Category: Transport

Farnworth And Another v Hyde: CExC 27 Feb 1865

A vessel was stranded and frozen up in the St Lawrence in the beginning of the winter; and, on the breaking up of the ice in the Spring, she was found to be in imminent peril, and, after several surveys, both ship and cargo were sold under circumstances which the jury found to constitute a reasonable necessity for an immediate sale, the expense of getting the ship afloat and repairing her, and of forwarding the cargo (timber) to its destination (Liverpool) being greater than their value when so respectively repaired and carried :-Held, that the underwriters on cargo were liable as for a total loss, without notice of abandonment ; the information of the loss and of the sale having both reached the assured at the same time.

[1865] EngR 274, (1865) 18 CB NS 835, (1865) 141 ER 674
Commonlii
England and Wales

Insurance, Transport

Updated: 18 December 2021; Ref: scu.281186

In the matter of Anglorom Trans (UK) Limited; Paramount Kitchens Ltd: CA 30 Jul 2004

Laddie J, after citing the Bryan Haulage case, explained the need to consider separately the positions of operator and transport manager: ‘If a company breaches the rules set down by the Act, for example if it or its directors are convicted of a relevant offence, it may lose its licence or be disqualified, but that does not mean that the transport manager will automatically be punished in like manner. Similarly, as noted above, the Act makes it clear that a company with a licence may be allowed to trade if its, or one of its, transport managers loses his good repute. In my view it is important to keep the responsibilities, liabilities and culpabilities of the company and its transport manager separate.’

Laddie J, Pill and Jonathan Parker LJJ
[2004] EWCA Civ 998
Bailii
England and Wales
Citing:
Approved – Bryan Haulage Limited v Vehicle Inspectorate (No 1) 2002
(Transport Tribunal) The tribunal set out the correct approach to findings involving revocation of an operator’s licence (or disqualification): ‘However, in order to take action under s. 26 or to make a finding of loss of good repute under s. 27 or . .

Cited by:
Cited – Muck It Ltd v Merritt and others; traffic Commissioner v Muck It Ltd and Others, Secretary of State for Transport intervening CA 15-Sep-2005
The applicant appealed revocation of its operator’s licence.
Held: The Commissioner had erred. When revoking an existing goods vehicle licence the burden was on the commissioner to establish that there was good cause to revoke the licence, and . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 18 December 2021; Ref: scu.231172

Crompton T/A David Crompton Haulage v Department of Transport North Western Area: CA 31 Jan 2003

The claimant challenged the revocation of his operator’s licence. At an earlier tribunal hearing concerning his licence, he had behaved in a loutish manner, and the revocation was based on that behaviour.
Held: The operator’s licence is a possession within art 1 of the Convention. The Act did not define what was considered to be ‘of good repute’. It was necessary to keep in proportion the loss of the licence, and the seriousness of the lost element of reputation. The tribunal had failed to keep that balance and the tribunal’s order was revoked.

Lord Justice Kennedy, Lord Justice Mantell, Lord Justice Mance
Times 07-Feb-2003, [2003] EWCA Civ 64, Times 07-Feb-2003, [2003] RTR 517
Bailii
Goods Vehicles (Licensing of Operators) Act 1995 27(1), European Convention on Human Rights
England and Wales
Cited by:
Cited – Muck It Ltd v Merritt and others; traffic Commissioner v Muck It Ltd and Others, Secretary of State for Transport intervening CA 15-Sep-2005
The applicant appealed revocation of its operator’s licence.
Held: The Commissioner had erred. When revoking an existing goods vehicle licence the burden was on the commissioner to establish that there was good cause to revoke the licence, and . .
Cited – Bryan Haulage Ltd v Vehicle Inspectorate (No2) [Appeal 217/2002] 1-Apr-2003
(date?) (Transport Tribunal) ‘In applying the Crompton case it seems to us that the traffic commissioners and the Tribunal have to reconsider their approach. In cases involving mandatory revocation it has been common for findings to have been made . .
Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .

Lists of cited by and citing cases may be incomplete.

Licensing, Transport, Human Rights

Updated: 18 December 2021; Ref: scu.178885

Great Yarmouth Port Company and Another, Regina (on The Application of) v Marine Management Organisation and Another: Admn 24 Mar 2014

Challenge to a decision of the Marine Management Organisation not to make a Harbour Revision Order in respect of the port of Great Yarmouth. The decision of the MMO was that it was not satisfied that the making of the order was desirable in the interests of the improvement, maintenance or management of the harbour in an efficient and economical manner.

