorandum to the Draft Bill
para 27.
314 Section 2(1)(c).
315 Section 2(1)(b).
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

jurisdiction of the South African courts and the clear benefits to claimants,
there is much sense in making the Act retrospective in this way.

(c) Transfer of documents

The Act provides that a sea transport document may be transferred by an
existing holder either by delivery, with endorsement if necessary, or alterna-
tively by use of a teleconmmunications system or an electronic or other
information technology system. 316 The 'holder' of a sea transport document
is someone who is in possession of the original sea transport document, or
on whose behalf possession is held, and is the person to whom the document
was issued, the consignee named in the document, or the person to whom
317
the document has been transferred.
The Act goes further than other Commonwealth legislation in spelling
out that a person will be regarded as being in possession (or as holding
possession of an original transport document) where the original document
has been lost or cannot, for any reason, be produced by that person or on
behalf of that person and that person or the agent of that person would be
3 18
entitled to possession of the document if the original could be produced.
This significant provision might conceivably be open to abuse and,
319
accordingly, is subject to the provisions of the Act as to bad faith.

(d) Transfer of rights and obligations

The Law Commissions in the United Kingdom took the view that it was
undesirable that liabilities should automatically be enforced against a person
holding a bill of lading. 320 If such were the case, banks 32 1 and others with a
security interest in the bill of lading would be liable. 322 They therefore
concluded that liability should only be imposed where a person took or
demanded delivery of the goods to which the document related. 323 The South
African Act provides that the holder will be subject to the same obligations
and entitled to the same rights against the person by whom or on whose
behalf the document was issued as if the holder were a party to a contract
with that person on the terms of the document. 324 The same holder is the
cessionary 325 of all rights of action for loss or damage to the goods referred

316 Section 3(1).

317 Section 2(2). This provision is broadly similar to s 5(2) (UK); s 3 (Qld).
318 Section 2(3). This provision was apparently included at the suggestion of Bernard Eder QC (Essex
Court Chambers, 24 Lincoln's Inn Fields) during his attendance at the MLA's 1996 AGM. See Department
of Transport Notice 1957, op cit note 286 para 30.3.
319 Section 8. See text to note 349.
320 Law Commission Report, op cit note 51 para 3.15.
321 Banks require a clean bill oflading pursuant to opening a documentary credit in favour ofacustomer.
See Bridge op cit note 9 at 257; D'Arcy, Murray & Cleave op cit note 9 para 15-036.
322 Law Commission Report, op cit note 51 para 3.16.
323 See s 3 (UK);s 8 (Qld);s 13C (NZ).
324 Section 4(1)(a).
325 Generally on the law of cession, see Susan Scott The Law of Cession 2 ed (1991); Dale Hutchison
(ed) Wille's Principles of South African Law 8 ed (1991) 491ff.
346 THE SOUTH AFRICAN LAW JOURNAL

to in the document, whether this arises from contract or ownership of the

goods or otherwise. 326 The Act then provides that the transferor of the docu-
ment is to be regarded as having ceded his rights and obligations to the new
holder 'except in so far as those rights or obligations arise from a delectus
personae327 relating to the holder'.328 It is to be regretted that it has been
necessary to resort to a Latin phrase in this way in a modem Act. However,
in so far as the Act operates within recognized principles of the law of
cession 329 - which accepts that certain rights, of a personal nature or delectus
personae, cannot be ceded without the consent of a debtor - the use of the
phrase makes sense.

(e) Saving of rights

The Act provides for the saving of rights and obligations where those rights
are contained or evidenced in a sea transport document, except to the extent
to which they are affected or varied by the Act. 330 It further provides that the
liability of the consignee or holder 'by reason or in consequence of' that
person being the consignee or holder, that person's receipt of the goods by
reason or in consequence of such consignment, or the transfer of the
document to that person, has full force and effect except to the extent affected
331
or varied by the Act.

