Abstract
LL.D.
The bill of lading in South African law is the theme of this study. In the first part of the thesis, the bill of lading in its traditional paper form is examined. The aim of the first part of the study is to reconcile the bill of lading that is based on English law with the principles of South African law, especially regarding concepts such as possession and ownership. A plea is made for the application of South African law to bills of lading rather than English law exclusively. Even though English law undoubtedly forms the basis of the law governing bills of lading, such law should be applied in a way that is consistent with the general principles of South African law. The functions of the bill of lading are considered in detail, particularly the bill of lading as a document of title. A submission is made of five characteristics of a document of title. The conclusion is that the bill of lading, though based on English law concepts, can be integrated into South African law without difficulty. The subsequent examination of the transfer of contractual rights and the imposition of liabilities will show that there is a dire need for new legislation in South Africa to replace an English Act of 1855. The current proposals for such legislation are, however, in need of extensive revision. The fact that the traditional bill of lading only arrives at the port of destination after the goods, leads to a multitude of problems. The carrier may only deliver the goods in exchange for a bill of lading. Letters of indemnity are therefore used to protect the carrier that delivers the goods without receiving a bill of lading. Such indemnities will be enforceable in South African law if the carrier has no reason to suspect
that the receiver of the goods is not entitled to delivery. The consideration of the nature and functions of the traditional bill of lading, enables the study to progress to an examination of an electronic bill of lading. The use of an electronic bill of lading means that many problems facing the traditional bill of lading can be avoided. The continuing evolution of the bill of lading will be examined against the background of electronic
commerce. Writing and signature requirements should not inhibit the development of an
electronic bill of lading. The difficulty facing the dematerialisation of the bill of lading is
providing for negotiability in an electronic environment, and ensuring that an electronic bill of lading is the equivalent of an original and unique paper bill of lading. It is possible to create an electronic bill of lading that performs all the functions of a traditional bill of lading, and there are examples of the use of such electronic bills of lading in practice. Delivery of the goods can take place by way of attomment rather than the usual symbolical delivery following the transfer of a paper bill of lading. It is submitted that there is currently no need for legislative intervention to provide for electronic bills of lading in South Africa.