The Sea Transport Documents Act, 65 of 2000, was a remedial statute intended to provide a
solution to the problem of title to sue under the contract of carriage evidenced by sea transport
documents.
At common law a contract of carriage is not transferable. The contract of carriage is ordinarily
concluded between the shipper and the carrier. The consignee lacks title to sue yet in terms of
international sale contracts on C.I.F and F.O.B terms the consignee would be the person who
stood to suffer the loss as risk in the goods passes from seller to buyer when the goods are
loaded on board at the port of shipment.
The Act provides a mechanism to transfer the contractual rights and liabilities with the transfer
of the sea transport document. However section 2(2) restricts the application of the relevant
provisions to documents that are ‘transferable or negotiable’.
By custom of merchants bills of lading made out ‘to order’, and bearer bills of lading, are
transferable and negotiable. However, straight bills of lading and sea waybills are made out to
a named consignee only. These modern forms of sea transport document are increasingly
popular and offer many advantages to traders and ocean carriers. Yet they are both regarded as
non-negotiable.
The dissertation examines the interpretation of the terms ‘transferable’ and ‘negotiable’ as they
came to be applied to both negotiable instruments and bills of lading, and considers current
academic and judicial opinion on the meaning of these terms. The provisions of the Sea
Transport Documents Act are analysed, and compared to the remedies provided in the Carriage
of Goods by Sea Act, 1992 (United Kingdom), similar legislation in other commonwealth
countries and the law in the United States and Europe. Finally alternative means of
establishing title to sue, including the stipulatio alteri, are considered. / Theses (LL.M.)-University of KwaZulu-Natal, Durban, 2013.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ukzn/oai:http://researchspace.ukzn.ac.za:10413/10997 |
| Date | January 2013 |
| Creators | Donnelly, Dusty-Lee. |
| Contributors | Wallis, Malcolm John David. |
| Source Sets | South African National ETD Portal |
| Language | en_ZA |
| Detected Language | English |
| Type | Thesis |
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