THAT THE RESPONDENT AND THEIR AGENT, IN BREACH OF CONTRACT DELIVERED THE

CONTAINER 1-5 TO GF DIRECTLY WITHOUT OBTAINING THE SURRENDER OF THE MMT

On 3rd of February 2019, the Claimants notified the respondent to deliver the containers to a
cold store in Hamburg selected by them and handed over the MMT bill of lading to them. But
Subsequently, the Respondents, released the cargo container (1-5) to the GF without the
presentation of the B/L. It is humbly submitted that the B/L entitled claimant to call for
delivery of the cargo and that this entitlement was lost because the cargo was discharged by
the respondent to GF without production of B/L.

It is settled law that an order B/L entitles the holder to call for delivery of the goods. Where
the goods are surrendered to a person other than the holder of the bill of lading, the ship-
owner so delivering is exposed to risk of liability to the holder as held in case of Sze Hai
Tong Bank v Rambler Cycle Co Ltd1. The rule is that goods must not be delivered without
production of a bill of lading should be respected by the ship’s agents. The agent is the party
who most often delivers the goods under the carrier’s instructions. So even if the agent
delivers the goods without a bill of lading, the carrier is generally considered liable for the
wrongful delivery.2

A B/L contains or evidences the contract of carriage between the carrier and the shipper 3. By
virtue of s. 2(1) of the COGSA4, a “lawful holder” of the B/L has vested in him all rights of
suit under the contract of carriage5. The Claimants submit that they are the lawful holders of
the B/L (A) who have the right to delivery of the cargo under the contract of carriage (B).
The Respondents are thus liable for breaching for breaching the contract of carriage by
discharge without the presentation of the bills of lading (C). The Respondents‟ liability is de
hors the rights of the claimant under underlying contract of sale (D).

THE CLAIMANT ARE LAWFUL HOLDER OF THE BILL OF LADING

A person with the possession of the B/L as a result of completion of the delivery of the B/L
by transfer or endorsement is a “lawful holder” under s. 5(2)(b) of the COGSA. The
Claimants submit that the shipper has indorsed the B/L issued to them as security. The B/L
1
[1959] AC 576 at 586.
2
Orient Power Carstereos Ltd. V. KK Shosen Mitsui, District Court of Tokyo 29 Mai 2001 (2001) Kaijihou
Kenkyukaishi 163, 86.
3
Glyn Mills & Co. v East and West India Dock Co [1882] 7 App. Cas. 591, 596
4
Hereinafter COGSA
5
Borealis AB v Stargas Ltd and another -The Berge Star [2002] 2 AC 205, 226 [30].
now functions as a bearer bill and can be transferred by delivery alone without indorsement6.
The Claimants are in possession by virtue of delivery, and are thus the lawful holders of the
B/L. Additionally, they are the holders of the B/L in good faith under s. 5(2) of the COGSA
as they hold the B/L on the payment of entire purchase price on the cargo 7. All rights of suit
under the B/L contract thus stand transferred to the Claimants.8

It is humbly submitted that, the delivery of bills to claimant was not solely to enable it to
collect payment from GF, but entitled it to have the cargo delivered to it if its debt was not
satisfied. To elaborate, the bills of lading indorsed and delivered to claimant served two
purposes.

1). First, the bank received the bills to remit to the GF for collection of payment against
documents. It is received as a part of the process and means of on-selling the cargo to GF
when it remits the documents for collection on D/P basis. The bank’s role is as agent to
present the documents for collection. This is where the bank-customer relationship is evident

2) Secondly, the bills of lading also served as a means of securing the bank’s advance. It is
security in respect of the cargo which is subject of the bills of lading in the event that
payment is not made. Claimant is entitled to have the documents back if the documents are
not taken up. The contract of carriage generally continues and the bill of lading remains
effective, until the goods are delivered to the person entitled under the bill of lading9

CLAIMANT HAVE THE TITLE TO SUE

The words “rights of suit” have not been defined under the COGSA. However, East West
Corporation10 recognized that the right includes the right to delivery of the cargo on the
presentation of the B/L. Any interpretation of the “rights of suit” to the contrary would lead
to an absurdity as the carrier can circumvent any potential claim under the contract of
carriage merely by withholding delivery11. Accordingly, the contractual right to the delivery
of the cargo is vested in the Claimants. The Respondents have breached the contract of
carriage by delivering the goods to the Sellers, and are liable to the Claimants for the same.