Cranston J
[2014] EWHC 833 (Admin)
Bailii
Harbours Act 1964 14(2)(b)
England and Wales
Citing:
See Also – Regina (Great Yarmouth Port Company Limited) v Marine Management Organisation CA 2013
There is a presumption that the bespoke statutory regime will be deployed unless there are clear and powerful reasons which exceptionally justify judicial review being permitted. . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Transport

Updated: 11 December 2021; Ref: scu.523157

Gosse Millard v Canadian Government Merchant Marine: HL 1929

Viscount Sumner
[1929] AC 223
England and Wales
Citing:
At First Instance – Gosse Millard v Canadian Government Merchant Marine 1927
Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 11 December 2021; Ref: scu.670137

Britain Steamship Company Limited v The King and Others (“The Matiana”): CA 1919

The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy were actually attacked or if an attack were impending or immediately apprehended then from that moment the operations might well become warlike operations’.

Warrington LJ
[1919] 2 KB 670
England and Wales
Citing:
Appeal from – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . .

Cited by:
Appeal from – Britain 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 – Fogg 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 . .
Approved – Fogg and Another, Regina (on the Application of) v Secretary of State for Defence CA 5-Oct-2006
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Transport

Updated: 10 December 2021; Ref: scu.237697

London Borough of Southwark v Transport for London: ChD 1 Dec 2015

Appeal from arbitrations vesting certain highways.

Mann J
[2015] EWHC 3448 (Ch)
Bailii
England and Wales
Cited by:
Appeal from – London Borough of Southwark and Another v Transport for London CA 4-Aug-2017
The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies. . .

Lists of cited by and citing cases may be incomplete.

Transport, Land, Local Government

Updated: 10 December 2021; Ref: scu.556252

Ark Shipping Company Llc v Silverburn Shipping (IOM) Ltd: CA 10 Jul 2019

The Court was asked whether the term, contained in cl. 9A of the charterparty obliging Charterers to: ‘ . . .keep the Vessel with unexpired classification of the class indicated in Box 10 and with other required certificates in force at all times . . .’ was a condition (strictly so called) or an innominate term.

Lord Justice Gross,
Lord Justice Mccombe,
And,
Lord Justice Leggatt
[2019] EWCA Civ 1161, [2019] 2 Lloyds Rep 603
Bailii
England and Wales

Transport, Contract

Updated: 10 December 2021; Ref: scu.639500

London Borough of Southwark and Another v Transport for London: SC 5 Dec 2018

Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road , or the full extent of the land; all the airspace above and the subsoil below the surface of the road.
Held: The appeal was allowed. The land transferred was not the narrower definition.
‘Highway’ has no single meaning, but by default the wider meaning was to be used.
article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as former highway authority. That is, in my view, the true meaning of the phrase ‘the highway, in so far as it is vested in the former highway authority’. It follows that:
i) rights held by the Councils in the vertical plane of a highway as adjoining owner, for purposes other than highway purposes, do not pass under article 2(1)(a). This is because they are not held by the Council in its capacity as highway authority.
ii) rights originally acquired for purposes other than highway purposes, or appropriated to those other purposes by the operative date, do not pass under article 2(1)(a). This is so whether or not some non-highway structure has by then been constructed. If acquisition or appropriation for non-highway purposes has occurred by the operative date, it matters not that the relevant purpose has yet to be fulfilled, so that the relevant part of the vertical plane remains undeveloped.
iii) rights originally acquired for highway purposes in the vertical plane, for example by conveyance on compulsory acquisition for highway purposes, do pass under article 2(1)(a), even if they extend beyond the zone of ordinary use, provided that they have not, by the operative date, been appropriated to some non-highway use outside the zone of ordinary use.
iv) All these consequences, and in particular the first, flow from the true construction of article 2, rather than merely by way of TfL’s concession as recorded by Mann J.

