Maritime Law

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A comparative study of the paper and electronic bill of lading under South African law.
(2017) Ngcobo, Sanelisiwe Princess.; Donnelly, Dusty-Lee.
A bill of lading is a document which is acknowledged as a cornerstone in any sea contract of carriage. It is the most significant document facilitating transportation in international sale contracts. The court recognise it as a document of dignity and integrity demanding judicial protection. The paper bill of lading is used world-wide to document and effect international trade. Due to its characteristics of being utilized as a receipts, as evidence of contract and as document of title, traders have scrutinised the capabilities of an electronic bill of lading to replicate these functions. The purpose of this study is to compare the extent to which an electronic bill of lading might be recognised as legally valid under South African law. In so doing, firstly, the functions of the paper and electronic bill of lading will be considered. Relevant legislative and case law issues will also considered where appropriate. Secondly, private registries which have been approved by International groups of P & I clubs governing will be discussed. Finally, the issue of whether an electronic bill is sufficiently competent to replicate the major functions of a paper bill, with specific reference to the document of title function will be discussed.
An examination of the application of the Sea Transport Documents Act 65 of 2000 to title to sue under contracts of carriage evidenced by sea waybills and straight bills of lading.
(2013) Donnelly, Dusty-Lee.; Wallis, Malcolm John David.
The Sea Transport Documents Act, 65 of 2000, was a remedial statute intended to provide a solution to the problem of title to sue under the contract of carriage evidenced by sea transport documents. At common law a contract of carriage is not transferable. The contract of carriage is ordinarily concluded between the shipper and the carrier. The consignee lacks title to sue yet in terms of international sale contracts on C.I.F and F.O.B terms the consignee would be the person who stood to suffer the loss as risk in the goods passes from seller to buyer when the goods are loaded on board at the port of shipment. The Act provides a mechanism to transfer the contractual rights and liabilities with the transfer of the sea transport document. However section 2(2) restricts the application of the relevant provisions to documents that are ‘transferable or negotiable’. By custom of merchants bills of lading made out ‘to order’, and bearer bills of lading, are transferable and negotiable. However, straight bills of lading and sea waybills are made out to a named consignee only. These modern forms of sea transport document are increasingly popular and offer many advantages to traders and ocean carriers. Yet they are both regarded as non-negotiable. The dissertation examines the interpretation of the terms ‘transferable’ and ‘negotiable’ as they came to be applied to both negotiable instruments and bills of lading, and considers current academic and judicial opinion on the meaning of these terms. The provisions of the Sea Transport Documents Act are analysed, and compared to the remedies provided in the Carriage of Goods by Sea Act, 1992 (United Kingdom), similar legislation in other commonwealth countries and the law in the United States and Europe. Finally alternative means of establishing title to sue, including the stipulatio alteri, are considered.
The presentation of the bill of lading, a necessary evil: an examination of the legal implications of the misdelivery of cargo, owing to the non-presentation of the bill of lading, on the rights and duties of carriers and indorsees under South African and English law, and the Hague-Visby rules.
(2019) Rousseau, Chantelle.; Lamb, Deepa.
The transferable nature and function as a document of title allow for bills of lading to be transferred from one consignee to another and for its use as security. The transferring of the bill of lading down a chain of buyers often results in the bill not reaching the final consignee in time to collect the cargo at the port of discharge. The late arrival of bills of lading coupled with the traditional requirement of presentation thereof to obtain delivery of the cargo causes significant practical problems for carriers. In response to these practical problems, carriers have implemented practices to circumvent the presentation rule, such as delivering the cargo without the production of the bill of lading or delivering against a letter of indemnity. These practices have become quite common amongst carriers notwithstanding the possible legal consequences. A carrier that misdelivers the cargo owing to the non-production of the bill of lading will be in breach of its contractual duties and this will affect its rights to rely on the limitations and immunities provided for in the contract of carriage. This study aims to determine whether the presentation rule is a necessary evil and to examine the legal implications on the rights and duties of carriers and endorsees of the misdelivery of cargo owing to the non-presentation of the bill of lading. To determine the necessity of the presentation rule, the effect of the misdelivery of cargo owing to the non-production of the bill of lading on a carrier and endorsee’s rights and duties are considered in the context of the provisions in The Hague-Visby Rules. The enforceability of letters of indemnity under South African and English law is examined. Likewise, the relevant South African and English legislation is examined to determine a bank’s right as the holder of the bill of lading to institute an action against a carrier for the misdelivery of cargo. The effect of an electronic alternative on the presentation rule is also considered. This study was conducted through a literature review which included an analysis and review of legal sources such as legislative provisions, court judgments and academic opinions on the subject. This study concludes that notwithstanding the practical difficulties caused by the presentation rule, it is a well-established admiralty practice that serves a valuable purpose and should be adhered to as far as possible. The use of letters of indemnity to remedy the practical problems caused by the presentation rule is not a viable solution and a more modern and long term solution is needed. One such solution may be the implementation of electronic alternatives such as blockchain technology. However, in order to realise the use of blockchain technology the necessary legal reforms need to first take place.
The role of the demise clause in identifying the carrier under bills of lading.
(2017) Naidoo, Terina Simone.; Donnelly, Dusty-Lee.
No abstract available
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.
(2016) Malangu, Emmanuel Kangolo.; Donnelly, Dusty-Lee.
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.

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Browsing Maritime Law by Subject "Bills of lading."