6
GH Treitel and FMB Reynolds, Carver on Bills of Lading ( 3rd ed. , Sweet and Maxwell, 2011) 12.
7
Aegean Sea Traders Corp v Repsol Petroleo SA & Anor- The “Aegean Sea” [1998] CLC 1090, 1118.
8
101 Carriage of Goods by Sea act, 1992, s 2(1).
9
The Future Express [1992] 2 Lloyd’s Rep 79
10
East West Corporation v DKBS 1912 and AKTS Svenborg [2002] EWHC 83 (Comm) [50]; Borealis AB v
Stargas Ltd and another – The “Berge Star” [2002] 2 AC 205, 226 [Para 31].
11
C Debattista, Bills of Lading in Export Trade (3rd edn, Bloomsbury Professional, 2008) 2.8.
 CLAIMANT HAD THE IMMEDIATE RIGHT TO POSSESSION OF THE GOODS

It universally accepted that the transfer of bill of lading operates as a transfer of possession of
goods described in it, by means of legal fiction, the bill of lading is deemed to represent the
goods so that possession of the bill of lading is equivalent to the possession of goods. The
bill of lading act as a symbol of the goods and it transfer represent a symbolic delivery of the
goods with the same effect as a physical delivery of the goods.

Possession is one of the three circumstances enumerated in section 5(2) of BLA. (1) First,
under section 5(2)(a) a person is a holder if he is the consignee by virtue of being the person
identified in the bill”. A document naming a consignee without further qualification may
under section 1(2)(a) be a sea waybill not a bill of lading for the purposes of the Act.
Secondly, under section 5(2)(b) a holder is a person “with possession of the bill as a result of
the completion, by delivery of the bill, of any indorsement of the bill, or in the case of a
bearer bill, or any other transfer of the bill”. Thirdly, under section 5(2)(c) a holder is a
person “with possession of the bill as a result of any transaction by virtue of which he would
have become a holder falling within paragraph (a) or (b) above had not the transaction been
effected when the possession of the bill no longer gave a right (as against the carrier) to
possession of the goods to which the bill relates.

The Claimants submit that they are the lawful holders of the B/L on the payment of the
purchase price and property in the cargo has thus passed to them 12. In any event, the
Claimants submit that a Court will not look behind the B/L to determine who is entitled to the
delivery of the goods. Courts do not disregard the rights of the indorsee of a B/L, even though
the indorsee has no interest in the goods in order to hold the owners of the goods as lawful
holders of the B/L.13 Hence, the lawful holder has vested in him all the rights under the
contract of carriage regardless of his interest in the goods according to the underlying
contract. Consequently, a carrier who refuses to deliver the goods to the lawful holder of the
B/L is liable even if this is in pursuance of the unpaid seller‟s right to stop the goods in
transit14. Herein, the Claimants submit that they are the lawful holders of the B/L; and no
recourse may be taken to the contract of sale to justify non-delivery

12
Benjamin, Sale of Goods (8th edn, Sweet and Maxwell, 2010)18-116.
13
109Bandung Shipping Pte Ltd v Keppel Tatlee Bank Ltd [2003] 1 SLR 295[27] ; East West Corporation v
DKBS 1912 and AKTS Svenborg [2002] EWHC 83 (Comm) [22] ; UCO Bank v Golden Shore Transportation
Pte Ltd [2006] 1 SLR
14
C Debattista, Bills of Lading in Export Trade (3rd edn, Bloomsbury Professional, 2008) 2.53.
THE RESPONDENT ARE LIABLE FOR THE DELIVERY WITHOUT THE PRESENTATION OF THE
B/L

It is the essence of the B/L contract that the carrier is bound to deliver only against the
presentation of the bill of lading 15. A carrier who delivers without the production of the B/L
does so at his risk and peril16. He is liable for the breach of the B/L contract even if he has
delivered to a person entitled to the possession of the cargo 17. Here, the Respondents have
discharged the cargo to GF without the presentation of the B/L. They are thus liable in breach
of contract to the Claimants, the lawful holders of the B/L.

