Mercantile Law Act 1908

Reprint as at 17 June 2014

Coat of Arms of New Zealand

Mercantile Law Act 1908

Public Act
1908 No 117
Date of assent
4 August 1908
Commencement
4 August 1908
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.

Contents

Title
1Short Title
2Interpretation
3Powers of mercantile agent with respect to disposition of goods
4Effect of pledges of documents of title
5Pledge for antecedent debt
6Rights acquired by exchange of goods or documents
7Agreements through clerks, etc
8Provisions as to consignors and consignees
9Effect of transfer of document of title to goods on vendor’s lien, and right of stoppage in transitu
10Mode of transferring documents
11Saving of rights of true owner
12Saving for common-law powers of mercantile agent
13Interpretation
13AApplication of this Part
13BRights under shipping documents
13CLiabilities under shipping documents
14Right of stoppage in transitu, or claims for freight, not affected
15Bill of lading in hands of consignee, etc, conclusive evidence as against master, etc
16When master may be exonerated from liability
[Repealed]
17Carriers liable for neglect or default in carriage of goods, notwithstanding notice to contrary [Repealed]
18Exception of conditions for carrying adjudged by a court or Judge to be reasonable [Repealed]
19Special contracts not binding unless signed [Repealed]
20Carriers not liable in certain cases beyond limited amount unless value declared and extra payment made [Repealed]
21Interpretation
22Power to shipowner to enter and land goods in default of entry and landing by owner of goods
23If when goods are landed the shipowner gives notice for that purpose the lien for freight is to continue
24Lien to be discharged on deposit with warehouse owner
25Warehouse owner may at the end of 15 days, if no notice is given, pay deposit to shipowner
26Course to be taken if notice to retain is given
27After 90 days warehouse owner may sell goods by public auction
28Notices of sale to be given
29Money arising from sale, how to be applied
30Warehouse owner’s rent and expenses
31Warehouse owner’s protection
32Interpretation
33Unpaid vendor’s lien determined on delivery of bond warrants to bona fide holder for value
34Possession of warrants prima facie evidence of ownership
35Holder of warrant entitled to delivery
36Registered holder of warrant deemed to be owner
37The registered transferee of warrant to lose his or her right of lien if warrant afterwards delivered over bona fide and for value
38Warrants of free goods put on the same footing as bond warrants
39Provisions same in respect of bonded and free warehouses
40Vendor’s lien not prejudiced save as against bona fide subpurchaser or pledgee for value
41Goods not to be transferred in books of warehouseman except on production of warrant
42Special contracts restraining negotiability of warrants permitted
43Warehouseman’s lien not prejudiced by sale or transfer of goods
[Repealed]
44When agreement for purchase of books to be void [Repealed]
Reprint notes

An Act to consolidate certain enactments of the Parliament of New Zealand relating to trade and commerce

Title: amended, on 1 January 1987, pursuant to section 29(2) of the Constitution Act 1986 (1986 No 114).

 
1 Short Title

(1)

The Short Title of this Act is the Mercantile Law Act 1908.

Enactments consolidated

(2)

This Act is a consolidation of the enactments mentioned in the Schedule.

(3)

All matters and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.

Application of Parts 2, 3, and 4

(4)

In order to remove any doubt as to the applicability of the provisions of Parts 2, 3, and 4 to and in respect of navigable lakes and inland navigable waters of New Zealand, it is hereby declared that those provisions extend and apply to all parts of New Zealand so far as the same are applicable.

(5)

This Act is divided into Parts, as follows:

Part 1—Mercantile agents (sections 2 to 12)

Part 2—Bills of lading (sections 13 to 16)

Part 4—Delivery of goods, and lien for freight (sections 21 to 31)

Part 5—Unpaid vendors of warehoused goods (sections 32 to 43)

Part 6—Book purchasers protection (section 44).

Compare: 1889 No 11 s 2

Part 1 Mercantile agents

2 Interpretation

(1)

In this Part, if not inconsistent with the context,—

document of title includes any bill of lading, dock warrant, warehouse keeper’s certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented

goods includes wares and merchandise

mercantile agent means an agent having in the customary course of his or her business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods

pledge includes any contract pledging or giving a lien or security on goods, whether in consideration of an original advance, or of any further or continuing advance, or of any pecuniary liability.

(2)

A person shall be deemed to be in possession of goods, or of the documents of title to goods, where the goods or documents are in his or her actual custody, or are held by any other person subject to his or her control or for him or her or on his or her behalf.

Compare: 1890 No 11 s 3

Dispositions by mercantile agents

3 Powers of mercantile agent with respect to disposition of goods

(1)

Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition of the goods made by him or her when acting in the ordinary course of business of a mercantile agent shall, subject to the provisions of this Part, be as valid as if he or she were expressly authorised by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.

