THE BILL OF LADING AS THE CONTRACT OF CARRIAGE—A REASSESSMENT OF LEDUC v. WARD.

DOIhttp://doi.org/10.1111/j.1468-2230.1982.tb02498.x
Published date01 November 1982
Date01 November 1982
THE
BILL
OF
LADING AS
THE
CONTRACT
OF
CARRIAGE-A REASSESSMENT
OF
LEDUC
v.
WARD
THIS
paper seeks to examine the impact of the judgments given in
the Court of Appeal in
Leduc
v.
Ward
l
upon the question whether
the bill of lading issued under
a
contract of carriage contains that
contract or
is
merely evidence of its terms,
This
question has tradi-
tionally been answered according as to whether the reIationship
being observed was that between the carrier and the original shipper
or that between the carrier and subsequent endorsees
of
the bill of
lading, and it is within the context of the latter relationship that
a
niche is commonly reserved for
Leduc’s
case. In deference to tradi-
tion, that same classification will be followed here: it will be
suggested, however, that
Leduc’s
case is authority for the proposi-
tion that the bill
of
lading contains the contract
of
carriage not only
between the carrier and subsequent endorsees but also between the
carrier and the original shipper. This reading goes directly counter
to
the received interpretation
of
the case and, if accepted.
would
necessitate
a
close reassessment of the case law in the area.
I.
THE
RELATIONSHIP BETWEEN
THE
CARRIER
AND
THE
ORIGINAL SHIPPER
In
this relationship it
is
said that the bill of lading is not itself the
contract
of
carriage, but that it
is
merely evidence
of
that contract.
The authority most frequently cited for this proposition is an
obiter
dictum
by Lord Bramwell in
Sewell
v.
Burdick.’
Speaking about the
Bills
of
Lading Act
1855,
Lord Bramwell says
:
“There
is,
I
think, another inaccuracy in the statute.
.
.
.
It
speaks
of
the contract contained in the bill
of
lading. To my
mind, there
is
no contract in it. It is
a
receipt
for
the goods,
stating the terms on which they were delivered to and received
by the ship, and therefore excellent evidence
of
those terms,
but it is not
a
contract.”
Despite some earlier voices in support of the contrary view,‘ this
dictum has been accepted as representing the true state
of
the law
ever since
1884.5
The independence in point
of
time between the
moment
of
conclusion
of
the
contract of carriage and the issue
of
the bill
of
lading is explained by the fact that English law does not
generally require a written instrument in order to endow an ex-
1
(1888)
20
Q.B.D.
475.
2
(1884)
10
App.Cas.
74, 105.
3
See
also
Crooks
v.
Allan
(1879)
5
Q.B.D.
38,40,
per
Lush
J.
4
Fraser
V.
Telegraph Consfrrtcfion Company
(1872)
L.R.
7
Q.B.
566
and
Chartered
Mercantile Bank
of
India
v.
Neiherlands India Steam Navigation
Co.
(1883)
10
Q.B.D.
521.
5
See,
e.g.
The
Ardennes
C19511
1
K.B. 55.
652

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT