Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999

Citations:

[1999] EWCA Civ 1660, [1999] EuLR 939

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Airport Co-Ordination Limited ex parte Aravco Limited; Dravidian Air Services Limited; Falcon Jet Centre Limited; Gama Aviation Limited; Heathrow Jet Charter Limited; Metro Business Aviation Limited and Siebe Plc Admn 14-Jul-1998
. .
Appeal fromRegina v Airport Co-Ordination Limited ex parte Aravco Limited; Dravidian Air Services Limited; Falcon Jet Centre Limited; Gama Aviation Limited; Heathrow Jet Charter Limited; Metro Business Aviation Limited and Siebe Plc Admn 14-Jul-1998
. .

Cited by:

CitedEisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
CitedEisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Lists of cited by and citing cases may be incomplete.

Transport, European

Updated: 21 January 2023; Ref: scu.146575

Antwerp United Diamonds; BVBA and Another v Air Europe (A Firm): CA 15 May 1995

The limit for an air carrier’s liability does not apply where there had ben extreme misconduct by the airline.

Citations:

Ind Summary 15-May-1995

Statutes:

Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929 Art 2292)(a)

Jurisdiction:

England and Wales

Transport

Updated: 21 January 2023; Ref: scu.77824

Schenker Ltd v Negocios Europa Ltd B20: QBD 6 Oct 2017

Losses from delay in air transportation of commercial cargoes.
Held: The preliminary issue would be answered in the claimant’s favour, that there would be no set-off against the air freight. The defendant would be obliged to bring a separate claim against the claimant for the alleged breach of contract.

Judges:

Moulder J

Citations:

[2017] WLR(D) 755, [2017] EWHC B20 (QB)

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Transport

Updated: 21 January 2023; Ref: scu.601095

Bank Line Ltd v Arthur Capel and Co: HL 12 Dec 1918

The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The charterparty embodied no specific date as the date for the initial delivery of the vessel; it was a charter to run from the date when the vessel was delivered, but it embodied a clause providing for an earliest date of delivery and a cancellation date. The defendants then contracted to sell the ship conditionally upon it being released by the government. That happened and the ship was sold.
Held: The application of the doctrine of frustration was not excluded by the contractual term. The requisition and taking of the possession of the steamer was sufficient to destroy Even though an express term may deal with the cancellation of the contract for non-delivery, and also for a cancellation for requisition, such a term here did not prevent the owners from arguing that the contract had been frustrated.
Lord Sumner discussed the doctrine of frustration: ‘One matter I mention only to get rid of it. When the shipowners were first applied to by the Admiralty for a ship they named three, of which the Quito was one, and intimated that she was the one they preferred to give up. I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a -self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated. Nothing, however, was made of this in the courts below, and I will not now pursue it.’
and that a contract: ‘ought not to be left in suspense or to hang on the chances of subsequent events.’
Lord Wrenbury said: ‘The owners agreed to let and the charterers to hire the steamer for 12 months, to commence at a date not fixed so far as Article 1 is concerned, except that it was to be the date when she was placed at the disposal of the charterers at a coal port as ordered by them. The effect of Article 26 is that that date may be any date not before April 1 subject to the right of the charterers to refuse her and to cancel the charter if she is tendered after April 30. During a reasonable time the owners owed to the charterers the contractual duty of tendering the vessel. If they were for reasons beyond their control unable to tender her within a reasonable time their contractual duty in that respect would cease.’

Judges:

Lord Sumner, Lord Finlay LC, Haldane V, Shaw of Dunfermline L, Wrenbury L

Citations:

[1918] UKHL 1, [1919] AC 435, 35 TLR 150

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedMaritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
CitedMaritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
CitedJames B Fraser and Co Ltd v Denny, Mott and Dickson Ltd HL 19-May-1944
The House was asked whether a contract, entered into before the war, has been brought to a premature conclusion by war regulations which render illegal, and therefore prevent, the due performance of some of the obligations or the due enjoyment of . .
CitedBunge Sa v Kyla Shipping Company Ltd ComC 10-Dec-2012
. .
CitedJames Scott and Sons, Ltd v R and N Del Sel and Another SCS 22-Jun-1922
Frustration of Contract – Arbitration – Contract to Ship Jute – Order in Council Prohibiting Export of Jute – Suspension or Termination of Contract – Application of Arbitration Clause. . .
CitedWong Lai Ying and Others v Chinachem Investment Co Ltd PC 27-Nov-1979
(Hong Kong) . .
CitedDavis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
CitedLauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
CitedBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust QBD 5-Feb-2014
The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 20 December 2022; Ref: scu.265985

Global Process Systems Inc and Another v Berhad: CA 17 Dec 2009

An oil rig suffered major damage in transit in rough seas. The insurers repudiated liability saying that the damages was the result of a natural vice rather than perils at sea.
Held: The fact that the sea conditions were within the range of what might be expected did not mean that the court must conclude that the loss was due to an inherent vice. However, in this case there were acknowledged difficulties with the structure, and these had not been addressed. The proximate cause of the loss was an insured peril in the form of the occurrence of a ‘leg breaking wave’, which resulted in the starboard leg breaking off, leading to greater stresses on the remaining legs, which then also broke off.