(1A)

Where a mercantile agent is, with the consent of the owner, in possession of goods, or documents of title to the goods, that are subject to a perfected security interest under the Personal Property Securities Act 1999, the person taking under any disposition of the goods is deemed to have notice that the person making the disposition has no authority to make it, unless it is proved that the authority did exist.

(2)

Where a mercantile agent has, with the consent of the owner, been in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition which would have been valid if the consent had continued shall be valid notwithstanding the determination of the consent, provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined.

(3)

Where a mercantile agent has obtained possession of any documents of title to goods by reason of his or her being or having been, with the consent of the owner, in possession of the goods represented thereby, or of any other documents of title to the goods, his or her possession of the first-mentioned documents shall, for the purposes of this Part, be deemed to be with the consent of the owner.

(4)

For the purposes of this Part the consent of the owner shall be presumed in the absence of evidence to the contrary.

Compare: 1890 No 11 s 4

Section 3(1A): replaced, on 1 May 2002, by section 191(1) of the Personal Property Securities Act 1999 (1999 No 126).

4 Effect of pledges of documents of title

A pledge of the documents of title to goods shall be deemed to be a pledge of the goods.

Compare: 1890 No 11 s 5

5 Pledge for antecedent debt

Where a mercantile agent pledges goods as security for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee shall acquire no further right to the goods than could have been enforced by the pledgor at the time of the pledge.

Compare: 1890 No 11 s 6

6 Rights acquired by exchange of goods or documents

The consideration necessary for the validity of a sale, pledge, or other disposition of goods in pursuance of this Part may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable consideration; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange.

Compare: 1890 No 11 s 7

7 Agreements through clerks, etc

For the purposes of this Part an agreement made with a mercantile agent through a clerk or other person authorised in the ordinary course of business to make contracts of sale or pledge on his or her behalf shall be deemed to be an agreement with the agent.

Compare: 1890 No 11 s 8

8 Provisions as to consignors and consignees

(1)

Where the owner of goods has given possession of the goods to another person for the purpose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person.

(2)

Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition by a mercantile agent.

Compare: 1890 No 11 s 9

9 Effect of transfer of document of title to goods on vendor’s lien, and right of stoppage in transitu

Where a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor’s lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu:

provided that this section shall be construed subject to section 48 of the Sale of Goods Act 1908.

Compare: 1890 No 11 s 12

Miscellaneous

10 Mode of transferring documents

For the purposes of this Part the transfer of a document may be by endorsement, or where the document is by custom or by its express terms transferable by delivery, or makes the goods deliverable to the bearer, then by delivery.

Compare: 1890 No 11 s 13

11 Saving of rights of true owner

Nothing in this Part shall—

(a)

authorise a mercantile agent to exceed or depart from his or her authority as between himself or herself and his or her principal, or exempt him or her from any liability, civil or criminal, for so doing; or

(b)

prevent the owner of goods from recovering the goods from a mercantile agent or his or her trustee in bankruptcy at any time before the sale or pledge thereof; or

(c)

prevent the owner of goods pledged by a mercantile agent from having the right to redeem the goods at any time before the sale thereof, on satisfying the claim for which the goods were pledged and paying to the mercantile agent, if by him or her required, any money in respect of which such agent would by law be entitled to retain the goods or the documents of title thereto, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods have been pledged any balance of money remaining in his or her hands as the produce of the sale of the goods after deducting the amount of his or her lien; or

(d)

prevent the owner of goods sold by a mercantile agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of set-off on the part of the buyer against such agent.

Compare: 1890 No 11 s 14

12 Saving for common-law powers of mercantile agent

The provisions of this Part shall be construed in amplification and not in derogation of the powers exercisable by a mercantile agent independently of this Part.

Compare: 1890 No 11 s 15

Part 2 Bills of lading

13 Interpretation

(1)

In this Part, unless the context otherwise requires,—

bill of lading, sea waybill, and ship’s delivery order shall be construed in accordance with section 13A

the contract of carriage means,—

(a)

in relation to a bill of lading or sea waybill, the contract contained in or evidenced by that bill or waybill; and

(b)

in relation to a ship’s delivery order, the contract under or for the purposes of which the undertaking contained in the order is given

holder, in relation to a bill of lading, shall be construed in accordance with subsection (2)

information technology includes any computer or other technology by means of which information or other matter may be recorded or communicated without being reduced to documentary form

network has the same meaning as in section 5 of the Telecommunications Act 2001.

