UCHE I. OKORIE*

Introduction.

The Bills of Lading Act 1855 (1855 Act) addressed some of the problems of Bills of Lading

in terms of the doctrine of privity of contract. What this presupposes is that prior to the legal

regime of the 1855 Act, a legal regime rooted in the Common Law was the norm.1

With the development of the contractual concepts of consideration and privity an apparent

conflict with the concept of Bill of Ladings arose.2 To get a proper analytical handle we will

raise certain posers. What was the conflict between Bill of Lading’s and privity? How and to

what extent did the 1855 Act try to resolve this conflict? Was the 1855 Act technique

effective?

With the debut of the Carriage of Goods Act 1992 (1992 Act) can we say the Act is a

complete panacea to all the difficulties in this area of the law? What are the shortcomings of

the Act? What should be reformed?

These fundamental queries constitute the gravamen of our discourse. Let’s set sail.

1.0. The Common Law Doctrine of Privity & Bills OF LADING.

The common law and the history of the law of Carriage of Goods (COG) particularly the Bill

of Lading is as fascinating as it is chequered.3 For some centuries the Bill of Lading

principles flourished without hindrance, until the inexorable confrontation with the privity

doctrine as regards third party rights.

The original doctrine of privity consisted of two rules - first, that a third party may not have

obligations imposed by the terms of a contract, and second, that a third party may not benefit

from the terms of a contract.4

1 For the history of the common law see generally ‘(Langbein, 2009) and for the history of BL’s see (Bennett, 1914)

2 See note 5 post.

3 However due to the brevity of this paper and the fact that the historical antecedents of the BL is not part of our enquiry we

would not attempt a historical incursion.

4See (McKendrick, 2007).

It is the second limb that carries the confrontational dagger of threat on Bill of Lading’s in

that it meant that the contractual aspirations and frustrations of a third party was without

redress.

The contest of wits between the two milieus attained notoriety in the Dunlop Pneumatic

case5 where Haldane VC assertively crystallized the privity concept by adumbrating that only

a person who is a party to a contract can sue on it.’6

With such posturing it was not particularly in the realm of rocket science to discern that there

was bound to be conflict between the privity doctrine and the Bill of Lading milieu.

2.0. In what area did this conflict arise?

The intriguing thing was that as at the time of Viscount Haldane’s exposition a third party i.e.

a beneficiary under a trust had rights of suit. But other than this limited exception a third

party was regarded as a stranger to the contract.

In Thompson V. Dominy7 long before the succor that was to eventually come to third

parties, the confrontational potentialities of the privity doctrine was exhibited to devastating

effect regarding third party rights to sue or benefit from the contract. Here the Court of

Exchequer8 in a case involving a part delivery of 1303 barrels of oats, held the endorsee

incapable of maintaining an action in his own name as the effect of the endorsement was only

to transfer the right of property in the goods not the contract itself.

Thus in essence the opinion of the court was that negotiability of a Bill of Lading does not

equate to a right of suit.

The practical effect of this was that third party consignees of goods or endorsees of Bills Of

Lading were incapable of enforcing their rights with the consequent diminution of the value

of a Bill of Lading as a viable trade tool.

5 [1915] UKHL 1

6 Ibid at 853

7 (1845) 14 M & W 403, 153 ER 532

8 Per Parke B, Alderson B, and Rolfe B concurring.

The privity doctrine has been vilified and rightly so by various legal scholars and

commentators.9 Reform of this doctrine in recent times pursuant to the Contracts (Rights of

Third Parties) Act 199910 was greeted with a sigh of relief and heralded with an apt

summation by a learned scholar that the passage of the Act has removed ‘…one of the most

universally disliked and criticized blots on the legal landscape’.11

However before privity finally met its waterloo, the legal quagmire it created led to the

enactment of the 1855 Act.

