Note: This judgment has now been upheld by the Court of Appeal in Singapore, in a judgment delivered on 3 October 2002. For a note of the Appeal decision, click here 

Facts 
Mr Voss arranged for the shipment of a Mercedes Benz car from Germany to Seohwan Trading Co Limited of Korea at a c & f price of DM108,600. The carriers, APL Co, issued a bill of lading showing the shipper as Mr Voss. In the box entitled "Consignee", the printed words stated: "(Name and Full Address/Non-Negotiable unless Consigned to Order) (Unless provided otherwise a consignment "To Order" means to Order of Shipper"). Typed in to this box was Seohwan's name and address, nothing else.

On arrival at port, APL handed the car over to a man claiming to be from Seohwan who produced copies of an invoice and a cable from a bank purportedly showing payment of the balance of the price. That money was never received by Mr. Voss.

Mr Voss sued APL for breach of contract, breach of its duty as bailee and/or for failing to exercise due care with the cargo because they delivered the car without requiring presentation of the original bill of lading.

APL, however, argued that, in the case of straight bills, the carrier is entitled to deliver even if no original bill of lading is produced by the consignee. They drew an analogy between a straight bill of lading and a sea waybill (the maritime equivalent of a document usually used in the context of land and air carriage). A sea waybill operates as a receipt for goods received and evidences a contract of carriage, but is never a negotiable instrument. Consequently, it is usually used on short sea routes where neither the shipper nor the cargo receiver needs to pledge shipping documents in order to raise finance. The receiver can take delivery merely by establishing his identity and does not have to produce the original sea waybill, and, since a sea waybill is not a bill of lading, it is not subject to the Hague Rules or the Hague-Visby Rules.

Judgment
The judge found in favour of Mr Voss. She found it to be a firmly established principle of law that, in a contract for the carriage of goods by sea, delivery of the cargo is to be made at the discharge port by the carrier to the consignee only upon the production by the consignee of the original bill of lading. This principle is implied into all contracts for the carriage of goods by sea. Numerous authorities can be cited in support of this, none of which made any distinction between bills "to order" and straight bills (see, for instance, Sze Hai Tong Bank v Rambler Cycle Co [1959] MJL 200, Barclays Bank v Customs & Excise Comrs [1963] 1 Lloyd's Rep 81, and The Houda [1994] 2 Lloyd's Rep 541).

As for APL's analogy with sea waybills, the judge was not satisfied that there was any real or convincing authority for the proposition that straight bills and sea waybills are the same. Whilst it is true that Carver on Bills of Lading proposes that, since neither can be documents of title, the carrier in either case is entitled to deliver to the named consignee without production of the original bill, the judge in the case cited in support (The Brij [2001] 1 Lloyd's Rep 431) relied solely on a passage in the fifth edition of Benjamin on Sale of Goods and appeared to have treated the matter as uncontentious.

In this judge's view, this was not enough to dispel authorities that made no distinction between bills to order and straight bills in respect of the need for production of the original bill on delivery. The judge held that the shipper who asks for issue of a straight bill of lading rather than a sea waybill does so because he wants to keep some degree of control over delivery of the goods. Once the owner issues a bill of lading, whether it is an order bill or a straight bill, he must not deliver the cargo except against the production of the original.