(2)

References in this Part to the holder of a bill of lading are references to any of the following persons:

(a)

a person with possession of the bill who, by virtue of being the person identified in the bill, is the consignee of the goods to which the bill relates:

(b)

a person with possession of the bill as a result of the completion (by delivery of the bill) of any endorsement of the bill or, in the case of a bearer bill, as a result of any other transfer of the bill:

(c)

a person with possession of the bill as a result of any transaction by virtue of which that person would have become a holder under paragraph (a) or paragraph (b) had not the transaction been effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods to which the bill relates;—

and a person shall be regarded for the purposes of this Act as having become the lawful holder of the bill of lading whenever that person has become the holder of the bill in good faith.

(3)

References in this Part to a person’s being identified in a document include references to that person being identified by a description which allows for the identity of that person to be varied, in accordance with the terms of the document, after its issue; and the reference in section 13A(3)⁠(b) to a document identifying a person shall be construed accordingly.

(4)

Without prejudice to section 13B(2), nothing in this Part shall preclude its operation in relation to a case where the goods to which a document relates—

(a)

cease to exist after the issue of the document; or

(b)

cannot be identified (whether because they are mixed with other goods or for any other reason);—

and references in this Part to the goods to which a document relates shall be construed accordingly.

(5)

The Governor-General may, by Order in Council, make regulations for the application of this Part to cases where a network or other information technology is used for effecting transactions corresponding to—

(a)

the issue, endorsement, delivery or other transfer of a document to which this Part applies; or

(b)

the doing of anything else in relation to such a document.

(6)

Regulations made under subsection (5) may—

(a)

make such modifications of the provisions of this Part as are appropriate in connection with the application of this Part to any case mentioned in that subsection; and

(b)

contain supplemental, incidental, consequential, and transitional provisions.

(7)

The provisions of this Part shall have effect without prejudice to the application, in relation to any case, of section 209 of the Maritime Transport Act 1994.

Section 13: replaced, on 1 February 1995, by section 2 of the Mercantile Law Amendment Act 1994 (1994 No 106).

Section 13(1) network: replaced, on 20 December 2001, by section 158 of the Telecommunications Act 2001 (2001 No 103).

13A Application of this Part

(1)

This Part applies to the following documents:

(a)

any bill of lading:

(b)

any sea waybill:

(c)

any ship’s delivery order.

(2)

References in this Act to a bill of lading—

(a)

do not include references to a document which is incapable of transfer either by endorsement or, as a bearer bill, by delivery without endorsement; but

(b)

subject to paragraph (a), include references to a received for shipment bill of lading.

(3)

References in this Act to a sea waybill are references to any document that is not a bill of lading but—

(a)

is such a receipt for goods as contains or evidences a contract for the carriage of goods by sea; and

(b)

identifies the person to whom delivery of the goods is to be made by the carrier in accordance with that contract.

(4)

References in this Part to a ship’s delivery order are references to any document that is neither a bill of lading nor a sea waybill, but contains an undertaking that—

(a)

is given under or for the purposes of a contract for the carriage by sea of the goods to which the document relates, or of goods which include those goods; and

(b)

is an undertaking by the carrier to a person identified in the document to deliver the goods to which the document relates to that person.

Section 13A: inserted, on 1 February 1995, by section 2 of the Mercantile Law Amendment Act 1994 (1994 No 106).

13B Rights under shipping documents

(1)

Subject to this section, a person who becomes—

(a)

the lawful holder of a bill of lading; or

(b)

the person who (without being an original party to the contract of carriage) is the person to whom delivery of the goods to which a sea waybill relates is to be made by the carrier in accordance with that contract; or

(c)

the person to whom delivery of the goods to which a ship’s delivery order relates is to be made in accordance with the undertaking contained in the order,—

shall (by virtue of becoming the holder of the bill or, as the case may be, the person to whom delivery is to be made) have transferred to and vested in him or her all rights of suit under the contract of carriage as if that person had been a party to that contract.

(2)

Where a person becomes the lawful holder of a bill of lading when possession of the bill no longer gives a right (as against the carrier) to possession of the goods to which the bill relates, that person shall not have any rights transferred to him or her by virtue of subsection (1) unless that person becomes the holder of the bill—

(a)

by virtue of a transaction effected in pursuance of any contractual or other arrangements made before the time when such a right to possession ceased to attach to possession of the bill; or

(b)

as a result of the rejection to that person by another person of goods or documents delivered to the other person in pursuance of any such arrangements.

(3)

The rights vested in any person by virtue of the operation of subsection (1) in relation to a ship’s delivery order—

(a)

shall be so vested subject to the terms of the order; and

(b)

where the goods to which the order relates form a part only of the goods to which the contract of carriage relates, shall be confined to rights in respect of the goods to which the order relates.