3.0. How and to what extent did the 1855 Act address this conflict?

The primary technique of the 1855 Act was the effectuation of a transfer of the shipper’s

rights to the consignee or endorsee to whom property in the goods passed upon or by reason

of the consignment or endorsement.12

The disillusion occasioned by the conflict perhaps informed why the 1855 Act very early on

recognized that‘...it is expedient that such Rights (all Rights in respect of the Contract

contained in the Bill of Lading) should pass with the Property’13

Thus the technique was to vest the consignee or endorsee with all rights of suits and liabilities

as if the original contract evidenced by the Bill of Lading was made between him and the

carrier.14

9 At various times it has been criticized by the likes of Lords Denning, Scarman and Reid. See generally (Treitel, 1983)

10Cap 31 has reformed the law in this respect in England. (UK Parliament, 1999). Some jurisdictions including Singapore

via the (Singapore Parliament, 2001) have reformed their law to conform to the UK.

11(Dean, 2000).

12 Section 1, (Parliament, UK, 1855) See generally (Girvin, 2011)

13 See Preamble to the 1855 Act and Note 3 supra for citation.

14 Ibid at Section 1.

Professor Stephen Girvin referred to the effect of Section 1 as a ‘...statutory form of

assignment...’15 saying that ‘In effect, what was transferred to a consignee or endorsee...was

not only the right to sue but the burden in the contract.16 The transferee...did not take the

same contract as the consignor but a new contract on the basis of what appeared on the face

and reverse of the Bill of Lading.’17

One wonders though with the greatest respect, if it can be rightly said that a new contract

exists on the basis of the burden of an extant contract. It appears that what the Act simply did

by s.1 was to retrospectively integrate the consignee or endorsee into the original contract

consummated between the shipper and the carrier. This was done by imbuing the consignee

or endorsee with an additional right to suit hitherto enjoyed by the shipper against the carrier.

Was this a Novation? To the extent that a contract transferred by the novation process

transfers all duties and obligations from the original Bill of Ladings to the new Bill of Lading

and that here there was no stricto sensu a transfer of all duties and obligations from the

original Bill of Lading (the Shipper) to the new Bill of Lading (the Consignee or endorsee) I

would say that it is not a novation.

What is more? The shipper still had a residue of obligations and duties and the requirement

that the consent of all the parties involved in the original agreement must be sought, removes

it from the purview of novation as the existence of chain endorsements without consent

proves. Moreover the consent requirement is a limitation of the shipper’s right to sell the

goods even when it is in transit which offends s.1.

Thus my understanding is that the Act in effect recognized a tripartite contractual

arrangement with varying but mutually compatible rights, incidence and burden on the parties

as the stream of contract flowed towards completion.

Suffice it to say however that the Act brought about a new legal order based on the existence

of an overarching nexus between transfers of contractual rights and the passing of property.

15 At Paragraph 8.12 of page 93 of his book. See Note 3 supra for full citation of the book.

16 Emphasis mine.

17 Ibid.

3.1. Was the primary technique of the 1855 Act in dealing with the privity

challenge effective?

The Act from beginning was replete with challenges casting serious doubt on the

efficacy of the remedy adopted.

Its primary technique ended up being too simplistic a formula. Whilst it tried to solve

one problem it also raised new ones. It proved to be helplessly undiscerning in

deducing the growth and trajectory of International sales contracts which was

imminent in the 19th Century.

To illustrate, it is pertinent we examine s. 1 of the 1855 Act because the drafting of

that section later became the vortex of the main challenges experienced under the

1855 Act. S. 1 of the 1855 Act stipulated as follows:

"Every 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

reason18 of such consignment or endorsement as if the contract contained in the bill of

lading had been made with himself"

This section became the object of judicial scrutiny. Some of the notable cases are x-

rayed below.

3.1.1. Cases involving no intention to transfer property.

In Sewell V Burdick19 by the nature of the vehicle used there was no intention to

transfer property. Here the Ship-owners sued the endorsees of a Bill of Lading

for freight on the basis that liabilities had been transferred to them under s. 1 of

the 1855 Act. The endorsees were not party to the original contract of carriage,

and had taken the Bill of Lading only as security for a loan. The Bills Of Lading

were indorsed in blank and the goods were never delivered.