Judges:

Waller LJ VP, Carnwath LJ, Patten LJ

Citations:

[2009] EWCA Civ 1398, [2010] Lloyd’s Rep IR 221, [2009] 2 CLC 1056, [2010] 1 Lloyd’s Rep 243

Links:

Bailii, Times

Statutes:

Marine Insurance Act 1906 39 40 55

Jurisdiction:

England and Wales

Citing:

AnalysedMayban General Assurance Bhd, AMI Insurans Bhd, Malaysian International Insurance Bhd, Syarikat Takaful Malaysia Bhd v Alstom Power Plants Ltd, Alstom T and D Ltd QBD 11-May-2004
An electrical transformer was shipped from Ellesmere Port to Rotterdam and there transferred to a container vessel for carriage to Lumut. Severe weather was encountered, but not such as a commercial person would regard as falling outside the range . .
Appeal fromGlobal Process Sytems Inc and Another v Syarikat Takaful Malaysia Berhad ComC 31-Mar-2009
The Cendor MOPU
The insurance company had refused a claim after the failure of an oil rig, saying that the loss of the rig legs during transit was the inevitable consequence of the voyage, and that since insurance was against risks, not certainties, they were under . .
CitedNE Neter and Co Ltd v Licenses and General Insurance Co Ltd 1944
A cargo of casks and bags of china clay out-turned damaged, as a result of the stoving in of the casks on a voyage during which there had been heavy weather.
Held: The claim failed. The plaintiffs had not proved that the proximate cause of the . .
CitedSoya GmbH Mainz Kommanditgesellschaft v White CA 1982
Where insured goods deteriorated during a passage, not because they had been subjected to some external fortuitous accident or casualty, but because of their natural behaviour in the ordinary course of the voyage, then such deterioration amounted to . .
CitedSoya GmbH Mainz Kommanditgesellschaft v White HL 1983
The cargo, soya beans, was insured against heating, sweating and spontaneous combustion risks. It arrived in a heated and deteriorated condition. The insurers denied liability saying that the proximate cause of the damage was inherent vice or nature . .
CitedJ J Lloyd Instruments Limited v Northern Star Insurance Co Ltd; The Miss Jay Jay CA 1987
The insurers insured against an adverse sea but not against defective manufacture or design. Both were found to be proximate causes of the loss.
Held: The Court of Appeal upheld the first instance judge that the owners could claim under the . .
CitedJ J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd ‘The Miss Jay Jay’ 1985
Mustill J considered liability under a marine insurance where damage was suffered when the sea state was within what might reasonably be anticipated: ‘The cases make it quite plain that if the action of the wind or sea is the immediate cause of the . .

Cited by:

Appeal fromGlobal Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 20 December 2022; Ref: scu.384330

‘Prince George’–(Shaw): 2 May 1837

An agreement for wages, as purser, having been entered into by a master and sole owner, the purser, prior to the ship’s sailing, signed the usual articles, but in which there was no rate of wages specified for him. After the completion of the outward voyage he ceased, by the master’s orders, to do duty as purser, but was not regularly suspended for neglect of duty, the wages pronounced for, and a mortgagee, who opposed them, condemned in costs.
Quaere, whether though the owner be bankrupt, and the ship has been sold, and the proceeds are Insufficient to pay mortgagees, a principal mortgagee has sufficient interest to oppose a mariner’s claim for wages?

Citations:

[1837] EngR 688, (1837) 3 Hag Adm 376, (1837) 166 ER 445

Links:

Commonlii

Jurisdiction:

England and Wales

Transport, Employment, Insolvency

Updated: 20 December 2022; Ref: scu.313805

West of England Ship Owners Mutual Insurance Association (Luxembourg) v Cristal Ltd (The Glacier Bay): CA 26 Oct 1995

An agreement giving to a ‘sole judge’ the power to make a final decision was effective, and there was no appeal from his decision. The defendant’s decision in his capacity as Convention administrator was as a final arbiter and was unreviewable.
Held: The appeal was allowed. The agreement was unusual, but the decisions was final and binding ‘ . .subject . . to any question of unfairness, bad faith or perversity’. Neill LJ ‘It remains the general rule of common law that an agreement wholly to oust the jurisdiction of the Courts is against public policy and void. . . It is clear, however, that in applying the rule questions of fact are treated differently from questions of law . .’

Judges:

Neill LJ

Citations:

Times 26-Oct-1995, Independent 01-Nov-1995, [1996] 1 Lloyd’s Rep 370, [1996] CLC 240

Jurisdiction:

England and Wales

Citing:

Appeal fromWest of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd ComC 25-Jan-1995
cw Contract – contractual rights – fulfilment of conditions – freedom to fulfil bargain – court action precluded – ouster clauses – arbitration – term – construction – one party sole arbitrator of construction – . .

Cited by:

CitedSkidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Reversed on AppealWest of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd ComC 25-Jan-1995
cw Contract – contractual rights – fulfilment of conditions – freedom to fulfil bargain – court action precluded – ouster clauses – arbitration – term – construction – one party sole arbitrator of construction – . .
CitedMcNicholas Plc v AEI Cables Limited TCC 25-May-1999
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .
Lists of cited by and citing cases may be incomplete.

Transport, Arbitration, Contract

Updated: 20 December 2022; Ref: scu.90396

King v Bristow Helicopters Limited: SCS 12 Jul 2000

The pursuer and reclaimer sought damages as reparation for ‘loss, injury and damage’ which he claims to have suffered as the result of his involvement in an incident on 22 December 1993. At the relevant time the pursuer was a passenger on board a helicopter chartered by the defenders.

Judges:

Lord President, Lord Cameron of Lochbroom, Lord Reed

Citations:

[2001] 1 LLR 95, [2001] 1 Lloyd’s Rep 95, 2001 SCLR 393, [2000] ScotCS 195

Links:

Bailii

Jurisdiction:

Scotland

Personal Injury, Transport

Updated: 09 December 2022; Ref: scu.163935

M White (Skips) Limited: UTAA 30 Apr 2020

Application for a restricted licence; fitness to hold a restricted licence; unlawful operation of goods vehicles; adequacy of the call up letter; procedural fairness and failure to consider adjourning hearing for the Applicant to address issue of unlawful operation; application of Priority Freight and Bryan Haulage questions

Citations:

[2020] UKUT 153 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 09 December 2022; Ref: scu.651820