(4)

Where, in the case of any document to which this Part applies,—

(a)

a person with any interest or right in or in relation to goods to which the document relates sustains loss or damage in consequence of a breach of the contract of carriage; but

(b)

subsection (1) operates in relation to that document so that rights of suit in respect of that breach are vested in another person,—

the other person shall be entitled to exercise those rights for the benefit of the person who sustained the loss or damage to the same extent as they could have been exercised if they had been vested in the person for whose benefit they are exercised.

(5)

Where rights are transferred by virtue of the operation of subsection (1) in relation to any document, the transfer for which that subsection provides shall extinguish any entitlement to those rights that derives,—

(a)

where that document is a bill of lading, from a person’s having been an original party to the contract of carriage; or

(b)

in the case of any document to which this Act applies, from the previous operation of that subsection in relation to that document;—

but the operation of that subsection shall be without prejudice to any rights which derive from a person’s having been an original party to the contract contained in, or evidenced by, a sea waybill and, in relation to a ship’s delivery order, shall be without prejudice to any rights deriving otherwise than from the previous operation of that subsection in relation to that order.

Section 13B: inserted, on 1 February 1995, by section 2 of the Mercantile Law Amendment Act 1994 (1994 No 106).

13C Liabilities under shipping documents

(1)

Where section 13B(1) operates in relation to any document to which this Part applies and the person in whom rights are vested by virtue of that subsection—

(a)

takes or demands delivery from the carrier of any of the goods to which the document relates; or

(b)

makes a claim under the contract of carriage against the carrier in respect of any of those goods; or

(c)

is a person who, at a time before those rights were vested in him or her, took or demanded delivery from the carrier of any of those goods,—

that person shall (by virtue of taking or demanding delivery or making the claim or, in a case to which paragraph (c) applies, of having the rights vested in him or her) become subject to the same liabilities under that contract as if that person had been a party to that contract.

(2)

Where the goods to which a ship’s delivery order relates form a part only of the goods to which the contract of carriage relates, the liabilities to which any person is subject by virtue of the operation of this subsection in relation to that order shall exclude liabilities in respect of any goods to which the order does not relate.

(3)

This section, so far as it imposes liabilities under any contract on any person, shall be without prejudice to the liabilities under the contract of any person as an original party to the contract.

Compare: 1908 No 117 s 13

Section 13C: inserted, on 1 February 1995, by section 2 of the Mercantile Law Amendment Act 1994 (1994 No 106).

14 Right of stoppage in transitu, or claims for freight, not affected

Nothing herein shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or endorsee by reason or in consequence of his or her being such consignee or endorsee, or of his or her receipt of the goods by reason or in consequence of such consignment or endorsement.

Compare: 1880 No 12 s 22

15 Bill of lading in hands of consignee, etc, conclusive evidence as against master, etc

Every bill of lading in the hands of the shipper or of a consignee or endorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading has had actual notice at the time of receiving the same that the goods were not in fact laden on board.

Compare: 1880 No 12 s 23

Section 15: amended, on 16 October 1922, by section 2 of the Mercantile Law Amendment Act 1922 (1922 No 25).

16 When master may be exonerated from liability

The master or other person so signing any bill of lading may exonerate himself or herself in respect of such misrepresentation by showing that it was caused without any default on his or her part, and wholly by the fraud of the shipper or of the holder, or some person under whom the holder claims.

Compare: 1880 No 12 s 24

Part 3 Carriers

[Repealed]

Part 3: repealed, on 2 December 1948, by section 11 of the Carriers Act 1948 (1948 No 66).

17 Carriers liable for neglect or default in carriage of goods, notwithstanding notice to contrary
[Repealed]

Section 17: repealed, on 2 December 1948, by section 11 of the Carriers Act 1948 (1948 No 66).

18 Exception of conditions for carrying adjudged by a court or Judge to be reasonable
[Repealed]

Section 18: repealed, on 2 December 1948, by section 11 of the Carriers Act 1948 (1948 No 66).

19 Special contracts not binding unless signed
[Repealed]

Section 19: repealed, on 2 December 1948, by section 11 of the Carriers Act 1948 (1948 No 66).

20 Carriers not liable in certain cases beyond limited amount unless value declared and extra payment made
[Repealed]

Section 20: repealed, on 2 December 1948, by section 11 of the Carriers Act 1948 (1948 No 66).

Part 4 Delivery of goods, and lien for freight

21 Interpretation

In this Part, if not inconsistent with the context,—

entry means the entry required by the Customs laws to be made for the landing or discharge of goods from an importing ship

goods includes every description of wares and merchandise

owner of goods includes every person who is for the time being entitled, either as owner or agent for the owner, to the possession of the goods, subject in the case of a lien to such lien

report means the report required by the Customs laws to be made by the master of any importing ship

shipowner includes the master of the ship and every other person authorised to act as agent for the owner or entitled to receive the freight, demurrage, or other charges payable in respect of such ship

warehouse includes all warehouses, buildings, and premises in which goods when landed from ships may be lawfully placed

warehouse owner means the occupier of any warehouse as hereinbefore defined

wharf includes all wharves, quays, docks, and premises in or upon which any goods when landed from ships may be lawfully placed

wharf owner means the occupier of any wharf as hereinbefore defined.