18 Emphasis mine.

19(1884) 10 App. Cas. 74

Lord Fitzgerald20 opined that the case turned on the nature of a pledgee's

property. A pledgee does not obtain general property in the goods, merely a

special property. This will be true in cases where banks take Bills Of Lading as

security, in exchange for advancing money on a commercial credit, not minding

how the Bill of Lading is indorsed. In such scenarios the Act does not apply and

consequently neither liabilities nor rights of suit are transferred. Without the

transfer of rights of suits the banks (pledgee) cannot sue on the carriage contract

either.

Thus the special relationship that was created in this regards as between pledgor

and pledgee operated to defeat the legitimate interests of the holder of the Bill of

Lading. Faced with such an unsavoury situation one can rightly guess what the

banks reaction was concerning advances and the deleterious effect this would

have had on the growth of trade.

3.1.2. Cases where property passes before or independent of endorsements

An interesting scenario as regards the drafting of S.1 is the court’s interpretation

of the words ‘upon’ or ‘by reason of...’ In these instances property has been held

not to pass before the transfer of the Bill of Lading because the property could

not then be said to pass "by reason" of the transfer of the Bill of Lading.

In the Captain Gregos21, properties passed to the buyer at the time of shipment

and to the sub-buyer when the ship reached the Dutch coasts but the Bills of

Lading were never transferred to the sub-buyer. In consequence neither buyer

was able to claim under the 1855 Act against the carrier for short delivery.

In The Delfini also a case of short-delivery of a cargo of condensate (oil)

shipped in the Delfini from Bejaia, Algeria to Gela in Italy. The argument

advanced in support of the seller was that since the Bill of Lading was not

endorsed in the plaintiff's favour until sometime after discharge, and as it was

made out to seller's order, the sellers had retained a right of disposal, and

property did not therefore pass until endorsement.

20 Ibid at p. 106

21 [1990] 1 Lloyd's Rep. 310

The court in rejecting this argument formulated a dual pronged approach as

opposed to a broad or literal interpretation favoured by Carver or Scrutton22

respectively, of the words ‘upon’ and ‘by reason’ of endorsement used in s. 1.

Mustill LJ opined‘…in my judgment it means that although the endorsement of

the bill is not the immediate occasion of the passing of property, nevertheless it

plays an essential causal part in it.’23

Since delivery was made against an indemnity from the shipper property passed

prior to, and independently of, endorsement of the Bill of Lading, the

consequence being that s. 1 of the 1855 Act could not be triggered as the Bills

of Lading were redundant.

The Delfini’s difficulties can be seen in the realm of international sales contracts

where the passing of property often occurs independently of the transfer of the

Bill of Lading to the buyer. The practice of providing that the title to the cargo

passes to the buyer upon loading on board the vessel is prevalent in oil

transactions, and the Bill of Lading is only received by the buyer long after the

cargo has been discharged from the vessel. If Mustill LJ’s interpretation is to

attain a pride of place it would mean that the buyers in most of these kinds of

contracts would lack recourse to justice as ‘the essential causal part’ criteria in

the Delphini would not be met.

3.1.3. Cases where property passes after endorsement

It is usual for property to pass at the very latest with the transfer of shipping

documents as this often coincides with the parties’ intention. However property

may pass after endorsement or consignment of the Bill of Lading like in cases of

unascertained bulk cargo where under the sales contract property passes on the

goods becoming ascertained.24

22 (Thomas Gilbert Carver, 1971) was of the view that the timing of consignment, endorsement and passing of property are

not necessarily coincidental and does not have to be. Scrutton in ‘(Sir Thomas Edward Scrutton, 1996) on the other hand

preferred the literal and hence narrow interpretation of the section. See (Haselgrove-Spurin, 2004)

23 At Page 274.

24 S. 21 Sale of Goods Act.

In the Aramis the Court of Appeal rejected a contention that the buyer should

have a right to suit against the carrier for short delivery on the grounds of such

right being ‘just and reasonable’ and held that such right was inconsistent with

s.1 of the Act and was a recipe for uncertainty.

Another tricky area is where the parties contract pursuant to the exercise of their

valid contractual intent (usually expressed or couched in title retention clauses)

for the passing of property either subsequent to the transfer of the Bill of Lading

or even after delivery of the goods.

In such a scenario a strict reading of s.1 would operate to bar what would

otherwise have been a legitimate claim by an aggrieved party as the passing of

property here is contractual and not ‘upon or by reason’ of the endorsement.

