Strike delivers legal conundrum

The now 11-week-old postal strike has just delivered a complicated legal conundrum to a frustrated cargo owner, according to Peter Lamb, shipping lawyer at Norton Rose Fulbright. “Over the last week we were approached by a cargo interest whose bills of lading had not been delivered by the Post Office. “He wanted to know how he could get the release of his containers without presentation of the original bills of lading.” The overall answer to that is “he shouldn’t”, according to Lamb. “The holder of the original bill of lading could claim delivery of the cargo against the presentation of that bill, he said. “And, in those circumstances, the delivery by the carrier to anyone other than the holder is a clear, and serious, breach of the carrier’s obligations under the contract of carriage.” Lamb considered it only natural that carriers were concerned about releasing cargo without presentation of the original bills of lading. “A carrier is only discharged from the obligation to deliver if the carrier makes delivery of the cargo to a person entitled to delivery,” he said. So, if the carrier delivers the cargo to the wrong person, he bears the risk of being hit over the head legally by the true holder of the bill of lading. The only way around the problem for the cargo owner without those vital bills of lading would be in terms of the Sea Transport Document Act, Lamb told FTW, which is arguably applicable to all inward bound cargo. “The carrier can mitigate this risk by demanding that the cargo interest approach the High Court for an order that: 1. Declares the cargo interest to be regarded as being in possession of the original bills of lading; 2. Directs the carrier to release the cargo to that cargo interest; and 3. Discharges the carrier from its obligation to deliver the cargo to any other person.” But is a South African court order enough? That’s a tricky question, according to Lamb, because often the contracts of carriages evidenced by bills of lading are subject to foreign laws and jurisdictions. “Will those jurisdictions recognise a South African court order?” he asked. “That is a risk that a carrier may not be willing to take, and may require the cargo interest to put up security in addition to obtaining a court order. Other forms of security would be an indemnity from the cargo interest or a guarantee by the cargo interest’s bank. “These additional security documents would make provision for the risk of the true holder of the bill of lading approaching the court nominated in the bill of lading, for relief.”