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.

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 That Act has been replaced by the Carriage of Goods by Sea Act 1992 c.50 (COGSA 1992), which is the Act regulating title to sue in the United Kingdom.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.