Vaditrans v Belgische Staat: ECJ 20 Dec 2017

Transport Transport Social Policy Fundamental Rights – Charter of Fundamental Rights) Reference for a preliminary ruling – Road transport – Driver’s rest periods – Regulation (EC) No 561/2006 – Article 8(6) and (8) – Whether it is possible to take daily rest periods and reduced weekly rest periods away from base and in a vehicle – Exclusion of regular weekly rest periods

Citations:

C-102/16, [2017] EUECJ C-102/16

Links:

Bailii

Jurisdiction:

European

Human Rights, Transport

Updated: 09 December 2022; Ref: scu.602118

Alexander Hatfield v Lawrence Phillips, S Phillips, J E Larrieu, Lewis Rogers, And W Gray: 30 Jul 1845

A foreign owner of goods consigned them to a factor in London, to whom he indorsed the bill of lading in blank, and transmitted it, with instructions to receive and sell the goods. The factor received the goods, paid the freight and charges thereon, and entered them in his own name at the Custom House, by reason of which, and without the privity or express assent of the owner, he obtained a dock warrant, which he pledged for advances beyond the amount for which, as a factor, he had a lien on the goods.
Held that, under these circumstances, he was not intrusted with the dock warrant
within the meaning of the second section of the act 6 Geo. 4, c. 94.

Citations:

[1845] EngR 1172, (1845) 12 Cl and Fin 343, (1845) 8 ER 1440

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Transport

Updated: 09 December 2022; Ref: scu.304314

Regina v London Underground Ltd and Another, ex parte Transport for London: QBD 30 Jul 2001

The Act gave the power to the government to override the policy of the Mayor of London and the Transport for London authority, and to enter into private partnerships for the management of the underground system by the private sector. Although the Mayor had an obligation to publish, review and implement a strategy for the management of the underground, and TFL had an obligation to run the Underground to a safe and adequate standard, it was for the Secretary of State, and not the Mayor to approve principles behind the contracts, and to direct that they be entered into.

Judges:

Sullivan J

Citations:

Times 02-Aug-2001

Statutes:

Greater London Authority Act 1999 210

Jurisdiction:

England and Wales

Citing:

Appealed toLondon Regional Transport, London Underground Limited v Mayor of London Transport for London CA 24-Aug-2001
The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. . .

Cited by:

Appeal fromLondon Regional Transport, London Underground Limited v Mayor of London Transport for London CA 24-Aug-2001
The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. . .
Lists of cited by and citing cases may be incomplete.

Transport, Local Government

Updated: 09 December 2022; Ref: scu.136157

Upright Scaffold Limited: UTAA 20 Feb 2020

The suitability of the proposed operating centre on environmental grounds; whether conditions should have been attached to the licence; whether the undertaking to obtain a Certificate of Lawful Use should have been required of the owner of the proposed operating centre

Citations:

[2020] UKUT 64 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 07 December 2022; Ref: scu.651799

Kidston v Empire Insurance Co: 1866

The court was asked whether shipowners could recover under a sue and labour clause in a freight policy for the costs of transhipment expended in order to avoid the loss of the freight. There had been no abandonment and underwriters argued that this was fatal to the claim.
Held: Willes J said: ‘As to the second head, – whether the occasion upon which the expenses were incurred was such as to be within the suing and labouring clause, – this depends upon the true answer to the question so thoroughly discussed in the course of the argument, viz. whether the clause ought to be limited in construction to a case where the assured abandons, or may perchance abandon, so that the expense incurred is not only in respect of a subject-matter in which the underwriters are interested, but upon property which, by the abandonment, actually becomes, or may become, theirs, or whether it extends to every case in which the subject of insurance is exposed to loss or damage for the consequences of which the underwriters would be answerable, and in warding off which labour is expended. In the former construction the clause is inapplicable to the present case; in the latter it is applicable, and the assured is entitled to contribution.’

Judges:

Willes J

Citations:

(1866) LR 1 CP 535

Jurisdiction:

England and Wales

Cited by:

CitedCosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08 ComC 11-Jun-2010
The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 07 December 2022; Ref: scu.416715

The Cathcart: 1867

Citations:

(1867) LR 1 A and E 314

Jurisdiction:

England and Wales

Cited by:

CitedBanque Worms v Owners of the Ship Or Vessel Maule and others PC 24-Feb-1997
(Hong Kong) The ship-owners challenged the arrest of the ship under a mortgage in favour of the bank. They said no instalment was due.
Held: The plaintiffs were not obliged to give notice accelerating repayment of the loan before exercising . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 07 December 2022; Ref: scu.242404

Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd: 1942

In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and that the collision arose as a consequence of that warlike operation. The Orlock Head was carrying steel bars for munitions to France and was following a course set by the Admiralty.
Held: The court considered the significance which can flow from merchant vessels having travelled in convoy.
Atkinson J: ‘The conclusion at which I have arrived from a careful examination of the authorities to which I have referred is this, that a warlike operation is one which forms part of an actual or intended belligerent act or series of acts by combatant forces; that part may be performed preparatory to the actual act or acts of belligerency, or it may be performed after the actual acts or acts of belligerency, but there must be a connection sufficiently close between the act in question and the belligerent act or acts to enable a tribunal to say, with at least some modicum of Lord Dunedin’s common sense, that it formed part of acts of belligerency. If military equipment is being taken in a ship to a place behind the fighting front from which the forces engaged, or about to be engaged on that front, may be supplied, that ship may beyond question be said to be taking part in a warlike operation. If a ship is bringing home such equipment after it has been employed on a fighting front, or has been lying available for and at the service of a fighting front, again beyond question in view of the decisions she is taking part in military operation; but to hold that to carry steel rounds on behalf of the French Armament Mission from Manchester to a port mainly used for commercial purposes, albeit also used at times for receiving supplies of munitions of war, for the purpose of carriage to some factory or factories doubtless to be chosen because of their distance from the fighting front, is a warlike operation would be to hold something which, in my judgment, would be completely out of harmony with the substance of everything said since Britain Steamship Company, Ltd. v. The King, sup. The cargo of the Orlock Head was not yet military equipment. I do not say that that is in itself conclusive. It is unnecessary so to decide. Army workshops may, for all I know, have to handle much material not yet in its final usable form, but this cargo was not destined for a force in the field, but only for a factory; it was not being carried to a place where it would be available for an army in the field; that is, an army engaged in or about to engage in acts of belligerency; it was not connected with any belligerent act or acts of an army in being; and, in my judgment, it is outside everything indicated in the cases to which I have referred. It is quite true that odd sentences here and there may be found in the judgments and opinions given in the cases which, taken by themselves, may seem to go beyond the view which I think the cases present; for example, a passage much stressed by Mr. Hodgson: ‘The real point to my mind …. is whether the ship in question was engaged on a war errand, so that she was engaged in a warlike operation at the moment when the collision occurred,’ language used by Lord Wrenbury in Liverpool and London War Risks Insurance Association, Ltd v Marine Underwriters of s.s. Richard de Larrinaga, but if the context is examined it will be seen that he was speaking, not of a commercial ship, but of a warship where different considerations apply. If there is to be a further development in the application of the words ‘warlike operation’ it must come from a higher tribunal than a judge of first instance. In my judgment, therefore, the collision was not a consequence of hostilities or of a warlike operation, and the claim fails’.

