TITLE TO SUE UNDER CONTRACTS OF CARRIAGE OF GOODS BY SEA: A COMPARATIVE ANALYSIS OF TRANSFER OF CONTRACTUAL RIGHTS AND LIABILITIES UNDER A BILL OF LADING IN ENGLISH AND SOUTH AFRICAN LAW EMMANUEL KONGOLO MALANGU Submitted in fulfilment of the requirements for the degree of Masters of Law (Maritime Law) College of Law and Management Studies School of Law University of Kwazulu-Natal (Durban) 2016 DECLARATION OF ORIGINALITY DECLARATION I, Emmanuel Kongolo Malangu, declare that: (i) The research reported in this dissertation,except where otherwise indicated, is my original work. (ii) This dissertation has not been submitted for any degree or examination at any other university. (iii) This dissertation does not contain other persons’ data, pictures, graphs or other information, unless specifically acknowledged as being sourced from other persons. (iv) This dissertation does not contain other persons’ writing, unless specifically acknowledged as being sourced from other researchers. Where other written sources have been quoted, then : (a) Their words have been re-written but the general information attributed to them has been referenced ; (b) Where their exact words have been used, their writing has been placed inside quotation marks, and referenced. (v) Where I have reproduced a publication of which I am author, co-author or editor, I have indicated in detail which part of the publication was actually written by myself alone and have fully referenced such publications. (vi) This dissertation does not contain text, graphics or tables copied and pasted from the Internet, unless specifically acknowledged, and the source being detailed in the disseration and in the References sections Emmanuel Kongolo Malangu Date : 19/12/2016 DEDICATION This dissertation is dedicated to my close friends, my family and my parents in particular, whose unconditional love and support has made this achievement possible. ACKNOWLEDGMENTS It has been an honour and privilege to work under the guidance of my supervisor, Ms Dusty- Lee Donnelly. I am very grateful for her kindness, willingness, patience and wealth of knowledge. I would also like to thank Mr Andrew Clark, partner at Cox Yeats, for his time to answer my questions and to explain to me some of the practical aspects and complexities of carriage of goods by sea. His experience and insights have been of great value. I would also like to thank Mr Andrew Robinson, director at Norton Rose Fulbright, for giving me access to their library. I have greatly benefited from using it. ABSTRACT In carriage of goods by sea the bill of lading is the document through which third parties acquire contractual rights and liabilities. The bill of lading is thus the document which provides title to sue to third parties. Having said that, the bill of lading is very important in determining when and under what circumstances such rights and liabilities are acquired. It is therefore important in cargo claims that either the consignee or the carrier ascertains their rights and liabilities under the bill of lading before instituting legal action. A claim instituted against the wrong party will not be entertained by the Court. South African maritime law was based on the English Bills of Lading Act, 1855. That Act has been replaced by the Carriage of Goods by Sea Act 1992 c.50 (COGSA 1992), which is the Act regulating title to sue in the United Kingdom. The enactment of the South African Sea Transport Documents Act 65 of 2000 (STDA) was inspired by COGSA 1992. Many other countries like New Zealand and Australia have adopted provisions similar to the COGSA 1992. The purpose of this study is to critically analyse the concept of title to sue in cargo claims under a negotiable bill of lading. The focus shall be on the relevant provisions of the South African Sea Transport Document Act 65 of 2000 and the UK Carriage of Goods by Sea Act (C.50) of 1992. CONTENTS 1. CHAPTER ONE: INTRODUCTION 1.1.Introduction 1 1.2.Aim and Scope of dissertation 4 1.3.Terminology of dissertation 5 1.4.Structure of dissertation 6 2. CHAPTER TWO: HISTORICAL BACKROUND AND FUNCTIONS OF THE BILL OF LADING 2.1.Introduction 8 2.2.Origin 8 2.2.1. The Book of lading and the Bill of lading 9 2.3.Functions of the Bill of Lading 11 2.3.1. The Bill of lading as a receipt for goods shipped 11 2.3.1.1.Receipt as quantity 12 2.3.1.2.Receipt as to condition 13 2.3.1.3.Receipt as to leading marks 15 2.3.2. Bill of lading as