The phantom of the Bills of Lading Act, 1855, lives on: enforcing ownership and contractual rights under Bills of Lading in Nigeria

Abstract

Given the importance of international trade in the development of any polity, the enforcement of ownership and contractual rights under bills of lading is of critical moment in the overall scheme of things. Title to sue, as a threshold question, has the potential of impacting on cargo owners' access to justice if the applicable regime or rules are complicated. For a cargo-owning nation, such as Nigeria, a liberal and coherent regime is desideratum. This article primarily reviews the position in Nigeria with regard to title to sue under bills of lading against the backdrop of the erstwhile position in England under the now-repealed Bills of Lading Act, 1855, on the one hand and the Constitution of the Federal Republic of Nigeria 1999, on the other. It is shown that the extent of the application of section 375 of the revised Merchant Shipping Act, 1990 (section 1 of the Bills of Lading Act, 1855) by the courts in Nigeria does not adequately accentuate the inherent anomalies in the regime as was evident in England. Similarly, the conceptual incongruity of introducing section 6(6)(b) of the Constitution, which deals with the exercise of judicial powers, is also addressed. It is argued that the solution to the locus standi problem cannot be found in the Constitution. In the final analysis, an argument is made for the adoption of a regime along the lines of the Carriage of Goods by Sea Act, 1992, in England.