Judges:

Atkinson J

Citations:

[1942] 73 Ll L Rep 165

Jurisdiction:

England and Wales

Citing:

AppliedBritain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . .

Cited by:

CitedFogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Transport

Updated: 07 December 2022; Ref: scu.237693

Bridgestep Limited; Bridge (Use of ‘Self-Employed’ Drivers Under Contract for Services): UTAA 4 Mar 2020

The use of ‘self-employed’ drivers under contract for services; whether such contracts were consistent with the operator’s responsibilities under the operator’s licence; whether the transport manager had continuous and effective management of transport operations without the right to direct and control its drivers; adequacy of notice that adverse findings likely or possible on these issues

Citations:

[2020] UKUT 121 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 06 December 2022; Ref: scu.651801

Schiffahrtsgesellschaft MS Merkur Sky MbH and Co KG v MS Leerort NTH Schiffahrts GmbH and Co KG: CA 27 Jun 2001

Collision in harbour – limitation of liability under the 199 Act

Judges:

Lord Phillips MR, Henry LJ, Brooke LJ

Citations:

[2001] EWCA Civ 1055, [2001] 2 Lloyd’s Rep 291, [2001] 2 LLR 291

Links:

Bailii

Statutes:

Merchant Shipping Act 1995

Jurisdiction:

England and Wales

Transport

Updated: 06 December 2022; Ref: scu.375987

B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’): 19 Apr 2000

A time charterparty was dated 20 October 1997 for a period of 11 months, maximum 12 months at charterers’ option. It referred to various major oil company approvals, including that of Mobil, all on the point of expiring, and provided that if, during the charter term, the owners lost one of these approvals, they should reinstate the same within 30 days failing which the charterers would be at liberty to cancel the charterparty. The owners also guaranteed to obtain an approval from Exxon within 60 days of the charter date. The vessel was duly delivered but the owners had not obtained an Exxon approval from Exxon and did not do so within 60 days from the charter date. On 30 December 1997 the charterers fixed the vessel to load a cargo of Exxon products. On the same date the charterers asked the owners if they had obtained the Exxon approval and gave notice requiring the owners to obtain it by 5 January 1998. The owners replied that the vessel would be ready for Exxon inspection by late January or early February. The charterers responded by terminating the charter and redelivering the vessel. At a first hearing Aikens J held that the 60-day guarantee was an innominate term, not a condition, and the charterers were not entitled to terminate, and had repudiated the charterparty, which the owners had accepted. In subsequent proceedings the owners sought damages for wrongful termination, claiming the difference between the daily hire rates in the charter and the alternative employment found for the vessel for the rest of the charter period. The charterers contended that the owners would have lost their Mobil approval on 27 January 1998 and would not have been able to regain it within 30 days, namely 26 February: therefore the charterers would be contractually entitled to cancel, and the owners’ damages should end then.
Held: Timothy Walker J discussed the three judgments in the Mihalis Angelos, discounting Megaw LJ’s formulation as that of a minority, but found on the facts, as established at 30 December 1997, that the owners would have lost the Mobil approval on 27 January 1998. This was supported by evidence of what actually happened after 30 December. The charter would have come to an end on 26 February, and the court limited the owners’ damages accordingly.

Judges:

Timothy Walker J

Citations:

[2000] 2 Lloyd’s Rep 37

Jurisdiction:

England and Wales

Citing:

Examined, Megaw LJ discountedMaredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

Cited by:

CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 06 December 2022; Ref: scu.252436

British Imex v Midland Bank: 1958

Salmon J emphasised that the term ‘a clean’ bill of lading had never been exhaustively defined and that he did not attempt to do so in that case, but described a ‘clean’ bill of lading as ‘one that does not contain any reservations as to the apparent good order and condition of the goods or the packing’.

Judges:

Salmon J

Citations:

[1958] LR 1 QB 542

Jurisdiction:

England and Wales

Cited by:

CitedSea Success Maritime Inc v African Maritime Carriers Ltd ComC 15-Jul-2005
The ship’s master had refused to accept the cargo relying on clause 52 of the standard form charterpraty agreement saying that the cargo had been damaged.
Held: Only if the shippers continued to insist on the description, and the master . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 06 December 2022; Ref: scu.229994

MSC Mediterranean Shipping Co Sa v Polish Ocean Lines (The Tychy): CA 31 Mar 1999

A slot charterer had a right in a ship, even if only of a part of the ship, and so a claim under the agreement to arrest a sister ship of the chartering company could be heard within the Admiralty Court’s jurisdiction.