Evidence of the contract 16 2.3.3. Bill of lading as a Document of title 17 2.4.Conclusion 19 3. CHAPTER THREE: ENGLISH LAW ON TITLE TO SUE 3.1.Introduction 21 3.2.English Common Law 21 3.2.1. The common law doctrine which prevents the transfer of rights to a third party under a bill of lading 21 3.3.Bills of Lading Act, 1855 22 3.3.1. The provision in the Bills of Lading Act, 1855 that made the Act ineffective in solving the common law difficulties created by the common privity of contract doctrine 22 3.4.The Carriage of Goods by Sea Act (C.50) Of 1992 23 3.4.1. Transfer of rights and liabilities 23 3.4.2. Transfer of rights of suit to the holder of a bill of lading 24 3.4.3. Lawful holder of a bill of lading 25 3.4.3.1.The Holder of a spent bill of lading 28 3.4.3.2.Good faith 30 3.4.4. The holder’s capacity to sue on behalf of another person 31 3.4.5. The rights of the holder under a bill of lading 32 3.4.6. Transfer of liabilities to the holder of a bill of lading 33 3.4.7. Whether the holder of the bill of lading retains rights after transfer of the bill of lading to a subsequent holder 36 3.4.8. Whether the holder of the bill of lading retain liabilities after transfer of the bill of lading to a subsequent buyer 37 3.5.Conclusion 38 4. CHAPTER 4: SOUTH AFRICAN LAW ON TITLE TO SUE 4.1.Introduction 40 4.2.South African Common Law 40 4.2.1. Stipulatio Alteri 40 4.2.2. Cession 41 4.3.Sea Transport Documents Act 65 of 2000 42 4.3.1. Transfer of rights and Liabilities 42 4.3.2. Transfer of rights of suit to the holder of a sea transport document 47 4.3.3. Holder of a sea transport document 49 4.3.3.1.Holder of a lost sea transport document 52 4.3.3.2.Mala fide holder 53 4.3.4. Transfer of liabilities to the holder of a sea transport document 54 4.3.5. Whether the holder retains rights of suit upon transfer of a sea transport document 58 4.3.6. Whether the holder retains liabilities upon transfer of a sea transport document 59 4.4.Conclusion 60 5. CHAPTER 5: CONCLUSION 5.1.Introduction 62 5.2.Conclusion of Research questions 62 5.3.Recommendations 64 5.4.Conclusion 65 BIBLIOGRAPHY 66 1 Chapter 1: INTRODUCTION 1.1.Introduction The bill of lading is a very important document in contracts of carriage. Its importance is reflected in its ability to perform three functions: a receipt for the goods, evidence of the contract of carriage and a document of title to the goods. However it is also an essential document to facilitate the transfer of contractual rights and liabilities from a shipper to a consignee. The bill of lading is the document through which a consignee acquires contractual rights of suit. Before a consignee can sue a carrier in contract, he must ensure that he has acquired rights of suit and liabilities under a bill of lading. On the other side, a carrier must also ascertain which party has acquired contractual rights of suit and liabilities under a bill of lading so that he does not find himself instituting an action against a wrong party. The transfer of contractual rights of suit and liabilities does not take place at common law. This thesis will examine the legislatives mechanisms by which such a transfer of rights of suit and liabilities is facilitated in English and South African law. In international trade law a seller from one country normally enters into a sale contract with a buyer from another country. In concluding the sale contract, the seller and the buyer must decide the mode of transport by which the goods will be carried at the port of destination. Various factors will affect whether the goods will be carried by air, road, rail or sea.1 This thesis only discusses the carriage of goods by sea. The seller who is the person responsible for arranging a contract of carriage of goods by sea is known as the shipper. The person with whom the shipper enters into a carriage contract is known as the carrier. The buyer who is the person to whom the goods are delivered by the carrier is known as the consignee.2 A contract of carriage of goods by sea is also called a contract of affreightment. In a carriage contract, the shipper hires a space on a carrier’s vessel so that the carrier may deliver the goods to a consignee as indicated under a bill of lading. The money a carrier receives for his services is called freight. The carriage contract may take two forms: one contained in a 1 JP Van Niekerk ‘An Introducton to the Carriage of Goods by Sea’ (1993) 78 (5) Mercantile L.J.