Transferring Rights of Suit Under Bills of Lading: The Conflict of Laws Implications

Nicholas William Dovell Francis

Abstract


This article explores the conflict of laws implications for rights of suit under bills of lading.

The issue of the transferability of rights of suit under a bill of lading historically arises from the nature of a bill of lading as a negotiable instrument of title. Recent law changes in England by the Carriage of Goods by Sea Act 1992 and in New Zealand by the Mercantile Law Amendment Act 1994 have changed the way a bill of lading is transferred, severing the link between passing of property and rights under the bill of lading in favour of a ‘lawful holder’ approach. The fact that this was done at a national, rather than an international, level has implications for conflict of laws theory that have not been dealt with adequately at this time.

This article considers the functional development of the bill of lading and the source of the problem that inhibits its transfer followed by examining the changes to the statutory transfer schemes in place in New Zealand and England.

It then considers the nature of the problems that arise from applying conflict of laws theory to bills of lading, examining how the Mercantile Law Amendment Act 1994 applies, including whether it could be considered an overriding statute, and other issues relating to characterisation. I propose that on a doctrinally correct approach to conflict of laws theory the statutory ‘lawful holder’ rule can not be applied in an indiscriminate fashion to cover all bills of lading in New Zealand.

Finally, this article draws upon the prior discussion to advance an argument in favour of an international solution to the issue of transferring rights of suit under a bill of lading. In doing so, it concludes that the most appropriate way forward is through the CMI/UNCITRAL Draft Instrument on the Carriage of Goods.

Keywords


Bill of lading, conflict of laws

Full Text:

PDF