Lloyd's Maritime and Commercial Law Quarterly

Edited by Professor Francis D Rose

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BILLS OF LADING AND THE LOGIC OF POSSESSION

Jonas Atmaz Al-Sibaie *

The holder of a bill of lading is, according to orthodoxy, protected from third-party interference with the goods because he is in possession or in constructive possession of the goods. This article challenges that view. It argues that the bill holder is not in possession of the goods, such possession being inconsistent with the carrier’s. It also argues that the bill holder is not in constructive possession of the goods. The custom of merchants, the carrier’s holding the goods to the bill-holder’s order and any personal right of the bill holder do not justify protecting the bill holder against third parties.

I. INTRODUCTION

Suppose A enters into a contract to sell B 100 tonnes of grain, CIF Felixstowe. The contract includes a term that the general property interest in the goods will not pass until payment. A gives the bill of lading to B before B pays for the goods and, before B pays, the goods are wrongfully destroyed by C. In those circumstances, it is ordinarily said that B can

* Shaw Foundation Junior Research Fellow in Law, Jesus College, Oxford. Many thanks to Jordan English, Matthew Frey, Luke Rostill, Viktoria Winzer, Qiucheng Ye and the organisers and participants of a meeting of the University of Oxford’s Property Law Discussion Group for comments on previous drafts. The following abbreviations are used: Baker: J Baker, “Custom and Usage”, in Halsbury, vol.32; Bell: A Bell, Modern Law of Personal Property in England and Ireland (London and Edinburgh, 1989); Benjamin: MG Bridge (gen ed.), Benjamin’s Sale of Goods, 12th edn (London, 2024); Bools: M Bools, The Bill of Lading: A Document of Title to Goods: An Anglo-American Comparison (London, 1997); Bridge, “Documentary Intangibles”: MG Bridge, “Documentary Intangibles”, in Bridge, Law of Personal Property; Bridge, Law of Personal Property: M Bridge et al, The Law of Personal Property, 3rd edn (London, 2021); Carver on Bills of Lading: FD Rose and FMB Reynolds (eds), Carver on Bills of Lading, 5th edn (London, 2022); Goode & McKendrick: E McKendrick, Goode and McKendrick on Commercial Law, 6th edn (London, 2020); Goode on Proprietary Rights: S Mills (ed), Goode on Proprietary Rights and Insolvency in Sales Transactions, 3rd edn (London, 2010); Halsbury: Lord Mackay of Clashfern (ed), Halsbury’s Laws of England, 5th edn (London, 2023); McFarlane: B McFarlane, The Structure of Property Law (Oxford, 2008); McMeel, “Possessory Interests”: GP McMeel, “Possessory Interests”, in Bridge, Law of Personal Property; McMeel, “Storage and Carriage”: GP McMeel, “Storage and Carriage”, in Bridge, Law of Personal Property; Palmer: NE Palmer (ed), Palmer on Bailment, 3rd edn (London, 2009); Rostill: L Rostill, Possession, Relative Title, and Ownership in English Law (Oxford, 2021); Tettenborn: AM Tettenborn, “Wrongful Interference with Goods”, in AM Tettenborn (gen ed), Clerk & Lindsell on Torts, 24th edn (London, 2023).

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