4.1.4 Cases where property does not pass

In some cases the unascertained goods may get lost in transit thereby rendering

passage inchoate as demonstrated in the Mambre Saccharine25 where goods

which were actually shipped aboard the Algonquin, was later sunk by a German

submarine, with the loss of all the cargo aboard.

Surely it will be naivety flowing from the express wordings of s.1 to expect

relief.

4.1.5. Received for Shipments bill of Ladings

Another sore point of the 1855 Act was that it roundly ignored other categories

of Bills of Lading including the received for shipment Bill of Lading and feted

rather only the shipped Bill of Lading. It also paid scant regard to delivery notes

and combined transport documents involving inland freight.26

25  [1919] 1 K.B. 198

26 See generally (Haselgrove-Spurin, 2004) page 50.

4.1.6. Chain sales.

Situations where the property in the goods moved from one buyer to another in

a chain sometimes raise peculiar challenges. One example is where the rights to

suit pass with the property on endorsement of the Bill of Lading but a

subsequent buyer rejects the goods on a legitimate breach of contract by the

intermediate buyer. Since the subsequent reversal occasioned by the rejection

was not done ‘upon or by reason’ of endorsement as to revert the already vested

right to suit, the intermediate buyer may find himself stuck with the goods

without a right of suit against the carrier.27

In the light of the foregoing, we can conclude that the primary technique adopted by

the 1855 Act was flawed.

4.2. What effects if any did this state of affairs have on the law of COG?

Sir Anthony Lloyd famously warned that unless the law was reformed to provide

security traders may stop using English Law in preference to Dutch Law which was

much more amenable to trade. 28

Despite these defects the 1855 Act held sway until the Gosforth29 decision thrust the

Bill of Lading in the front burner and led to the English Law Commission Working

Paper 11230 which though stayed action on reform was a guide lamp for the

subsequent 1991 report31 that was instrumental in the passage of the 1992 Act.

27 Ibid at page 51.

28 See (Haselgrove-Spurin, 2004) at p. 47.

29 [1986] LMCLQ 4.

30 See generally (Great Britain. Law Commission., n.d.)

31 (The Law Reform Commission and the Scottish Law Reform Commission, 1991)

4.0. Is the 1992 Act the complete panacea to all the difficulties in this area of the law?

The 1992 Act deserves adulation for its reformist agenda. But beyond the ovation ascribing

the trait of omnipotence to it by saying that it is a complete panacea is an audacious

hyperbole.

A look at some of the most popular provisions of the Act reveal that the Act sounded the

reformatory gong when it declared very early on that it was ‘An Act to replace the Bills of

Lading Act 1855 with new provision with respect to bills of lading and certain other shipping

documents.’32 The Act in s1 enlarges the scope of the applicability of the legal regime to

include not just a Bill of Lading but a seaway bill; a ship’s delivery order; and a received for

shipment Bill of Lading which is capable of transfer by indorsement by delivery or without

indorsement as a bearer bill.33

Perhaps to reassure of its futuristic and reformist mind-set, the Act in s.1 (5) gives the

Secretary of State power to make regulations concerning telecommunications and

information technology improvements as regards the transactional use of documents subject

to the Act’s regime including the indorsement, delivery or other transfer of such documents.34

The reformatory nucleus is clearly visible in s.2 as the holder of a Bill of Lading or the

person to whom delivery is to be made is deemed to 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. ‘This

therefore removes the offending provision of the Bill of Lading Act, which stipulated that the

rights of suit could only be transferred if ‘property’ passed ‘upon or by reason of the

consignment or endorsement’, solving the problems for financing banks which were created

by the ruling in Sewell v Burdick’35

32 See the introductory text of the (UK Parliament, 1992)

33

34 This power is made subject however by virtue of s. 1(6) to either Houses of Parliament’s power of annulment.

35 See (Haliwell, n.d.)

S. 2 (2) (b) of the Act states that the rights of suit of the intermediate or original buyer are

preserved upon reacquisition of the cargo in circumstances where the buyer rejects the goods

or documents.