Compare: 1880 No 12 s 29

22 Power to shipowner to enter and land goods in default of entry and landing by owner of goods

Where the owner of goods imported from foreign parts into New Zealand fails to make entry thereof, or, having made entry thereof, to land the same or take delivery thereof, and to proceed therewith with all convenient speed by the times severally hereinafter mentioned, the shipowner may make entry of and land or unship the said goods at the times, in the manner, and subject to the conditions following, that is to say:

(a)

if a time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the time so expressed:

(b)

if no time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the expiration of 72 hours, exclusive of a Sunday or holiday, after the report of the ship:

(c)

if any wharf or warehouse is named in the charter party, bill of lading, or agreement as the wharf or warehouse where the goods are to be placed, and if they can be conveniently there received, the shipowner in landing them by virtue of this enactment shall cause them to be placed on such wharf or in such warehouse:

(d)

in other cases the shipowner, in landing goods by virtue of this enactment, shall place them on or in some wharf or warehouse on or in which goods of a like nature are usually placed, such wharf or warehouse being, if the goods are dutiable, a wharf or warehouse duly approved by the Minister of Customs for the landing of dutiable goods:

(e)

if at any time before the goods are landed or unshipped the owner of the goods is ready and offers to land or take delivery of the same, he or she shall be allowed so to do, and his or her entry shall in such case be preferred to any entry made by the shipowner:

(f)

if any goods are for the purpose of convenience in assorting the same landed at the wharf where the ship is discharged, and the owner of the goods at the time of such landing has made entry and is ready and offers to take delivery thereof and to convey the same to some other wharf or warehouse, such goods shall be assorted at landing; and shall, if demanded, be delivered to the owner thereof within 24 hours after assortment, and the expense of and consequent on such landing and assortment shall be borne by the shipowner:

(g)

if at any time before the goods are landed or unshipped the owner thereof has made entry for the landing and warehousing thereof at any particular wharf or warehouse other than that at which the ship is discharging, and has offered and been ready to take delivery thereof, and the shipowner has failed to make such delivery, and has also failed at the time of such offer to give the owner of the goods correct information of the time at which such goods can be delivered, then the shipowner shall, before landing or unshipping such goods under the power hereby given to him or her, give to the owner of the goods or of such wharf or warehouse as last aforesaid 24 hours’ notice in writing of his or her readiness to deliver the goods, and shall, if he or she lands or unships the same without such notice, do so at his or her own risk and expense.

Compare: 1880 No 12 s 30

23 If when goods are landed the shipowner gives notice for that purpose the lien for freight is to continue

(1)

If at any time when any goods are landed from any ship and placed in the custody of any person as a wharf or warehouse owner the shipowner gives to the wharf or warehouse owner notice in writing that the goods are to remain subject to a lien for freight or other charges payable to the shipowner to an amount to be mentioned in such notice, the goods so landed shall in the hands of the wharf or warehouse owner continue liable to the same lien, if any, for such charges as they were subject to before the landing thereof.

(2)

The wharf or warehouse owner receiving such goods shall retain them until the lien is discharged as hereinafter mentioned, and if he or she fails so to do shall make good to the shipowner any loss thereby occasioned to him or her.

(3)

On production to the wharf or warehouse owner of a receipt for the amount claimed as due, and delivery to the wharf or warehouse owner of a copy thereof or of a release of freight from the shipowner, the said lien shall be discharged.

Compare: 1880 No 12 ss 31, 32

24 Lien to be discharged on deposit with warehouse owner

The owner of the goods may deposit with the wharf or warehouse owner a sum of money equal in amount to the sum so claimed as aforesaid by the shipowner, and thereupon the lien shall be discharged, but without prejudice to any other remedy which the shipowner may have for the recovery of the freight.

Compare: 1880 No 12 s 33

25 Warehouse owner may at the end of 15 days, if no notice is given, pay deposit to shipowner

If such deposit is made with the wharf or warehouse owner, and the person making the same does not within 15 days after making it give to the wharf or warehouse owner notice in writing to retain it, stating in such notice the sum, if any, which he or she admits to be payable to the shipowner, or that he or she does not admit any sum to be so payable, the wharf or warehouse owner may at the expiration of such 15 days pay the sum so deposited over to the shipowner, and shall by such payment be discharged from all liability in respect thereof.