Lady Hale, President, Lord Reed, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 63, [2019] 1 P and CR 14, [2019] RVR 49, [2018] 3 WLR 2059, [2019] PTSR 1, [2019] 2 All ER 271, UKSC 2017/0160
Bailii, Bailii Summary, SC, SC Summary, SC Summary Cvideo, SC 2018 1024 am Video, SC 2018 10 24 PM, SC 2018 10 25 am Video
GLA Roads and Side Roads (Transfer of Property etc) Order 2000
England and Wales
Citing:
Appeal from – London Borough of Southwark and Another v Transport for London CA 4-Aug-2017
The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies. . .
Cited – Powell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
Cited – Tunbridge Wells (Mayor Of) v Baird HL 4-May-1896
The Public Health Act 1875, which by s. 149 vests certain streets in the urban authority, does not vest the subsoil.
Therefore where a local Act authorized the urban authority to erect and maintain ‘in any street or public place, or on land . .
Cited – Coverdale v Charlton CA 2-Dec-1878
By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to . .
Cited – Rolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .
Cited – Tithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Cited – Farrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Cited – Finchley Electric Light Company v Finchley Urban Council CA 11-Feb-1903
Under s. 149 of the Public Health Act, 1875, which provides for the vesting in the urban authority of the streets within their district, the question how much above and below the surface of the street vests in the urban authority is determined by . .
Cited – Secretary of State for the Environment Transport and the Regions v Baylis (Gloucester) Ltd; Bennett Construction (UK) Ltd v Baylis (Gloucester) Ltd ChD 16-May-2000
Land once conveyed for the purposes of becoming a highway, became dedicated for that purpose even though no steps were ever taken for its use for that purpose. The registration of a company as proprietor by the Land Registry did not displace the . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government, Transport

Updated: 10 December 2021; Ref: scu.630951

The Captain Gregos: CA 1990

A cargo of oil had been carried under bills of lading incorporating the Hague-Visby Rules. There was an alleged theft of part of the cargo, and the question was whether article III rule 6 of the rules barred the claim on the ground that it had not been brought within one year.
Held: The court could not finally determine the issue because it was not clear whether the claimants were parties to the bills. The Act and the rules make clear that the bill of lading is the bedrock of the mandatory code. A bill of lading is a contractual document with well-known consequences when endorsed and transferred. The code would not treat the existence of a bill of lading with overriding importance if the code applied with equal force as between those who are not parties to the contract which the bill contains or evidences.
Otherwise: Compania Portorafti Commerciale SA v Ultramara Panama Inc (The Captain Gregos)

Bingham LJ
[1990] 1 Lloyds Rep 310, [1990] 3 All ER 967
Carriage of Goods by Sea Act 1971 1(4), Hague-Visby Rules I(b) X
England and Wales
Cited by:
Cited – J 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 . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 10 December 2021; Ref: scu.181892

The “RUAPEHU”: CA 1927

The plaintiffs owners of a drydock thought to limit their liability under the Merchant Seamen’s (Liability of Ship Owners and others) Act 1900 section 2 in respect of damage caused by a fire which broke out on the defendant’s vessel going to the negligence of the plaintiffs servants while the vessel was being repaired by them in the dry dock.
Held: While some limitations must be put upon the general language of the sections which are applied in its strict literal sense would lead to an absurdity limitation to be put was not in respect of the nature of the act done but in respect of area that is the damage must be in some way connected with the ownership of the dock.
Atkin LJ assimilated the law applied to carriers in these cases to the principles applicable generally to bailees, which he summarised as follows: ‘If this were a pure bailment, a delivery of a chattel to a bailee entrusted with the chattel to execute repairs on it and then redeliver it to the owner, I apprehend that the bailee would be under the obligation to exercise reasonable care and skill in preserving the safety of the chattel. If he failed to deliver the chattel at all the onus would be upon him to show that the non-delivery was not due to absence of care and skill on his part . . Moreover, if he redelivered the chattel in a damaged condition . . the onus is on the bailee to show that the damage was not due to the absence of reasonable care and skill on his part . . This he may do by showing that he took all reasonable precautions, but if he has to admit or is convicted of some act of negligence then the rule necessarily requires him to show that the loss was not caused by that act of negligence.’

Atkin LJ
[1927] P 47, 96 LJP 18, 136 LT 146, 42 LTR 708, 17 Asp MLC 138, 24 Lloyd LR 476
Merchant Seamen’s (Liability of Ship Owners and others) Act 1900 2
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 06 December 2021; Ref: scu.670133

NAVIG8 Chemicals Pool Inc v Aeturnum Energy International Pte Ltd: ComC 23 Nov 2021

Trial of the Claimant’s claims arising under a letter of indemnity (‘LOI’) given by the Defendant voyage charterer to the Claimant disponent owner in respect of the discharge of a cargo of light naptha in Singapore without production of the bills of lading in February 2020. The Claimant claims declaratory relief and a final mandatory injunction / order for specific performance in respect of the Defendant’s obligations under the LOI. The Claimant further claims an indemnity in respect of the losses it incurs as a result of complying with the Defendant’s instructions as well as damages for breach of the LOI.