Prof Girvin adumbrates that ‘this section implements one of the Law Commission’s principal

recommendations which was that the lawful holder of a Bill of Lading should be entitled to

assert contractual rights against the carrier, irrespective of the passing of the property in the

goods.’36

It has been judicially postulated by no less a jurist than Chao Hick Tin (JA), that the

underlying purpose of s.2‘is to promote international trade and to facilitate the enforcement

of rights by third parties against the carrier’37

S.2 thus severs the causal link espoused in the Delfini between the passing of property and

the transfer of contractual rights thereby unbundling the passing of property from the rights of

suit.

S.3 stipulates that any person who acquires rights from a Bill of Lading or sea waybill or

ship’s delivery order) under S.2, also assumes any liabilities under the same document as if

he had been party to the original contract of carriage. However, the liability regime can only

be prompted on the act of demand of delivery of the goods or claim to enforce his rights.

But as Millett LJ posited in the Berge Sisar38 “…there is no good reason why his liability

should be additional to instead of in substitution for the liability of the previous holder of the

bill; or why the latter should remain liable merely because he made a claim or demand…”

Halliwell is of the view that ‘this proviso was specifically added to the Act for the protection

of banks holding Bill of Lading as pledgees. The Law Commission felt it necessary to do so in

order to avoid the disastrous effect the automatic imposition of liabilities could have had on

the role played Bill of Lading’s in the financing of international trade.’39

36 (Girvin, 2011) at P. 97. Para 8.19.

37 UCO Bank v. Golden Shore Transportation Pte Ltd (2006) 1 SLR 1 at [40].

38 Borealis AB v Stargas Ltd (The Berge Sisar) [1999] QB 863

39 (Haliwell, n.d.) p. 14.

S.4. of the Act is of the effect that a Bill of Lading representing the goods to have been

shipped on board a vessel, and signed by the master, shall be conclusive evidence against the

carrier of such shipment. This creates a sort of statutory estoppel against the carrier from

denying acts of his authorised agents. One is left to wonder though the policy justification for

leaving seaway bills and delivery orders out of the contemplation of s.4.

5.0. What are the shortcomings of the 1992 Act?

The shortcomings of the 1992 Act include:

a. Scope of documents covered: The Act failed to make a comprehensive provision

for multi-modal transport documents beyond the regime stipulated in s.2. For instance

Merchant delivery orders or undertakings that the ship will deliver are not catered for.

b. The inadequacy of the Extinguishing provisions: There may be situations where

breach of the contract causes loss to a person whose rights to sue have been

extinguished. What happens in this scenario? S.2 (4) allows the ‘lawful holder’ of the

bill to exercise his rights of suit for the benefit of the party suffering the actual loss.

However the transfer of the rights of suits says nothing about the method of

quantification of damages.40 More importantly nothing in the act mandates a

compulsion to do so. The non-mandatory hue of s. 2(4) is thus a potential source of

exasperation for parties suffering actual loss whose rights have been extinguished.

c. Unresolved or hazy areas: There remain some hazy areas. What is the exact scope of

the enforceability of rights between the carrier and the buyer? What is the effect of the

exclusion clauses in the contract of carriage after the contract is transferred?

40 According to (Haselgrove-Spurin, 2004) at page 59 ‘The courts could ask ʺwhat has the buyer lost? ʺ conclude that he has

lost nothing and therefore award nominal damages!’

6.0. Reform Proposals

There continues to be sea transport documents in the light of modern multimodal realities

which still fall outside the scope of the Act, it is suggested that a subsequent amendment

should bring these documents as far as possible within the contemplation of the Act.

It is obvious that the language of the rights of suit provisions still leaves a lot to be desired.

Imprecision is the precursor to uncertainty and uncertainty is bosom friends with chaos. Thus

further amendments are necessary to bring clarity to the hazy areas and adequacy to the

‘extinguishing’ concept.

The Act allows the Secretary of State to make regulations applying its provisions to cases

where EDI is used.41 But no regulation has been made so far despite the pace of technological

development and the development of treaty law. The fact that an important issue such as this

is left for administrative discretion reveals a timid approach.

With the coming into effect of the Rotterdam rules, the time is ripe for domestic legislation to

attain congruence with treaty law.

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