Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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DOCUMENTS OF TITLE TO GOODS, IMPLIED CONTRACT AND ATTORNMENT

Michael Bridge*

This article is concerned with the absence of harmony between long-established law on documents of title and developing contract law. The on-board bill of lading is the only document that at common law is recognised as a document of title to goods, a custom to that effect having been proved in Lickbarrow v Mason. Warehouse receipts, for example, even if expressed in transferable form, have not been recognised as documents of title whose transfer effects a transfer of the delivery obligation itself to the new holder of the receipt. In the absence of such recognition as a document of title, the transfer of the bailee’s delivery obligation requires an attornment, or acknowledgment, by the bailee to the new bailor. The law on attornment is surprisingly unclear: it might be expressed as a unilateral acknowledgment to the new bailor, or as a consensual agreement with that new bailor, or as a trilateral arrangement, akin to novation, that also brings in the original bailor. The article considers also whether attornment is present in the transfer of on-board bills of lading, alongside the status of the document as one of title to goods. The article then goes on to make the case that the bailee’s delivery obligation can pass to the new bailor without any need to bring into play the clumsy machinery associated with documents of title to goods. This can be done by virtue of attornment understood in a unilateral sense, or by implied contract, or sometimes by the application of the Contracts (Rights of Third Parties) Act 1999. The conversion of documents to electronic form provides an opportunity for a fresh look at this neglected area of law.

Introduction

The process of rendering documents into an electronic format has been slow to gain momentum in the shipping world but there are increasing signs that electronic documents will replace bills of lading and similar marine documents, as well as a host of other documents used in trade to further the delivery of goods to a buyer, such as metal warrants and warehouse receipts. This article will not track the progress towards the adoption of dematerialised delivery documents developments but instead will build on

* QC (Hon), FBA, Geoffrey Bartholomew Professor of Law, National University of Singapore; Emeritus Professor of Law, London School of Economics; Senior Research Fellow, Harris Manchester College, University of Oxford. I have benefited from the comments of my colleagues James Penner, Stephen Girvin, Paul Myburgh, Sandra Booysen, Rachel Leow, Tim Liau, Wayne Courtney and Ben Geva, but remaining shortcomings are entirely my own.

DOCUMENTS OF TITLE, CONTRACT AND ATTORNMENT

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