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The bill of lading : holder rights and liabilities

Frank Stevens (UGent)
(2017)
Author
Promoter
(UGent)
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Abstract
The carriage of goods by sea starts off with a contract of carriage, an essentially simple and straightforward contract between two parties, the shipper and the carrier. Very often, however, a bill of lading is issued and a third party appears on the scene: the holder of the bill of lading. The holder was not involved in the making of the contract of carriage, but does have rights, and possibly obligations, against the carrier at destination. The holder of the bill of lading is entitled to claim delivery and has title to sue the carrier for loss of or damage to the goods, but he can also be liable to pay freight or other costs. The question then is how the third party holder of the bill acquires those rights and obligations. The thesis analyzes the different theories that have been proposed to explain the position of the third party holder. In doing so, a distinction is made between contractual theories and non-contractual theories. The former try to explain the holder's position by building on the initial contract of carriage and applying contract law mechanisms. The latter, although obviously not denying the existence of the contract of carriage, construe the position of the third party holder independently. Within the group of contractual theories, there is a further distinction to be made between those theories that have the holder succeed to all of the shipper's rights and obligations and thus have the holder step into the shoes of the shipper, and the theories that see the holder's position as contractual but independent, and thus not necessarily identical to the position of the shipper. Within the first group (contractual, identical position) agency, assignment and novation are looked at. The second group (contractual, non-identical position) includes the third party beneficiary clause, multi-party contracts and accession, and direct contracts between the carrier and the holder. The third group (statutory) includes the bill of lading as a quasi-contract, statutes explicitly or implicitly dealing with the holder's position, the bill of lading as a negotiable instrument, the bill of lading as a voluntary engagement and the bill of lading as part of the Lex Maritima. Following the analysis and appraisal of the different theories, the case is made that the position of the third party holder of the bill of lading is not obvious or self-evident; the question what the holder's position is needs to be asked and answered. It is further argued that, al-though it is easy to understand why contractual approaches were initially chosen and are still preferred, they are nevertheless not the best possible solution. It is submitted that a statutory approach to the position of the holder of the bill of lading has advantages and would be preferable.
Keywords
maritime law, bill of lading

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Citation

Please use this url to cite or link to this publication:

MLA
Stevens, Frank. “The Bill of Lading : Holder Rights and Liabilities.” 2017 : n. pag. Print.
APA
Stevens, Frank. (2017). The bill of lading : holder rights and liabilities. Ghent University. Faculty of Law, Ghent, Belgium.
Chicago author-date
Stevens, Frank. 2017. “The Bill of Lading : Holder Rights and Liabilities”. Ghent, Belgium: Ghent University. Faculty of Law.
Chicago author-date (all authors)
Stevens, Frank. 2017. “The Bill of Lading : Holder Rights and Liabilities”. Ghent, Belgium: Ghent University. Faculty of Law.
Vancouver
1.
Stevens F. The bill of lading : holder rights and liabilities. [Ghent, Belgium]: Ghent University. Faculty of Law; 2017.
IEEE
[1]
F. Stevens, “The bill of lading : holder rights and liabilities,” Ghent University. Faculty of Law, Ghent, Belgium, 2017.
@phdthesis{8506215,
  abstract     = {{The carriage of goods by sea starts off with a contract of carriage, an essentially simple and straightforward contract between two parties, the shipper and the carrier. Very often, however, a bill of lading is issued and a third party appears on the scene: the holder of the bill of lading. The holder was not involved in the making of the contract of carriage, but does have rights, and possibly obligations, against the carrier at destination. The holder of the bill of lading is entitled to claim delivery and has title to sue the carrier for loss of or damage to the goods, but he can also be liable to pay freight or other costs. The question then is how the third party holder of the bill acquires those rights and obligations.
The thesis analyzes the different theories that have been proposed to explain the position of the third party holder. In doing so, a distinction is made between contractual theories and non-contractual theories. The former try to explain the holder's position by building on the initial contract of carriage and applying contract law mechanisms. The latter, although obviously not denying the existence of the contract of carriage, construe the position of the third party holder independently. Within the group of contractual theories, there is a further distinction to be made between those theories that have the holder succeed to all of the shipper's rights and obligations and thus have the holder step into the shoes of the shipper, and the theories that see the holder's position as contractual but independent, and thus not necessarily identical to the position of the shipper.
Within the first group (contractual, identical position) agency, assignment and novation are looked at. The second group (contractual, non-identical position) includes the third party beneficiary clause, multi-party contracts and accession, and direct contracts between the carrier and the holder. The third group (statutory) includes the bill of lading as a quasi-contract, statutes explicitly or implicitly dealing with the holder's position, the bill of lading as a negotiable instrument, the bill of lading as a voluntary engagement and the bill of lading as part of the Lex Maritima.
Following the analysis and appraisal of the different theories, the case is made that the position of the third party holder of the bill of lading is not obvious or self-evident; the question what the holder's position is needs to be asked and answered. It is further argued that, al-though it is easy to understand why contractual approaches were initially chosen and are still preferred, they are nevertheless not the best possible solution. It is submitted that a statutory approach to the position of the holder of the bill of lading has advantages and would be preferable.}},
  author       = {{Stevens, Frank}},
  keywords     = {{maritime law,bill of lading}},
  language     = {{eng}},
  pages        = {{VIII, 242}},
  publisher    = {{Ghent University. Faculty of Law}},
  school       = {{Ghent University}},
  title        = {{The bill of lading : holder rights and liabilities}},
  year         = {{2017}},
}