Compare: 1880 No 12 s 34

26 Course to be taken if notice to retain is given

If such deposit is made with the wharf or warehouse owner, and the person making the same does within 15 days after making it give to the wharf or warehouse owner notice as aforesaid,—

(a)

the wharf or warehouse owner shall immediately apprise the shipowner of such notice, and shall pay or tender to him or her out of the sum deposited the sum admitted by such notice to be payable, and shall retain the balance or, if no sum is admitted to be payable, the whole of the sum deposited for 30 days from the date of the said notice:

(b)

at the expiration of such 30 days, unless legal or arbitral proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the said balance or sum, or otherwise for the settlement of any disputes between them concerning such freight or other charges as aforesaid, and notice in writing of such proceedings has been served on him or her, the wharf or warehouse owner shall pay the said balance or sum over to the owner of the goods, and shall by such payment be discharged from all liability in respect thereof.

Compare: 1880 No 12 s 35

Section 26(b): amended, on 1 July 1997, by section 17 of the Arbitration Act 1996 (1996 No 99).

27 After 90 days warehouse owner may sell goods by public auction

If the lien is not discharged and no deposit is made as hereinbefore mentioned, the wharf or warehouse owner may, and if required by the shipowner shall, at the expiry of 90 days from the time when the goods were placed in his or her custody, or, if the goods are of a perishable nature, at such earlier period as may be fixed by Lloyd’s agent or any surveyor to be appointed by such wharf or warehouse owner, sell by public auction either for home use or exportation the said goods, or so much thereof as may be necessary to satisfy the charges hereinafter mentioned.

Compare: 1880 No 12 s 36

28 Notices of sale to be given

(1)

Before making such sale the wharf or warehouse owner shall give notice thereof by advertisement in 1 newspaper circulating in the neighbourhood, a copy whereof shall be kept posted up in some conspicuous part of the said wharf or warehouse.

(2)

If the address of the owner of the goods has been stated on the manifest of the cargo, or on any of the documents in the possession of the wharf or warehouse owner, or is otherwise known to him or her, such wharf or warehouse owner shall give notice of the sale to the owner of the goods by letter sent by post.

(3)

But the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send notice as hereinbefore mentioned, nor shall any such purchaser be bound to inquire whether such notice has been sent.

Compare: 1880 No 12 s 37

29 Money arising from sale, how to be applied

In every case of any such sale as aforesaid the wharf or warehouse owner shall apply the money received from the sale in the following order:

(a)

if the goods are sold for home use, in payment of any Customs or excise duties owing in respect thereof;

(b)

in payment of the expenses of the sale;

(c)

in the absence of any agreement between the wharf or warehouse owner and the shipowner concerning the priority of their respective charges, in payment of the rent, rates, and other charges due to the wharf or warehouse owner in respect of the said goods;

(d)

in payment of the amount claimed by the shipowner as due for freight or other charges in respect of the said goods;

(e)

but in the case of any agreement between the wharf or warehouse owner and the shipowner concerning the priority of their respective charges, then such charges shall have priority according to the terms of such agreement; and

(f)

the surplus, if any, shall be paid to the owner of the goods.

Compare: 1880 No 12 s 38

30 Warehouse owner’s rent and expenses

Where goods are placed in the custody of a wharf or warehouse owner under the authority of this Part, the said owner shall be entitled to rent in respect of the same, and shall also have power from time to time at the expense of the owner of the goods to do all such reasonable acts as in the judgment of the said wharf or warehouse owner are necessary for the proper custody and preservation of such goods, and shall have a lien thereon for the said rent and expenses.

Compare: 1880 No 12 s 39

31 Warehouse owner’s protection

Nothing in this Part shall compel any wharf or warehouse owner to take charge of any goods which he or she would not be liable to take charge of if this Part had not passed, nor shall he or she be bound to see to the validity of any lien claimed by any shipowner under this Part.

Compare: 1880 No 12 s 40

Part 5 Unpaid vendors of warehoused goods

32 Interpretation

In this Part, if not inconsistent with the context,—

bonded warehouse means a building approved and appointed by the Minister of Customs for the warehousing of goods without payment of duty on the first entry thereof

free warehouse means a building licensed by the Minister of Customs to be used exclusively for the storage of any goods not liable to the payment of Customs duties, or whereon such duties have been paid previously to storage

goods includes wares and merchandise of every description

pledge means any deposit and delivery of warrants or certificates with intent that the holder thereof may dispose of the goods to which such warrants or certificates relate in the event of the terms of the deposit not being fulfilled by the persons making the same

pledgee means the person in whose favour the deposit of the warrants or certificates is made

sale means any absolute disposition of goods, whether for payment to be made in cash or upon credit

subpurchaser means any person purchasing from or under the person to whom the original bonder or storer of goods in a bonded or free warehouse sold the same and delivered the warrants or certificates relating thereto

warehouse keeper means the person having the management of any bonded or free warehouse, whether the warehouseman himself or a person employed by him