(f) Evidence of shipment

In common with all the other Commonwealth legislation, the new Act
provides that any sea transport document representing goods to have been
shipped or received for shipment and signed by the master (or another person
with actual, implied, or ostensible authority to do so) is prima facie evidence
in favour of a holder of the document 332 and conclusive evidence once the
333
document has been transferred or endorsed to a subsequent holder.

(g) Delivery
The provision on delivery is unique to this Act and does not have a
counterpart in any of the Commonwealth legislation. In essence, it seeks to
make statutory provision for a common problem, 334 namely, the heavy
contractual onus cast on the carrier to make delivery only on presentation to

326 Section 4(1)(b).

327 Literally,'choice of person'.
328 Section 4(2).
329 Which are wider than the equivalent English concept of'assignment'(or 'assignation'in Scots law).
330 Section 5(a).
331 Section 5(b).
332 Section 6(i).
333 Section 6(ii).
334 Examined in detail in John F Wilson 'The presentation rule revisited' 1995 Uoyd's Maritime &
Commercial LQ 289; Stephen Girvin 'Presentation of forged bills of lading' 2000 Journal of Business Law8l;
Gaskell op cit note 36 para 14.17.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

him of a valid bill of lading. 335Should the carrier be asked to deliver without
production of the bill of lading, the advice has always been to refuse to make
such delivery,336 because to do otherwise constitutes a breach of contract. Lord
Denning explained in the Privy Council Appeal, Sze Hai Tong Bank Ltd v
Rambler Cycle Co Ltd,337 that it was 'perfectly clear law' that a shipowner who
delivered without production of the bill of lading did so at his peril. His
contractual obligation was to deliver, on production of the bill of lading, to
the person entitled under the bill of lading. 338 The same consequences
339
apparently follow in the event of delivery against a forged bill of lading,
although there is some doubt as to whether this would also follow in the case
of a straight consigned
340
bill of lading. 34 1
The Act provides that the carrier will be discharged from his obligation to
deliver if he makes delivery to 'a person entitled to such delivery'. 342 A person
is 'entitled' only in accordance with the contract and on the terms contained
in the document and 'subject to compliance with any obligation to which
that delivery may be subject' and only if that person is the first person
presenting the document in respect of those goods. 343 However, the carrier
can require any person presenting a sea transport document to establish a right
to delivery and this can be done either by application to court 344 or by any
other means acceptable to the carrier. 345 In the event of the latter, however,
the carrier has to bear the risk that the person has no right to delivery and
can require an acceptable indemnity.346 Delivery made under the section does
not affect any right to damages, unless the court in an application to establish
348
a right to delivery347 orders otherwise.

335 See The Tigress (1863) Br & L 38 [167 ER 286]; The Stettin (1889) 14 PD 142 at 147; Carlberg v
Wemyss 1915 SC 616 at 624; Bardays Bank Ltd v Commissioners of Customs and Excise [1963] 1 Lloyd's Rep
81 at 89; Allied Chemical International Corp v Companhia de Navegacao Lloyd Brasilero 775 F 2d 476 (2d Cir
1985) at 481; C-Art Ltd v Hong Kong Islands Line America SA 940 F 2d 530 (9 Cir 1991); Kuwait Petrolum
Corporation v I & D Oil CarriersLtd (The Honda) [1994] 2 Lloyd's Rep 541 (CA) at 552; Chilewich Partners v
M VAlligator Fortune [1994] 2 Lloyd's Rep 314.
336 See Erichsen v Barkworth (1858) 3 H & N 894 at 898 [157 ER 730 at 732].
337 [1959] AC 577 (PC). See also David Crystal Inc v Cunard Steamship Co 339 F 2d 295 (2 Cir 1964);
Allied Chemical InternationalCorp v Companhia de Navegacao Lloyd Brasileiro 1986 AMC 826 (2d Cir 1985);
SA Sucre Export v Northern River Shipping Ltd (The Sormovskiy 3068) [1994] 2 Lloyd's Rep 266; Kamil Export
(Aust) Pty Ltd v NPL (Australia) Pty Ltd [1996] 1 VR 538 at 548; Primesite Outdoor Advertising v Salviati &
Santori 1999 (1) SA 868 (W) at 880-1; The Stone Gemini [1999] 2 Lloyd's Rep 255 at 263; The Arktis Sky
[2000] 1 SLR 57.
338 At 586.
339 Motis Exports Ltd v DampskibsselskabetAF 1912, A/S [2000] 1 Lloyd's Rep 211 (CA), criticized by
BJ Davenport QC 'Misdelivery: A fndamental breach?'2000 Lloyd's Maritime & Commercial LQ 455.
340 See note 50.
341 See Olivine Electronics Pte Ltd v Seabridge Transport Pte Ltd [1995] 3 SLR 143; Felix W H Chan 'A plea
for certainty: Legal and practical problems in the presentation of non-negotiable bills of lading' (1999) 29
Hong Kong LJ 44.
342 Section 7(1).
343 Section 7(2).
344 Such a process (known as 'interpleading') also exists in English law.
345 Section 7(3)(a), (b).
346 Section 7(3)(c).
347 Section 7(3)(b).
348 Section 7(4).
348 THE SOUTH AFRICAN LAW JOURNAL