Judges:

Moore-Bick VP CA, Tomlinson LJJ, Keehan J

Citations:

Times 30-Apr-1999, Gazette 06-May-1999, [1999] EWCA Civ 1150

Statutes:

Supreme Court Act 1981 21(4)(b)

Jurisdiction:

England and Wales

Citing:

CitedAttica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago CA 1976
The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs . .
Lists of cited by and citing cases may be incomplete.

Transport, Litigation Practice

Updated: 05 December 2022; Ref: scu.84103

Havelock v Geddes: 1809

If the obligation of seaworthiness in a charterparty contract were a condition precedent then the neglect of putting in a single nail after the ship ought to have been made tight, staunch, etc., would be a breach of the condition and a defence to the whole of the plaintiff’s demand.

Judges:

Lord Ellenborough

Citations:

(1809) 10 East 555

Jurisdiction:

England and Wales

Cited by:

CitedHong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 04 December 2022; Ref: scu.266190

re “The DAVID AGMASHENEBELI”: 2003

Tt is the shipper or his agent who is delivering the cargo and so it is the shipper who has actual or imputed knowledge as to its condition. The shipper will or ought to know whether there is any discrepancy between the description of the cargo in the sale documents or supplier’s note and the cargo which is actually to be loaded on board the ship. If the Master is under an obligation to the shipper under Article III(3) of the Hague Visby Rules, the Master must issue a bill of lading indicating the apparent order and condition of the cargo loaded on board. Therefore, before the Master can issue bills of lading that comply with the Hague Visby Rules obligation, he has to take a reasonable, non – expert view of the cargo that is about to be loaded, as he sees it. He must decide whether the ‘apparent order and condition’ of the cargo to be loaded is accurately described in the bills of lading and, if the expression ‘apparent good order and condition’ is used in the bill of lading, whether the apparent order and condition of the cargo is ‘good’, ie. ‘proper’.

Judges:

Colman J

Citations:

[2003] 1 Lloyd’s Rep 92

Jurisdiction:

England and Wales

Cited by:

CitedSea Success Maritime Inc v African Maritime Carriers Ltd ComC 15-Jul-2005
The ship’s master had refused to accept the cargo relying on clause 52 of the standard form charterpraty agreement saying that the cargo had been damaged.
Held: Only if the shippers continued to insist on the description, and the master . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2022; Ref: scu.229996

Welex A G v Rosa Maritime Limited: CA 3 Jul 2003

Judges:

Lord Justice Brooke Lord Justice May Lord Justice Tuckey

Citations:

A3/02/2230, A3/02/2231, [2003] EWCA Civ 938, [2003] 2 Lloyd’s Rep 509, [2003] 2 CLC 207

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromWelex Ag v Rosa Maritime Ltd ComC 2002
The court granted the respondent an anti-suit injunction to restrain them issuing proceedings in Poland on closely related issues. . .
Lists of cited by and citing cases may be incomplete.

Transport, Jurisdiction

Updated: 01 December 2022; Ref: scu.184227

The Gloria: 1935

‘I think that if it were shown that an owner had reason to believe that his ship was in fact unseaworthy, and deliberately refrained from an examination which would have turned his belief into knowledge, he might properly be held privy to the unseaworthiness of his ship. But the mere omission to take precautions against the possibility of the ship being unseaworthy cannot, I think, make the owner privy to any unseaworthiness which such precaution might have disclosed.’

Judges:

Branson J

Citations:

(1935) 54 LILR 35

Jurisdiction:

England and Wales

Cited by:

CitedManifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2022; Ref: scu.182839

The Anders Maersk: 1986

(Hong Kong High Court) A bill of lading stated that the port of shipment was Baltimore and the port of discharge was Shanghai. The bill gave a right of transshipment, which was exercised at Hong Kong. It was described as a through bill of lading. It made no express reference to Hong Kong at all. The plaintiffs’ cargo was damaged between Hong Kong and Shanghai. The issue was whether Hong Kong was the ‘port of shipment’ for the purposes of the Hong Kong equivalent of the 1971 Act.
Held: Transshipment was not the same as shipment, and that there had been only one port of shipment, Baltimore. Under the bill of lading terms, USCOGSA’s limitation applied. Unless reference is made to the contract between the parties, there would always be a likelihood that there would be an element of uncertainty. The shipper of goods may have no knowledge of the arrangements being made by the carrier, and it would put the shipper in an invidious position if he could only establish his rights by a subsequent re-construction of events which took place without his knowledge. The court rejected the argument that shipment includes transshipment. All the references to shipment in the rules are consistent with shipment being confined to the initial shipment referred to in the bill of lading.

Judges:

Mayo J

Citations:

[1986] Lloyds Rep 483

Jurisdiction:

England and Wales

Cited by:

CitedJ I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2022; Ref: scu.181884

SPC Aviation Ltd v Air Link One Ltd: ComC 4 Jun 2020

Claimant’s application for summary judgment. It is the claimant’s case that the defendant is currently and wrongly registered on the UK register of civil aircraft maintained by the Civil Aviation Authority as the charterer by demise of the aircraft. By these proceedings the claimant sought both a declaration and injunctive relief in order to enable it to procure that the Register is updated to reflect the position that the claimant asserts is the correct current ownership.

Judges:

Mrs Justice Moulder

Citations:

[2020] EWHC 1419 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 01 December 2022; Ref: scu.651189

Times Trading Corporation v National Bank of Fujairah (Dubai Branch): ComC 5 May 2020

Claimant’s application for an interim anti-suit injunction restraining National Bank of Fujairah (Dubai Branch) from prosecuting or continuing proceedings it has commenced against Times in the High Court of the Republic of Singapore. The basis for the application is that such proceedings have been commenced in breach of NBF’s contractual obligation to arbitrate in London.