warehouse keeper’s book means the book wherein the warehouse keeper enters a list of all goods received in and delivered out of the warehouse managed by him or her

warehouseman means the person for whose immediate benefit and under whose control the storage of goods in a bonded or free warehouse is carried on

warrants or certificates means any receipt or undertaking issued by or on behalf of the warehouseman, and signed by him or on his behalf, acknowledging the receipt in a specified warehouse of goods to be held on behalf of a person named and described, giving the particulars of the goods stored, the marks or brands (if any) thereon, the terms upon which the goods are stored, and containing an undertaking on the part of the warehouseman to deliver the same to the endorsee, holder, or bearer of the warrant or certificate.

Compare: 1880 No 12 s 85

33 Unpaid vendor’s lien determined on delivery of bond warrants to bona fide holder for value

In all cases where warrants or certificates for goods liable to the payment of Customs duties are issued, importing a receipt of such goods by or on behalf of any bonded warehouseman and an undertaking to deliver the same to the holder of the warrants or certificates on presentation and demand, and on payment of the duties, rents, and charges lawfully demandable, and such warrants or certificates are delivered over on a sale of the goods by the person to whom the said warrants or certificates are issued by or on behalf of the warehouseman, the rights, legal and equitable, of such person, as an unpaid vendor, to stop the actual delivery of the goods comprised in and affected by such warrants or certificates shall be deemed at an end when such warrants or certificates are delivered over bona fide and for value, on either a sale or pledge of the said goods by any person purchasing from the original bonder thereof.

Compare: 1880 No 12 s 86

34 Possession of warrants prima facie evidence of ownership

On a sale or pledge of goods stored in any bonded warehouse, the possession of warrants or certificates importing a receipt and undertaking to deliver as aforesaid shall be deemed prima facie evidence of the ownership of the holder of the said warrants or certificates in the goods and merchandise affected thereby.

Compare: 1880 No 12 s 87

35 Holder of warrant entitled to delivery

Any holder of a warrant or certificate importing the obligations aforesaid shall be entitled, on request and on compliance with the terms of the contract implied by such warrants or certificates between the warehouseman and the original bonder of the goods, to have delivery thereof, or to have his or her name entered upon the books of the warehouse keeper as the owner of the said goods.

Compare: 1880 No 12 s 88

36 Registered holder of warrant deemed to be owner

Save in the event of fraud being proved in the procurement of the entry of the name of the holder of the certificates or warrants in the warehouse keeper’s books, the person whose name is so entered shall be conclusively deemed the then owner in possession of the said goods, subject to the provisions hereinafter contained.

Compare: 1880 No 12 s 89

37 The registered transferee of warrant to lose his or her right of lien if warrant afterwards delivered over bona fide and for value

In the event of any transfer being entered in the books of the warehouse keeper, and the then owner of bonded goods delivers over the warrants or certificates relating to or affecting the same to any other person on a sale or pledge of the said goods, and such warrants or certificates are afterwards delivered over bona fide and for value to any subpurchaser or pledgee by the person receiving the same from the owner whose name is entered as aforesaid, the rights legal and equitable of the said owner as an unpaid vendor to stop the actual delivery of the goods comprised in and affected by such warrants or certificates shall be deemed at an end as from the time of the bona fide delivery of the warrants or certificates to the first subpurchaser or pledgee for value.

Compare: 1880 No 12 s 90

38 Warrants of free goods put on the same footing as bond warrants

Where goods are stored in any free warehouse, and warrants or certificates, importing on behalf of the warehouseman a receipt of the goods and an undertaking to deliver the same on presentation and demand and on payment of the rents and charges lawfully demandable, are delivered to and accepted by the person originally warehousing such goods, the respective rights and liabilities of the warehouseman and warehouse keeper, and of the persons to whom the said warrants or certificates were originally issued, or are afterwards delivered or redelivered upon a resale or pledge bona fide and for value of the goods, or in whose name the ownership may be transferred in the books of the warehouse keeper, or who afterwards acquires possession bona fide and for value of the said warrants or certificates, shall be the same in all respects as is hereinbefore provided with regard to goods liable to the payment of Customs duties and stored in a bonded warehouse.

Compare: 1880 No 12 s 91

39 Provisions same in respect of bonded and free warehouses

The provisions herein relative to the rights of or incident to the ownership of goods stored in a bonded warehouse shall be as applicable to the ownership of goods stored in a free warehouse as if such provisions had been respectively repeated and expressly applied thereto.

Compare: 1880 No 12 s 92

40 Vendor’s lien not prejudiced save as against bona fide subpurchaser or pledgee for value

Nothing herein shall in any way prejudice the rights of an unpaid vendor of goods to stop delivery thereof until payment of the price payable to him or her whenever such rights may be lawfully exercised without detriment or injury to any subpurchaser or pledgee bona fide and for value, or to the rights of any trustee in bankruptcy claiming under the purchaser from the unpaid vendor.

