Lloyd's Maritime and Commercial Law Quarterly
THE BILL OF LADING AND DELIVERY: THE COMMON LAW ACTIONS
Paul Todd *
This article considers, in a delivery context, the continuing role of the non-contractual actions, and their interrelationship with the contractual regime. After examining the scope retained by the courts to extend or confine these actions, it concludes that they are both unnecessary and undesirable, and argues for the adoption of a restrictive view.
INTRODUCTION
As long ago as 1883, Bowen LJ famously described the bill of lading as “a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be”.1
Indeed, this is essentially no more than a description of its role as a document of title. If this means anything, it must be that the holder of the bill is entitled to take delivery of the goods from the vessel when they arrive at their destination, or to sue the carrier in the event of their non-delivery or misdelivery.
Bowen LJ did not describe the mechanism by which this role was achieved. It is possible that he had in mind the contractual regime, under which contractual rights, including those relating to delivery, passed to successive holders of the bill of lading, under the Bills of Lading Act 1855. However, the 1855 Act does not figure in his judgment, and his earlier reference to the law merchant suggests that he has in mind instead the common law actions in conversion and bailment. Yet the extent of these actions was by no means clear in 1883, and remains fairly murky today.
In truth, the contractual regime will suffice, in most situations, to give effect to the role of the key to the warehouse.2
However, the shakiness of the 1855 Act was revealed, in this
* Professor, University of Plymouth.
The following abbreviations are used in the footnotes:
Bools: M Bools, The Bill of Lading: A Document of Title to Goods
(LLP, 1997);
Debattista: C Debattista, The Sale of Goods Carried by Sea
, 1st edn (Butterworths, 1989); 2nd edn (Butterworths, 1998);
Law Com No. 196: Law Commission and Scottish Law Commission, Rights of Suit in Respect of Carriage of Goods by Sea
: Law Com No. 196; Sc Law Com No. 130 (1991).
1. Sanders Bros
v. Maclean & Co
(1883) 11 QBD 327, 341.
2. Under both the Bills of Lading Act 1855 and the Carriage of Goods by Sea Act 1992, transfer of “rights of suit” included “the contractual right as against the carrier to demand delivery against presentation of the bill of lading and hence the right to possess”: East West Corp
v. DKBS AF 1912 A/S
, Utaniko Ltd
v. P & O Nedlloyd BV
[2002] EWHC 83; [2002] 2 Lloyd’s Rep 182, [50], per
Thomas J. This aspect of the case was not disapproved in the Court of Appeal: [2003] EWCA Civ 83; [2003] QB 1509; [2003] 1 Lloyd’s Rep 239.
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