Lloyd's Maritime and Commercial Law Quarterly
THE CONSIGNEE’S RIGHT OF ACTION AGAINST THE CARRIER OF GOODS BY SEA
The Captain Gregos (No. 2)
A perennial problem, the right of a consignee of goods carried by sea to sue the carrier, has come once again before the Court of Appeal in The Captain Gregos (No. 2).1 In the absence of a right of action under the Bills of Lading Act 1855, “it became the universal practice in the Temple to plead an implied contract as justifying the consignee’s title to sue”.2 The implied contract, on the terms of the relevant transport document, is formed when the carrier delivers the goods in exchange for the document, be it a bill of lading3 or a delivery order,4 or even a guarantee that the bill of lading will be presented in due course.5 The implied contract was recognized by the Court of Appeal in Brandt v. Liverpool
6 but is “far more often pleaded than established by judicial decision”.7
Although it is a ritual incantation, that the implication of any such contract depends on the circumstances of the case, in 1988, Sir Anthony Lloyd pronounced that “the implied contract, as a device, has reached the end of the road”8 and in
1. Cia Portorafti Commerciale S.A. v. Ultramar Panama Inc. (The Captain Gregos) (No. 2)
[1990] 2 Lloyd’s Rep. 395. Other aspects of the litigation have been reported: [1989] 2 Lloyd’s Rep. 63; noted [1989] LMCLQ 394; [1990] 1 Lloyd’s Rep. 310 (C.A.); noted [1990] LMCLQ 314.
2. Lloyd, “The bill of lading: do we really need it?” [1989] LMCLQ 47, 52.
3. Brandt v. Liverpool, Brazil & River Plate S.N. Co. [1924] 1 K.B. 575 (C.A.).
4. If the order refers to the bill of lading: The Dona Mari [1974] 1 W.L.R. 341.
5. The Elli 2
[1985] 1 Lloyd’s Rep. 107 (C. A.). Benjamin’s Sale of Goods, 3rd edn. (1987) (hereafter “Benjamin”), para. 1457.
6. Supra, fn. 3, in application of a rule that predates the Bills of Lading Act 1855: Benjamin, paras, 1455, 1457. Cases earlier than Brandt v. Liverpool are reviewed in The Aramis
[1989] 1 Lloyd’s Rep. 213, 218 (Bingham, L.J.); see also Powles [1989] J.B.L 157.
7. The Aliakmon
[1983] 1 Lloyd’s Rep. 203, 207, per Staughton, J.
8. Supra, fn. 2, at p. 53.
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