(h) Badfaith
The Act contains an overriding provision to the effect that no one in
possession of a sea transport document is entitled to any right or to any defence
or discharge from any obligation if, at the time when possession of the
transport document was acquired, that person knew 'or had reasonable
grounds for believing' that the goods had not been shipped or received for
shipment. 349 This will hold true if the person from whom possession was
350
acquired had no right to transfer the document or any rights thereunder.
A person also has no right or defence or entitlement to discharge from an
obligation if, in the case of making delivery, that person knew or had
reasonable grounds for believing that the person to whom delivery was made
35
had no right to receive delivery. 1

(i) Electronic communications and other regulations

As with all the other Commonwealth statutes, the Act makes proper
provision for EDI. The relevant Minister can make regulations prescribing the
circumstances in which, and the conditions subject to which, a record or
document produced by a telecommunication system or an electronic or other
information technology system is to be regarded as a sea transport docu-
ment. 352 The Minister is also given a wider remit to make regulations
'regarding generally all matters' which are reasonably necessary or expedient
to achieve the objects of the Act. 353 He must, in either event, publish the
proposed regulations for comment at least three months before the date
contemplated for their commencement. 354 He is required to 'take into
355
account' any comments received on the proposed regulations.

() Amendment to the Admiralty JurisdictionRegulation Act of 1983

A final provision of the new Act provides for the insertion of a new
provision in the 1983 Act. This is to the effect that,for the purpose of an action
in rem, a charterer by demise 356 is to be deemed to be, or have been, the owner
of the ship for the period of the charter by demise. 357 This new provision is
to be inserted into the 1983 Act because that Act does not currently make
provision for the charterer by demise (or bareboat charterer). Although one
can understand the reasoning behind this provision, it is unfortunate that this
Act should have been used as the vehicle for amending other legislation which
is not, strictly speaking, concerned with sea transport documents.

39 Section 8(i)(a)(i).
350 Section 8(I)(a)(ii).
351 Section 8(1)(b).
352 Section 9(i)(a).
353 Section 9(1)(b).
354 Section 9(2).
355 Section 9(3).
356 See Hare op cit note 1 para 15-3.1; Mark Davis Bareboat Charters (2000)
357 Section 10.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

Practicalexamples
Example 1
X, a motor car manufacturer in Japan, arranges for the export of car parts
to Durban aboard Y's container vessel. Bills of lading consigned 'to order' are
issued to X who sends them to Z in Durban. Z endorses and delivers the bills
to A. A obtains discharge of the goods at Durban and institutes proceedings
against Y in the Durban High Court for short delivery. He may do so
(a) because his bills of lading are a 'sea transport document' for the purpose
of the Act; 358 (b) because the goods have been consigned to a destination in
South Africa; 359 (c) because the Act applies to proceedings before a South
African court. 360 The same would apply if the car parts had been shipped to
B in Port Elizabeth under a sea waybill or pursuant to a combined transport
bill of lading, or a through bill of lading. 361 The Act is also applicable if any
of the above documents were issued before the commencement of the Act. 362