Judges:

Mrs Justice Cockerill DBE

Citations:

[2020] EWHC 1078 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Transport

Updated: 01 December 2022; Ref: scu.651182

Panamax Star Owners and or Bailees of The Cargo of The Ship) v Auk (Owners of The Ship): AdCt 18 Dec 2013

A strike out was sought alleging gross delay and an abuse of process.
Held: The strike out was granted both as to the claim and counter claims.
Hamblen J discussed first the issues surrounding delay: ‘In summary, the authorities provide the following guidance:
(1) There are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case.
(2) The relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so how it can be compensated for, and whether the delay is such that it is no longer possible to have a fair trial.
(3) A defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant.
(4) In considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR.’
Hamblen J then said ‘ To commence or to continue proceedings which you have no intention to bring to a conclusion may constitute an abuse of process’

Judges:

Hamblen J

Citations:

[2013] EWHC 4076 (Admlty), [2014] 1 Lloyd’s Rep 606

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedGrovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
CitedHabib Bank Limited v Gulzar Haider Jaffer; Habib Bank Limited v Haider Ladhu Jaffer CA 5-Apr-2000
A major litigation action was characterised by persistent delay on behalf of the plaintiffs. They had failed to follow advice given to them by their solicitors regarding the need to make progress. In the circumstances, the delay could only be . .
CitedArbuthnot Latham Bank Limited; Nordbanken London Branch v Trafalgar Holdings Limited; Ashton and Ashton CA 16-Dec-1997
The issue was the appropriateness of a Court striking an action out where there has been considerable delay if: (i) the cause of action relied upon by the plaintiff in the proceedings would be statute barred if the action were to be struck out, but . .
Lists of cited by and citing cases may be incomplete.

Transport, Litigation Practice

Updated: 30 November 2022; Ref: scu.519220

Brannan v Airtours Plc: CA 18 Jan 1999

The judge at first instance had set the level of contributory negligence too high. He looked at the defendant’s apparent folly rather than looking to the defendant’s folly in exposing the defendant to the risk, and promoting that folly by providing free drinks.

Judges:

Auld, Ward LJJ

Citations:

Times 01-Feb-1999, [1999] EWCA Civ 588

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Cited by:

CitedJackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Transport

Updated: 30 November 2022; Ref: scu.145503

ERG Raffinerie Mediterranee Spa v Chevron USA Inc (T/A Chevron Texaco Global Trading): CA 22 May 2007

‘whether an fob contract which provides for a delivery period to be narrowed to a laycan period (viz a period before which laydays will not start and after which a seller may cancel the contract if the ship which is due to take the cargo has not served a notice of readiness to load) is a traditional fob contract in which the buyer can terminate the contract if the goods are not shipped within the period originally designated for delivery. ‘

Judges:

Buxton LJ, Longmore LJ, Sir Martin Nourse

Citations:

[2007] EWCA Civ 494, [2007] 2 Lloyd’s Rep 542

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 27 November 2022; Ref: scu.252459

Evans v Nichol: 1841

Citations:

(1841) 3 MandG 614

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194547

Bryans v Nix: 1839

Citations:

(1839) 4 MandW 775

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194546

Dawes v Peck: 1799

Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper.

Citations:

(1799) 8 Term Rep 330

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
CitedAlbacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194552

Stindt v Roberts: 1848

Carrier’s lien under bill of lading.

Citations:

(1848) 5 D and L 460

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194556

Glynn Mills v E and W India Dock Co: 1880

The effect of the assignment of a bill of lading on the title to the goods depends on the circumstances and the intention of the transferor and transferee.

Citations:

(1880) 6 QBD 475

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194550

Fox v Nott: 1861

Citations:

(1861) 6 H and N 630

Statutes:

Bills of Lading Act 1855

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 26 November 2022; Ref: scu.194564

Young v Moeller: 1855

Citations:

(1855) 5 E and B 755

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194557

The Delfini: 1990

Citations:

[1990] 1 Lloyd’s 252

Statutes:

Bills of Lading Act 1855

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194560

Smurthwaite v Wilkins: 1862

The endorser of a bill of lading is not liable after he has endorsed over the bill of lading to another who is liable; the shipper remains liable as an original party to the contract. ‘Looking at the whole statute it seems to me that the obvious meaning is that the assignee who receives the cargo shall have all the rights and bear all the liabilities of a contracting party; but that if he passes on the bill of lading by indorsement to another, he passes on all the rights and liabilities which the bill of lading carries with it.’ Rejecting the argument that the endorser having passed on all his rights to the endorsee should retain all his liabilities in respect of the goods: ‘Such a construction might be very convenient for the shipowner but it would be clearly repugnant to one’s notions of justice.’ and ‘The contention is that the consignee or assignee shall always remain liable like the consignor although he has parted with all interest and property in the goods by assigning the bill of lading to a third party before the arrival of the goods. The consequences which this would lead to are so monstrous so manifestly unjust that I should pause before I consented to adopt this construction of the act of parliament.’

Judges:

Erle CJ

Citations:

(1862) 11 CB(ns) 842

Statutes:

Bills of Lading Act 1855

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
ApprovedSewell v Burdick HL 1884
What does the word ‘property’ encompass in the context of the assignment of a bill of lading? Is it limited to the general property in the goods, that is, the legal title to the goods as is transferred by a sale? Or does it include the special . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 26 November 2022; Ref: scu.194565

Thompson v Dominy: 1845

Citations:

(1845) 14 M and W 403

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194551

Cock v Taylor: 1811

The carrier’s liens under a bill of lading are a qualification of the rights of the endorsee against the shipowner.

Citations:

(1811) 13 East 399

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 26 November 2022; Ref: scu.194554

C P Henderson and Co v The Comptoir D’Escompte de Paris: PC 1873

The court considered a bill of lading in the usual form, save that the words ‘or order or assigns’ are omitted. The court was prepared to assume that such a bill was not a negotiable instrument. It was argued that, notwithstanding the omission of these words, this bill of lading was a negotiable instrument, and there was some authority at nisi prius for that proposition; but the general view of the mercantile world was that, in order to make bills of lading negotiable, some such words as ‘or order or assigns’ ought to be in them.