Compare: 1880 No 12 s 93

41 Goods not to be transferred in books of warehouseman except on production of warrant

(1)

No entry shall be made in the books of any warehouseman or keeper of any bonded or free warehouse transferring the ownership or possession of any goods, unless the person applying for such entry to be made produces and delivers up the warrants or certificates originally issued.

(2)

Thereupon the warehouseman or the keeper of his warehouse may cancel the said warrants or certificates and issue others in lieu thereof, and such new warrants or certificates may in like manner be cancelled and others issued in substitution thereof.

Compare: 1880 No 12 s 94

42 Special contracts restraining negotiability of warrants permitted

(1)

Notwithstanding anything herein, the person originally storing goods in any bonded or free warehouse, and the warehouseman thereof, may enter into a special contract restraining the negotiability of the warrants or certificates issued in respect of the said goods, or providing some special method of transfer of the property in and possession of such goods.

(2)

In every such case the terms of such special contract shall be incorporated in and made to appear upon the face of the said warrants or certificates, so that the holder thereof may have his or her attention expressly directed thereto.

Compare: 1880 No 12 ss 95, 96

43 Warehouseman’s lien not prejudiced by sale or transfer of goods

No transfer of the ownership or possession of the goods stored in any bonded or free warehouse shall in any way prejudicially affect the lien or rights of the warehouseman in respect of any rent or charges previously incurred or become payable on account of the goods the ownership or possession whereof may be so transferred as aforesaid.

Compare: 1880 No 12 s 97

Part 6 Book purchasers protection

[Repealed]

Part 6: repealed, on 17 June 2014, pursuant to section 41(2) of the Fair Trading Amendment Act 2013 (2013 No 143).

44 When agreement for purchase of books to be void
[Repealed]

Section 44: repealed, on 17 June 2014, by section 41(2) of the Fair Trading Amendment Act 2013 (2013 No 143).

Schedule Enactments consolidated

Book Purchasers Protection Act 1891 (1891 No 21)

Mercantile Agents Act 1890 (1890 No 11): except sections 10 and 11

Mercantile Law Act 1880 (1880 No 12): except sections 4, 41, 43, 45 to 51, 59 to 77, and 81 to 83

Mercantile Law Act Amendment Act 1889 (1889 No 11)

Mercantile Law Amendment Act 1922

Public Act
1922 No 25
Date of assent
16 October 1922
Commencement
16 October 1922
1 Short Title

This Act may be cited as the Mercantile Law Amendment Act 1922 and shall be read together with and deemed part of the Mercantile Law Act 1908.

3 Special provisions as to “received for shipment” bills of lading

(1)

In this section the expression “received for shipment” bill of lading means a shipping document issued in accordance with the provisions of this section, signed by a person purporting to be authorised to sign the same, and acknowledging that the goods to which the document relates have been received for shipment.

(2)

No “received for shipment” bill of lading shall be issued—

(a)

until the goods are in possession of the owner of the ship or of some person duly authorised on his or her behalf:

(b)

except for a named ship in which space has been actually reserved:

(c)

earlier than 21 days before the time when the ship is expected to be in port in readiness to load;

but the issue of a “received for shipment” bill of lading shall be sufficient evidence until the contrary is proved that the requirements of this subsection have been complied with.

(3)

Every “received for shipment” bill of lading shall contain a provision that, in the event of the goods being unavoidably shut out from the named ship, the shipowner shall forward the goods by his or her next available ship, or, at his or her option, by a ship of some other owner, or by a ship sailing within a specified number of days, but otherwise on the same terms and conditions, mutatis mutandis, as if the goods were actually shipped by the named ship.

(4)

Every “received for shipment” bill of lading shall for all purposes be deemed to be a valid bill of lading with the same effect and capable of negotiation in all respects and with the same consequences as if it were a bill of lading acknowledging that the goods to which it relates had been actually shipped on board.

Reprints notes
1 General

This is a reprint of the Mercantile Law Act 1908 that incorporates all the amendments to that Act as at the date of the last amendment to it.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Fair Trading Amendment Act 2013 (2013 No 143): section 41(2)

Telecommunications Act 2001 (2001 No 103): section 158

Personal Property Securities Act 1999 (1999 No 126): section 191(1)

Arbitration Act 1996 (1996 No 99): section 17

Mercantile Law Amendment Act 1994 (1994 No 106)

Constitution Act 1986 (1986 No 114): section 29(2)

Carriers Act 1948 (1948 No 66): section 11

Mercantile Law Amendment Act 1922 (1922 No 25)