[1921] 3 K.B. 443
McCardie J
A received for shipment bill of lading is not good tender under a c.i.f. contract because:
1. The tender of documents is the method by which the goods are delivered (at p. 448, McCardie J. cited Ireland v. Livingston (1872) L.R. 5 H.L. 395, 406, and the judgments of Hamilton J. and Kennedy L.J. (dissenting) in Biddell Bros. v. E. Clemens Horst Co. [1911] 1 K.B. 214, 221 and [1911] 1 K.B. 934, 956, later upheld in the House of Lords [1912] A.C. 18.
2. The received for shipment bill is not a document of title at common law (see p. 450) - Lickbarrow v. Mason (1794) T.R. 685 and the Preamble and s. 3 of the Bills of Lading Act 1855 were relied on in support of this view).
3. The received for shipment bill is not a bill of lading within the 1855 Act - at pp. 452-453, The Marlborough Hill [1921] 1 A.C. 444 (PC) was criticised and not followed.
McCardie J reached his decision in spite of strong evidence of a trade custom, "inasmuch as the form of the document before me is of frequent use at American ports" (p. 447), but it does not necessarily follow that a term expressly providing for tender of a received for shipment bill would be repugnant to a c.i.f. contract.
Note also that this bill of lading did not even unequivocally identify the ship upon which the goods were to be shipped. At 451 (bottom): "The document seems to me to be (in substance) a mere receipt for goods which at some future time and by some uncertain vessel are to be shipped."
The buyers were also entitled to reject because a certificate of insurance was tendered, not an assignable policy.
Compare Yelo v. S.M. Machado (f.o.b. contract), where similar views are expressed on the bill of lading issue by Sellers J., but where the requirement for a shipped bill could probably have been negated by very strong evidence of a trade custom.
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