Example 2
Bulk goods represented by bills of lading and due for delivery at Cape
Town in January 2001 are sold to B1 in October 2000, to B2 in November
2000 and to B3 in December 2000. The goods are delivered inJanuary 2001
but the bills of lading only reach B3 in March 2001. It is meanwhile discovered
that the goods have been damaged by sea water. Assuming that he can prove
his loss, can B3 bring an action against the carrier in the Cape Town High
Court? He can, because the Act provides that he is the cessionary of all rights
of action for loss or damage to the goods. 363

Example 3
A CIF contract between S and B1 in September 2000 specifies delivery at
Richards Bay in December. The goods are delivered to B2, the consignee, but
rejected by him for failing to meet the contract description. 364 B2 sends the
bills of lading back to S but they only reach him in January 2001. Can S still
sue the carrier though the bills of lading no longer give constructive possession
of the goods to which a bill of lading relates? The Act does not make express
provision for rejected goods. 365 S will be regarded as having ceded his rights
of action to B2366 but he could sue the carrier because rights and obligations
are saved under the Act (except to the extent varied or affected by the Act).
The goods rejected were delivered to B2 pursuant to the September 2000

358 See s 2(2).

359 See s 2(1)(b).
360 See s 2(l)(c).
361 All these documents are 'sea transport documents' for the purpose ofs 1.
362 See s 2(1)(a).
363 See s 4(1)(b).
364 On rights of rejection in sale contracts, see Guest op cit note 9 para 19-124 (CIF); para 20-090
(FOB); Bridge op cit note 9 chap 9.
365 Cfs 2(2)(b) (UK);s 6(4) (Qld);s 13B(2)(b) (NZ).
366 See s 4(l).
350 THE SOUTH AFRICAN LAW JOURNAL

sale between S and B1 which had been made before the bills of lading ceased
to be a transferable document of title. It cannot have been the intention of
the Act to divest S of his rights of action under the original contract between
himself and B1.

Example 4
A cargo of ground nuts bound for Durban is loaded at a West African port
and sold by S to BI pursuant to a contract FOB. Fumigation takes place before
the vessel leaves for Durban. While the vessel is en route to Durban, the bills
of lading are endorsed by B1 to B2 and B3. On arrival at Durban, port
inspectors inspect the cargo before permitting discharge to commence.
Khapra beetle is found in the cargo of the vessel and, after protracted
negotiations between C, the carrier, and B3, the vessel is ordered off-berth
and the cargo eventually dumped at sea. 367 C subsequently institutes proceed-
ings in the Durban High Court against B3 for (a) demurrage 368 in respect of
delays following the discovery of the Khapra beetle and (b) an indemnity
under the Hague-Visby Rules. 369 Would B3 be liable to C? Leaving aside the
merits of the claim, 370 which are beyond the scope of this paper, the Act is
371
clear: the holder of the bill of lading is subject to both rights and obligations.

Example 5
Bills of lading, consigned 'to order', are endorsed down a chain of buyers
to B1, B2 and B3, the consignees of a cargo of crude oil loaded in the Persian
Gulf and bound for Durban and Cape Town. At Durban, where discharge is
to be made into B's refinery via the off-shore buoy at Reunion, the cargo
arrives before the bills of lading are received by BI. B1 seeks delivery as against
letters of indemnity.372 Is C, the carrier, bound to accept the indemnity? As a
matter of common law, it is firmly established that the carrier is not bound
to accept such an indemnity.373 This is also reinforced by the Act because C
will only be discharged from his obligation to deliver if he does so against a
'sea transport document'. An indemnity is not such a document. 374 If BI were
to claim that the bills of lading have been lost, should C deliver to him? The
obvious answer is a very firm 'no'. If he were minded to accept such a thing,
C could require an indemnity from B 1 and then discharge the cargo. However

