BILLS OF LADING (Art. 1 (b))EnglandJ. C. MacWilliams Co. Inc. v. Mediterranean Shipping Company S.A. - The "Rafaela S."

(C.A.) [2003] EWCA Civ. 556; [2003] 2 Lloyd's Rep. 113; 2003 A.M.C. 2035

Four containers with printing machinery were carried from Durban to Felixstowe on the m/v

Rosemary

and then from Felixstowe to Boston, their final destination, on the m/v

Rafaela S.

Both vessels were owned by or demise chartered to Mediterranean Shipping Co. S.A. (MSC) of Geneva. A straight bill of lading was issued by MSC at Durban. On the way to Boston the machinery was badly damaged. One of the issues decided by the arbitrators to which the dispute was submitted was whether the straight bill of lading was a bill of lading or a similar document of title within the English Carriage of Goods by Sea Act 1971 which gives to the Hague-Visby Rules the force of law.

If the Hague-Visby Rules did not apply, the US Cogsa limit of liability of US$ 500 per package would have applied. The arbitrators decided that this was not the case and their decision was upheld by the Commercial Court.

Permission was given to the claimants to take a second appeal to the Court of Appeal

Held, by the Court of Appeal, that:

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(1) A straight bill of lading, the production of which is required on delivery, is a bill of lading or similar document of title to which the Hague-Visby Rules apply

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GermanyThe MV "New York Express

", Oberlandesgericht Hamburg (Court of Appeal) 2 November 2000, (Transportrecht 2001, p. 87)*

Two containers with machinery were carried from Bremerhaven to Newark/New Jersey on the MV

New York Express

. The carrier issued an express cargo bill. The express cargo bill provided for the application of German law. After discharging had been completed at Newark and in the course of the handling of the cargo on the terminal, the terminal operator being the carrier's subcontractor, part of the cargo was damaged. The consignee claimed damages from the carrier under the contract of carriage. The issue to be decided by the Court was whether the express cargo bill constituted a bill of lading.

Held, by Hambug Oberlandesgericht (Court of Appeal), that:[1] An express cargo bill is not a bill of lading or similar document of title within the meaning of Art. 1(b) of the Hague-Visby Rules or para. 662 German Commercial Code.

* By the courtesy of Dr. Cristoph Horbach, Lebuhn & Puchta Rechtsanwälte,

Vorsetzen 35, D-20459 Hamburg - cristoph.horbach@lebuhn.de

BILLS OF LADING (Art. 1 (b))Hong Kong Special Administration RegionCarewins Development (China) Limited v. Bright Fortune Shipping Limited and Carewins Development (China) Limited v. Hecny Shipping Limited,

High Court of the Hong Kong Special Administrative Region, 27 July 2006

(http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp - Case no. HCCL 29/2004)

In March 2003 Carewins Development (China) Limited of Hong Kong gave instructions to Bright Fortune Shipping Limited and to Hecny Shipping Limited for the carriage from Hong Kong to Los Angeles of 45 containers of footwear products. All bills of lading were issued by Bright Fortune on its form but some were signed by Bright Fortune "as agents only" and on the reverse side the clause headed "Definitions" so provided, inter alia:

The term "Carrier" means Hecny Shipping Ltd.

All such bills of lading named the buyer of the goods, Artist Fashion, Inc. of Los Angeles as consignee.

Out of the 45 containers 23 were delivered to the warehouse of Artist Fashion, without production of the relevant bills of lading and were subsequently seized by another company , Burberry Limited, who alleged that Artist Fashion had infringed trade marks owned by Burberry.

Carewins, who had net received payment of the goods loaded in the 23 containers, brought proceedings in the High Court of Hong Kong Special Administration against Bright Fortune and Hecny claiming damages for the delivery of the containers without production of the bills of lading.

Hecny denied that it had entered into any contract of carriage with Carewins, since the bills of lading had been issued on a Bright Fortune form and had been signed by Bright Fortune

Held, by the High Court of the Hong Kong Special Administrative Region, that:

[1] A straight bill of lading must be surrendered to the carrier in order obtain delivery of the goods.