MSC v Glencore International AG is a timely reminder of the fundamental obligation of the sea carrier to deliver only against production of an original bill of lading. Two out of a consignment of three containers were misappropriated at the discharge port, Antwerp. operated an electronic release system (“ERS”). Under this system carriers provided, against bills of lading, computer generated electronic numbers (“import pin codes”) which were given to the relevant receivers or their agents and the port terminal. This was instead of delivery orders or release notes which would be presented to the terminal to take possession of the goods. The holders of bills of lading had to present the pin codes to the terminal in order to take delivery of the goods. In practice the collecting driver would enter the pin codes manually in order to gain access to the terminal and enable him to collect the containers. The system was not mandatory and not all carriers using Antwerp adopted it. Glencore’s agents, Steinweg, had used the system without incident 69 times. However, on the 70th occasion, when Steinweg’s haulier went to collect the container, it found that two had already been collected. It was likely that someone had learnt of the codes and had used them to steal the containers.
The bill of lading provided “one original Bill of Lading, duly endorsed must be surrendered by the Merchant to the Carrier (together with outstanding freight) in exchange for the Goods or a Delivery Order”. Andrew Smith J found the sea carrier liable in bailment and breach of contract in respect of the misdelivery of the two containers, rejecting the argument that the bill of lading had been exchanged for a delivery order constituted by the electronic pin codes;  EWHC 1989 (Comm). The bill of lading’s reference to a ‘Delivery Order’ must have been taken to refer to a ship’s delivery order, and here there was no document containing the necessary undertaking by the carrier to a person identified in it to deliver the goods to which it related to that person
The Court of Appeal has now upheld the decision at first instance,  EWCA Civ 365. The sea carrier raised a new argument that delivery of the pin code amounted in law to delivery of the goods, with the carrier being obliged to deliver to the first person to enter the pin code into the machine. This was rejected as delivery meant actual delivery, not delivery as a means of access, and there was nothing to the contrary in the bill of lading. At best the code was some form of delivery order. The alternative delivery obligation in the bill of lading required a ship’s delivery order which would require an undertaking by MSC to deliver to Glencore or their agent. The Release Note contained no such undertaking and was simply an instruction to the terminal to deliver against the entry of pin codes which it provide to Steinweg. Glencore was not estopped from contending that delivery of the cargo upon presentation of a pin code was a breach of contract and/or duty on the part of MSC, on the basis of having given the appearance that it was content for the ERS to be used for the 69 previous shipments.
Sea Carriers using the ‘ers’ system should take note. You bear the risk of misdelivery due to hacking of pin codes.