A holder of the bill of lading is entitled to sue in contract in respect of any breach of contract
committed even prior to the time at which the claimant became holder of the bill. A lawful
holder is defined by the Act as a person in possession of the bill who is either the consignee
or the indorsee to whom the bill has been transferred in good faith. The contract of carriage
generally continues and the bill of lading remains effective until the goods are delivered to
the person entitled under the bill of lading. In the case of The Future Express 18, the bill of
lading was not spent or exhausted as delivery was not to the person who had a right to
demand delivery or was entitled to them. The goods were delivered against an indemnity to a
person who did not have a right to delivery under the bill of lading. The decision was
affirmed on grounds that made it unnecessary for the Court of Appeal to decide on the issue
whether the bill of lading was spent

CLAIMANT HAVE INCURRED A LOSS OF USD 329, 150 FOR THE CONTAINERS 1-5

The Respondents may contend that no such right to recover damages arises unless the
Claimants establish an interest in the goods, as it has suffered no loss. The Claimants submit
that such an argument is rendered otiose by Section 2(4) of the COGSA which expressly
allows a party to recover damages regardless of whether he suffered a personal loss, upon the
strength of the B/L19. Respondents were constituted as the bailee‟s carrier have attorned to
the Claimants on the indorsement of the B/L in their favour.20 Therefore, the Respondents
15
Motis Exports Ltd v Dampskibsselskabet AF 1912, Aktieselskab & Anor [1999] CLC 914 ( Queen‟s Bench) 918;
Sucre Export SA v Northern River Shipping Ltd - The Sormovskiy 3068 [1994] CLC 433, 442; JI MacWilliam Co Inc
v Mediterranean Shipping Company SA – The Rafaela [2005] UKHL 11.
16
Sze Hai Tong Bank Ltd v Rambler Cycle Co. Ltd. [1959] AC 576, 586
17
Kuwait Petroleum Corporation v I & D Oil Caterers - The Houda [1994] 2 Lloyd‟s Rep 541 , 553; Sucre Export
SA v Northern River Shipping Ltd - The Sormovskiy 3068 [1994] CLC 433, 442
18
[1992] 1 Lloyd’s Rep 252.
19
Paul v National SS Co (1937) 43 Com Cas 68; The Kelo [1984] 2 Llyod‟s Rep. 85.
20
Borealis AB v Stargas Ltd and another - The “Berge Star” [2002] 2 AC 205, 226 [30]; P Todd, „The Bill of
Lading and Delivery: Common Law Actions‟ [2006] LMCQ 539, 546-548.
hold the goods as the bailees of the Claimants and are obliged to return the goods on
presentation of the B/L.21 Hence, they are liable to the Claimants for non-delivery of the
cargo.

Respondents are liable for non-delivery of cargo. The measure of damages for non-delivery is
the true value of the cargo, which is the market price of the goods at the time 22 and place they
ought to have been delivered. 23 In the present case, the contractual place of delivery was
Hamburg. Therefore, the Respondents are liable to the extent of market price at Hamburg.

The object and purpose of the COGSA is to sever the link between contractual rights under
the B/L and any property rights under the contract of sale. 24 It sought to remedy the injustices
wrought by the 1855 Act which linked contractual rights under the B/L to the ownership of
goods by virtue of the indorsement of the B/L.25 Any attempt to restrict the right to delivery
of the lawful holder on the basis of the property rights. under the underlying contract of sale
would defeat the very objective of the 1992 act and restore the position under the 1855 Act26

RESPONDENT ARE LIABLE FOR THE CONVERSION OF THE CONTAINERS

In the Kuwait Airways case27, Lord Nicholls said that in general, the basic features of the tort
of conversion are threefold. First, the defendant’s conduct was inconsistent with the rights of
the owner (or other person entitled to possession). Second, the conduct was deliberate, not
accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as
to exclude him from use and possession of the goods. These all conditions are satisfied by act
of the respondent. The paradigm act of wrongful interference with goods by a carrier is