Citations:

(1873-74) LR 5 PC 253

Jurisdiction:

Commonwealth

Cited by:

CitedJ I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
CitedJ I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Commercial, Transport, Contract

Updated: 25 November 2022; Ref: scu.181885

Borealis Ab v Stargas Ltd and Others: CA 30 Jul 1998

The holder of a bill of lading became liable upon completing any one of some initial steps, and retained that liability unless he actually took delivery. He remained liable until the bill was endorsed to somebody else who in turn fulfilled such a condition

Citations:

Times 14-Sep-1998, [1998] 4 All ER 821, [1998] EWCA Civ 1337

Links:

Bailii

Statutes:

Carriage of Goods by Sea Act 1992 2

Jurisdiction:

England and Wales

Citing:

Appealed toBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .

Cited by:

Appeal fromBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 25 November 2022; Ref: scu.78493

Regina v Cambridge City Council, Ex Parte Lane: CA 3 Sep 1998

A trishaw was properly a form of hackney carriage, not a ‘stage coach,’ and the Local Authority was able to impose conditions upon the licensing of a service, including limiting the number of passengers and so as to ensure safety. A trishaw was a ‘cross between a rickshaw and a bicycle and a tricycle. Like a tricycle, it has three wheels; a single front wheel and two rear wheels. Over the rear wheels, a compartment in which the passengers may sit is suspended. The vehicle is an adaptation of a rickshaw replacing the individual running on the ground and pulling the vehicle with an individual using cycle technique to provide the power for propelling the vehicle.’

Citations:

Gazette 03-Sep-1998, [1998] EWCA Civ 1202, (1999) RTR 1982

Statutes:

Town and Police Clauses Act 1847 38, Local Government (Miscellaneous Provisions) Act 1976 47

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Cambridge City Council ex parte Simon Lane Admn 2-Jun-1998
. .

Cited by:

Appealed toRegina v Cambridge City Council ex parte Simon Lane Admn 2-Jun-1998
. .
CitedOddy, Regina (on the Application of) v Bugbugs Ltd Admn 12-Nov-2003
A private prosecutor appealed dismissal of his complaint that the respondent had operated an unlicensed man-powered rickshaw service. The district judge had held that it was not a taxi service. It was, under the 1869 Act a stage carriage and . .
Lists of cited by and citing cases may be incomplete.

Licensing, Transport, Health and Safety

Updated: 25 November 2022; Ref: scu.86275

Wills Trustees v Cairngorm Canoeing and Sailing School: HL 1976

The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. ‘A public right of way on highways is established by use over the land of a proprietor.’ The existence of the right does not depend upon there being two termini for any journey. The right may embrace the passage of articles without human accompaniment, for instance, the floating of logs on the current either singly or in rafts.

Judges:

Lord Wilberforce, Lord Salmon, Lord Fraser of Tullybelton

Citations:

[1976] SC (HL) 30

Jurisdiction:

Scotland

Cited by:

CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedDirector of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
CitedAttorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Utilities, Transport, Land

Updated: 25 November 2022; Ref: scu.190125

Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star: PC 1980

A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. It was argued that because of the fundamental nature of the breach, the stevedore had deprived itself of the benefit of clause 17 of the bill of lading – the time bar clause.
Held: Lord Wilbeforce said: ‘A breach of a repudiatory character, which he contended that the breach in question was, entitles the innocent party, unless he waives the breach, to claim to be released from further performance of his obligations under the contract . . One of these obligations, counsel proceeded to argue, was to bring any action upon the breach within a period of one year, and the innocent party was released from this obligation. An alternative way of putting it was that the bringing of suit within one year was a condition with which the innocent party was obliged to comply: the repudiatory breach discharged this condition . . Their Lordships’ opinion upon these arguments is clear. However adroitly presented, they are unsound, and indeed unreal.’ The clause was all embracing: ‘it is quite unreal to equate this clause with those provisions in the contract which relate to performance. It is a clause which comes into operation when contractual performance has become impossible, or has been given up: then, it regulates the manner in which liability for breach of contract is to be established. In this respect their Lordships find it relevantly indistinguishable from an arbitration clause, or a forum clause, which, on clear authority, survive a repudiatory breach’. And ‘Mr Hobhouse appealed for support to some observations by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd, where reference is made to putting an end ‘to all primary obligations … remaining unperformed’. But these words were never intended to cover such ‘obligations’ to use Lord Diplock’s word, as arise when primary obligations have been put an end to. There then arise, on his Lordship’s analysis, secondary obligations which include an obligation to pay monetary compensation. Whether these have been modified by agreement is a matter of construction of the contract. The analysis, indeed, so far from supporting the consignee’s argument, is directly opposed to it. Their Lordships are of opinion that, on construction and analysis, clause 17 plainly operates to exclude the consignee’s claim.’

Judges:

Lord Wilbeforce

Citations:

[1981] 1 WLR 138, [1980] 3 All ER 257

Jurisdiction:

Australia

Citing:

CitedSuisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
CitedPhoto Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
CitedHeyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .

Cited by:

CitedSuper Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 25 November 2022; Ref: scu.193398

Associated Portland Cement Manufacturers Ltd v Teigland Shipping A/S (The Oakworth): 1975

Citations:

[1975] 1 Ll Rep 581

Jurisdiction:

England and Wales

Cited by:

CitedLady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Transport

Updated: 24 November 2022; Ref: scu.225445

Hibbert v Carter: 1787

The indorsement of a bill of lading in favour of a creditor prima facie conveys the whole of the property to the assignee from the time when they are delivered, but where the assignment in its face intended only to bind the net proceeds in case of arrival, an insurance made on account of the indorser is good even if made after the indorsement.

