ABSTRACT
Other torts Apart from negligence, the shipowner may be held liable in conversion for misdelivery of the cargo if he delivers the cargo to a party who is not entitled to possession of the goods. He will, however, be protected if he delivers against an original bill of lading, provided he has no notice of any defect in the title of the party presenting the bill.174 If the shipowner delivers against what appears to be an original bill of lading, but which is in fact a forgery, he will not be able to rely on this defence, notwithstanding that he had no reasonable means of finding out that the bill against which delivery was made was not genuine. 175
Misdelivery and conversion claims will generally exist in parallel with a contractual claim for misdelivery under the bill of lading and, as such, will be subject to any exceptions and limitations that could have raised against a contractual action. It used to be the case that misdelivery was classified as a fundamental breach176 so as to debar the shipowner from relying on such provisions, but after Photo-Production Ltd v Securicor Transport Ltd177 this is no longer the law. Exceptions and limitations clauses are now capable of being applied to misdelivery claims, but the courts have adopted a very restrictive approach to interpretation. The clause needs to identify clearly that it covers such claims. Thus in The Sormovskiy 3068178 a clause protecting the shipowner in the event of ‘loss or damage’ to the goods occurring after discharge was held not to cover a misdelivery claim. Nor was the shipowner protected by the fact that the bill of lading incorporated the terms of the charterparty, one of which entitled the charterers to require the shipowner to deliver the cargo without production of a bill of lading on production of an indemnity. Although the shipowner is entitled to enforce the indemnity against the party who gave it, the existence of the indemnity will have no effect on the right of the holder of the bill of lading to claim for misdelivery.