21
Norman Palmer, Palmer on Bailment (3rd edn., Sweet and Maxwell., 2009) 798
123 Sanders v Maclean (1883) 11 QBD 327, 341
22
Sharpe (C) & Co Ltd v Nosawa & Co [1917] 2 KB 814 (KBD).
23
Tai Hing Cotton Mill Ltd v Kamsing Knitting Factory [1979] AC 91; Rodocanachi v Milburn (1886) 18 QBD 67
(CA); HG Beale (ed), Chitty on Contracts (Common Law Library, 31st edn, Sweet & Maxwell, 2012) 1856;
Attorney
General of the Republic of Ghana v Texaco Overseas Tankships Ltd – “Texaco Melbourne” (1993) 1 Lloyd‟s Rep
471 (CA).
24
Law Commission, Rights of Suit in Respect of Carriage of Goods by Sea ( Law Com. No. 196) Para 2.27
; Aegan Sea Traders Corp v Respol Petroleo SA [1998] CLC 1090, 1117; Bandung Shipping Pte Ltd v Keppel
Tatlee Bank Ltd [2003] 1 SLR 295 ; Borealis AB v Stargas Ltd and another -The Berge Star [2002] 2 AC 205,
226 .
25
The Bill of Lading Act, 1855, s 1; The Future Express [1993] 2 Lloyd‟s Rep 542 (CA); Enichem Anic SpA v
Ampelos Shipping Company Ltd – The “Delfini” [1990] 1 Lloyd's Rep 252.
26
Aegan Sea Traders Corp v Respol Petroleo SA [1998] CLC 1090, 1117; Bandung Shipping Pte Ltd v Keppel
Tatlee Bank Ltd [2003] 1 SLR 295 [27]; East West Corporation v DKBS 1912 and AKTS Svenborg [2002]
EWHC 83 (Comm)
[22]
27
[2002] 2 A.C. 833, 1084, para. 39.
delivery without production of the bill of lading. carrier who refuses to deliver to a person
who is entitled to it commits tort of wrongful interference with goods28

It is submitted that as a consequence of being furnished with the shipping documents, upon
making payment to GF’s suppliers, claimant acquired a “special property” as pledgee in the
cargo sufficient to entitle it to sue in conversion. Furthermore, claimant is entitled to sue in
contract, as it is the lawful holder of bills of lading that had been indorsed in blank and
delivered to it. The deposit of a generally indorsed bill of lading with the intention of creating
a pledge over the cargo operates to render the pledgee the holder of the bill under the Bill of
Lading Act. As a consequence contractual rights of suit against the carrier are transferred to
the pledgee: s2(1). S5(2)(b) refers to the completion “of any other transfer of the bill”. A
transfer by way of pledge would fall within those word.

The object and purpose of the COGSA is to sever the link between contractual rights under
the B/L and any property rights under the contract of sale. 29 It sought to remedy the injustices
wrought by the 1855 Act which linked contractual rights under the B/L to the ownership of
goods by virtue of the indorsement of the B/L.30 Any attempt to restrict the right to delivery
of the lawful holder on the basis of the property rights. Any attempt to restrict the right to
delivery of the lawful holder on the basis of the property rights. under the underlying contract
of sale would defeat the very objective of the 1992 act and restore the position under the 1855
Act31.

The enforcement of the right to delivery against a carrier would be the most commercially
prudent interpretation of the rights under a B/L as the object of the COGSA is to uphold the
security of the B/L, and offer certainty to any holder of the B/L. The carrier, whose
knowledge of the transaction is restricted the contract of carriage must not be permitted to
cause hardship to the holder of the B/L based on an inadequate understanding of the contract
of sale. Further, it would lead to no injustice even in the event the seller has a superior claim
in property as against the owner. That question is strictly res inter alios acta and is to be