Citations:

(1787) 1 Term Rep 745, (1787) 99 ER 1355

Jurisdiction:

England and Wales

Transport

Updated: 24 November 2022; Ref: scu.222774

Evans v Martell (or Marlett): 1697

Property is consigned not by the invoice but by the bill of lading. A bill of lading is capable of assignment. Any action against the master for a loss must be brought by the person in whom the property in the goods is vested. On a general consignment of the property, it vests in the consignee even though it may appear from the invoice that he is a trustee only. On a consignment to A for the use of B, the property is in B.

Citations:

[1697] 12 Mod Rep 156, [1697] 3 Salk 290

Jurisdiction:

England and Wales

Transport

Updated: 24 November 2022; Ref: scu.222773

Dunlop v Lambert: HL 16 Jun 1839

A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the event of the property being lost, whether it be true in law, that the sending of an invoice to the consignee, by which it appeared that the property had been insured and the freight paid by the consignor, and the amount charged by the consignor to the consignee, deprived the consignor of the power of suing, and of an interest or right to recover the value of the property.’
Held: While in general delivery to the carrier was delivery to the consignee and the risk then passed to the consignee, that position could be varied: ‘If a particular contract be proved between the consignor and the consignee, – and it does not follow that the circumstance of the freight and the insurance being paid by the one or the other is to be considered a conclusive evidence of ownership, – as notwithstanding the ordinary rule, of course there may be special contracts; – where the party undertaking to consign undertakes to deliver at a particular place, and if he undertakes to deliver at a particular place, the property, till it reaches that place, and is delivered according to the contract, is at the risk of the party consigning; so although the consignor may follow the directions of the consignee, and deliver the property to be conveyed, either by a particular carrier or in the ordinary course of business, still the consignor may make such a contract with the carrier as will make the carrier liable to him .’ and ‘Although, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the consignee is the proper person to bring the action against the carrier if they should be lost; yet the consignor may have a right to sue if he made a special contract with the carrier, and the carrier has agreed to take the goods from the consignor and to deliver them to any particular person at a particular place, which special contract supersedes the necessity of showing ownership in the goods; and by authority of the case of Davis v. James (5 Burr. 2680), and the latest case of Joseph v. Knox (3 Camp. 320) that the consignor is able to maintain an action, though the goods may be the goods of the consignee. . the authorities seem to me to establish that the consignor is entitled to maintain the action where there is a contract to deliver at a particular place, provided the risk appears in fact to be still on him.’
Lord Cottenham LC discussed whether the delivery to a carrier was delivery to the purchaser: ‘It is no doubt true as a general rule, that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee. This is so if, without designating the particular carrier, the consignee directs that the goods shall be sent by the ordinary conveyance: the delivery to the ordinary carrier is then a delivery to the consignee, and the consignee incurs all the risk of the carriage. And it is still more strongly so if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his special agent.’ and ‘But though the authorities all establish the general inference I have stated, yet that general inference is capable of being varied by the circumstances of any special arrangement between the parties, or of any particular mode of dealing between them.’

Judges:

Lord Cottenham LC

Citations:

(1839) 6 Cl and F 600, (1839) 3 Maclean and R 663, [1839] EngR 824, (1838,1839) 6 Cl and Fin 600, (1839) 7 ER 824

Links:

Commonlii

Jurisdiction:

Scotland

Citing:

Relied uponJoseph v Knox 1813
. .

Cited by:

CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
CitedCampbell v Tyson IHCS 1840
It was asked whether earlier cases established that the mere contracting for the safe carriage, if made by the consignor, entitled him to sue the carrier for damages, if the carrier failed to perform the duty undertaken by him under that contract. . .
AppliedDarlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
CitedScottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
CitedGard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 24 November 2022; Ref: scu.218898

Albacruz (Cargo Owners) v Albazero ‘The Albazero’: HL 1977

The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for breach of contract where he himself has suffered no loss by reason of the breach, there is an exception applicable to contracts of carriage: ‘that the consignor may recover substantial damages against the shipowner if there is privity of contract between him and the carrier for the carriage of goods; although, if the goods are not his property or at his risk, he will be accountable to the true owner for the proceeds of his judgment.’
Lord Diplock rationalised the rule in Lambert to fit into the pattern of English law by treating it: ‘as an application of the principle, accepted also in relation to policies of insurance upon goods, that in a commercial contract concerning goods where it is in the contemplation of the parties that the proprietary interests in the goods may be transferred from one owner to another after the contract has been entered into and before the breach which causes loss or damage to the goods, an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the goods before they are lost or damaged, and is entitled to recover by way of damages for breach of contract the actual loss sustained by those for whose benefit the contract is entered into.’
He explained the common law approach underlying section 32 in terms of bailment: ‘The question who stood in relation of bailor to carrier and so was entitled to sue him for the full value of the goods lost or the full amount of the damage could only arise where the consignor and consignee were different persons. In such a case the presumption was that the bailor was the person named as consignee and that in delivering possession of the goods to the carrier the consignor was acting and purporting to act as agent only for a designated principal – the consignee.’

Judges:

Lord Brandon, Lord Diplock

Citations:

[1977] AC 774, [1976] 3 All ER 129

Statutes:

Sale of Goods Act 1979 32

Jurisdiction:

England and Wales

Citing:

CitedDawes v Peck 1799
Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper. . .

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
CitedDarlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
CitedStora Enso Oyj v Port of Dundee OHCS 8-Mar-2006
Two consignments were destroyed by a fire in the defendaers warehouse. The defender asserted that the pursuer had no title to the goods because under the ‘CIP’ contract, title had passed already to the consignee.
Held: The 1979 Act provided . .
CitedScottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
CitedDevenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
CitedHelmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
CitedSS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Damages

Updated: 24 November 2022; Ref: scu.194553