367 See Effort Shipping Co Lid v Linden Management SA (The Giannis NK) [1998] AC 605; Francis Rose

'Liability for dangerous goods' 1998 loyd's Maritime & Commercial LQ 480.
368 On demurrage liabilities, see Hugo Tiberg The Law of Demurrage 4 ed (1995) 585; Boyd, Foxton &
Burrows op cit note 37 art 160; Bridge op cit note 9 para 5.145;John Schofield Laytime and Demurrage4 ed
(2000) 365.
369 See art IV, r 6 of those Rules.
31' For dangerous cargoes, see note 184.
371 See s 4(l)(a); s 3(1) (UK); s 8(1) (Qld); s 13C(1) (NZ).
372 See Hazelwood (2000) op cit note 137 at 188; K X Li 'Acceptability ofP & I club letters as security'

2000 InternationalJournal of Shipping Law 76.

313 See, for example, Cartberg v Wemyss 1915 SC 616; Kuwait Petrolum Corporation v I & D Oil Carriers
Ltd (The Houda) [1994] 2 Lloyd's Rep 541 (CA).
371 Section 1 of the Act; see note 137.
CARRIAGE BY SEA: SEA TRANSPORT DOCUMENTS ACT 2000

such an agreement would be outside the Act, which only makes provision for
a person 'presenting a sea transport document'. 375 If B1 presented a bill of
lading but C were not convinced that he had a right to delivery, the latter
could require B1 to establish his right to delivery.376 This could then be done
by an application to court or any other means acceptable to the carrier. 377 In
any event, the Act makes it clear that B1 is only entitled to delivery if it is
in accordance with the terms of the document and if he is the first person
378
presenting the document in respect of these goods.

CONCLUSIONS
After its protracted parturition, the new Act deserves to be universally
welcomed by all those involved in international trade in South Africa. It brings
the country in line with certain of her major trading partners. 379 Ironically,
at least so far as the common-law world is concerned, 380 there is now a
considerable degree of uniformity on this aspect of the carriage of goods by
38 1
sea, even while uniformity of the substantive law has largely broken down.
The Act remedies the unsatisfactory situation which has prevailed until now,
namely that the Admiralty Jurisdiction Act of 1983 made English law, as it
stood at the commencement of that Act, applicable so far as bills of lading
were concerned. 382 This unfortunate provision meant that South African law
on this subject was shackled to a mid-nineteenth century English statute
passed to remedy a particular feature of English law -privity -which
adversely affected international trade. The new Act therefore remedies what
had become out-of-date law and does so in a modern and efficient fashion.
While experience in the United Kingdom shows that even scrupulously
drafted legislation will attract the attention of the courts, 383 it is to be hoped
that the provisions of this new Act will not attract too vigorous scrutiny, at
least during the earlier stages of its life. Meanwhile, shipping lawyers in South
Africa will fervently hope that no further time is wasted in bringing the Act
into force.

375 Sees 7(3).

376 Sees 7(3)(a).
377 Sees 7(3)(b).
378 Sees 7(2)(a), (b).
379 For the United States, where the Federal Bills of Lading Act ('the Pomerene Act') 49 USCA
§ 80101-80113 governs,see Tetley op cit note 51 at 189; Schoenbaum op cit note 25 para 10-11; P Winship
'Current developments concerning the form of bills of lading - United States' in Yiannopoulos op cit
note 76, 263 at 269; Benedict on Admiralty 7 rev ed (2000) vol 2A para 53.
3' 1 include here mixed jurisdictions, such as South Africa and Scotland.
38i See Michael Sturley 'Uniformity in the law governing the carriage of goods by sea' (1995) 26 Journal
of Maritime Law & Commerce 553; Williamn Tetley 'Uniformity of international private maritime law -The
pros, cons and alternatives to international conventions - How to adopt an international convention' (2000)
34 Tulane Maritime LJ 775; Paul Myburgh 'Uniformity or unilaterahism in the law of carriage of goods by
sea?' (2000) 31 Victoria University of Wellington LR 355.
382 See text to note 10.
383 See text to note 202.