28
See, e.g., Glyn Mills Currie & Co. v East and West India Dock Co. (1882) 7 App. Cas. 591, The Stone Gemini
[1999] 2 Lloyd’s Rep. 255, East West (above), the Motis case [2000] 1 Lloyd’s Rep. 211, Sze Hai Tong Bank
Ltd. v Rambler Cycle Co. Ltd. [1959] A.C. 576, The Sormovskiy 3068 [1994] 2 Lloyd’s Rep. 266.
29
112 Law Commission, Rights of Suit in Respect of Carriage of Goods by Sea ( Law Com. No. 196) Para 2.27
; Aegan Sea Traders Corp v Respol Petroleo SA [1998] CLC 1090, 1117; Bandung Shipping Pte Ltd v Keppel
Tatlee Bank Ltd [2003] 1 SLR 295 ; Borealis AB v Stargas Ltd and another -The Berge Star [2002] 2 AC 205,
226 .
30
The Bill of Lading Act, 1855, s 1; The Future Express [1993] 2 Lloyd‟s Rep 542 (CA); Enichem Anic SpA v
Ampelos Shipping Company Ltd – The “Delfini” [1990] 1 Lloyd's Rep 252
31
Paul v National SS Co (1937) 43 Com Cas 68; The Kelo [1984] 2 Llyod‟s Rep. 85.
determined in an arbitration / suit between the buyers and the sellers and is of no relevance to
the carrier concerned.32 If the sellers are successful in the arbitration between the two parties,
the Claimants will have a duty to account to them. 33 It is well recognized in common law that
a duty to account to a third party is never a bar to recovering damages in a suit.34

The Respondents may contend that no such right to recover damages arises unless the
Claimants establish an interest in the goods, as it has suffered no loss. The Claimants submit
that such an argument is rendered otiose by Section 2(4) of the COGSA which expressly
allows a party to recover damages regardless of whether he suffered a personal loss, upon the
strength of the B/L35. Respondents were constituted as the bailee‟s carrier have attorned to
the Claimants on the indorsement of the B/L in their favour.36 Therefore, the Respondents
hold the goods as the bailees of the Claimants and are obliged to return the goods on
presentation of the B/L.37 Hence, they are liable to the Claimants for non-delivery of the
cargo

A B/L is a “key to the warehouse” 38 and a document transferring constructive possession of

RESPONDENT ARE LIABLE TO CLAIMANT IN CONTRACT OF BAILMENT

Cargo was pledge to claimant by the deposit of indorsed bill of lading. The bank as pledgee
became the holder of the bill of lading by virtue of the section 5(2)(b) of the BLA. A holder is
entitled to sue in contract in respect of any breach of contract committed even prior to the
time at which the claimant became holder of the bill of lading. MPLC was holder who came
within the provision of section 2(2) of the BLA and the extended definition of holder in
section 5(2). A holder of bill of lading which is indorsed after the could still sue the carrier in
contract. The Claimant acquire a right to suit pursuant to section 2 of the Bill of lading. In

32
Law Commission, Rights of Suit in Respect of Carriage of Goods by Sea (Law Com. No. 196) Para 2.25.
33
Antariksa Logistics v McTrans Cargo [2012] SGHC 154.
34
The Sanix Ace. [1987] 1 Lloyd‟s Law Rep.465.
35
Paul v National SS Co (1937) 43 Com Cas 68; The Kelo [1984] 2 Llyod‟s Rep. 85.
36
Borealis AB v Stargas Ltd and another - The “Berge Star” [2002] 2 AC 205, 226 [30]; P Todd, „The Bill of
Lading and Delivery: Common Law Actions‟ [2006] LMCQ 539, 546-548.
37
Norman Palmer, Palmer on Bailment (3rd edn., Sweet and Maxwell., 2009) 798
123 Sanders v Maclean (1883) 11 QBD 327, 341
38
Sanders v Maclean (1883) 11 QBD 327, 341.
39
P Todd, „The Bill of Lading and Delivery: Common Law Actions‟ [2006] LMCQ 4( Nov) 539, 545.
40
MCC Proceeds Inc v Lehman Bros International (Europe)[1998] 4 All ER 675, 686.
Barber v Meyerstein41, a bill of lading was pledged for a loan after the goods have been
landed but were still held at the wharf on behalf of the shipowner pending payment of freight.
It was held (at 330 and 332) that the bill was not yet spent at the time of pledge as the goods
have not yet been delivered to a person entitled to possession of the same. e. More than a
hundred years later, Barber v Meyerstein continued to be cited with approval in The Delfini42

41
(1870) LR 4 HL 317.
42
1990] 1 Lloyd’s Rep 252 (per Mustill LJ at 269)