Christopher Hancock QC Sitting as a Judge of the High Court
[2021] EWHC 3132 (Comm)
Bailii
England and Wales

Contract, Transport

Updated: 06 December 2021; Ref: scu.670107

Nelson v Deutsche Lufthansa AG, International Air Transport Association v Civil Aviation Authority: ECJ 30 Nov 2011

Order – joinder of cases

[2011] EUECJ C-581/10, C-581/10
Bailii
Cited by:
Order – Nelson v Deutsche Lufthansa AG, International Air Transport Association v Civil Aviation Authority ECJ 23-Oct-2012
ECJ Air transport – Regulation (EC) No 261/2004 – Articles 5 to 7 – Montreal Convention – Articles 19 and 29 – Right to compensation in the event of delay of flights – Compatibility . .

Lists of cited by and citing cases may be incomplete.

European, Transport

Updated: 04 December 2021; Ref: scu.526743

Jet2Com Ltd v Huzar: CA 11 Jun 2014

The claimant passenger complained that he had not been compensated as required when his flight was delayed. The airline now appealed against a decision that a mechanical fault in the aircraft did not amount to exceptional circumstances so as to excuse the airline form paying compensation.
Held: The appeal failed. There was no explicit definition of ‘exceptional circumstances’ within the regulation, but some assistance was given. Furthermore, the European Court had in the case of Wallentin-Hermann stated that mechanical failures were part of the business of a carrier for which it provided, for example routines of maintenance.

Laws, Elias, Gloster LJJ
[2014] EWCA Civ 791
Bailii
Regulation (EC) 261/2004
England and Wales
Citing:
Cited – Sturgeon and Others v Condor Flugdienst GmbH ECJ 2-Jul-2009
Opinion (Joined cases) – Air transport – Distinction between the notions of ‘delay’ and ‘cancellation’ . .
Cited – Finnair Oyj v Lassooy ECJ 4-Oct-2012
ECJ Air transport – Regulation (EC) No 261/2004 – Compensation for passengers in the event of denied boarding – Concept of ‘denied boarding’ – Exclusion from characterisation as ‘denied boarding’ – Cancellation . .
Applied – Wallentin-Hermann v Alitalia Linee Aeree Italiane SpA ECJ 22-Dec-2008
ECJ Carriage by air Regulation (EC) No 261/2004 Article 5 – Compensation and assistance to passengers in the event of cancellation of flights Exemption from the obligation to pay compensation Cancellation due to . .

Lists of cited by and citing cases may be incomplete.

Transport, Consumer, European

Updated: 04 December 2021; Ref: scu.526424

Commission of The European Communities v Grand Duchy of Luxemburg: ECJ 1 Apr 2008

ECJ (Judgment Of The Court (Seventh Chamber)) Failure of a Member State to fulfil obligations – Directive 2004/36/EC – Safety of third-country aircraft using Community airports – Failure to transpose within the prescribed period

C-417/07, [2008] EUECJ C-417/07
Bailii
Directive 2004/36/EC

European, Transport

Updated: 04 December 2021; Ref: scu.526315

European Commission v Hellenic Republic: ECJ 10 Dec 2009

ECJ (Judgment Of The Court (Sixth Chamber)) Failure of a Member State to fulfil obligations – Article 39 EC – Employment in the public service – Captain and officer (chief mate) on vessels – Conferment of powers of public authority on board – Requirement that they be nationals of the Member State whose flag the vessels fly

C-460/08, [2009] EUECJ C-460/08
Bailii
Article 39 EC

European, Transport

Updated: 04 December 2021; Ref: scu.526180

F C Bradley and Sons Ltd v Federal Steam Navigation Co Ltd: 1927

Viscount Sumner
(1927) 27 Ll L Rep 395
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 03 December 2021; Ref: scu.670140

NYK Bulkship (Atlantic) NV v Cargill International SA: CA 8 Apr 2014

The court was asked as to ‘the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the allocation of risk of delay as between owners and time charterers. ‘

Gross, Gloster LJJ, Sir Stanley Burnton
[2014] EWCA Civ 403, [2014] 2 Lloyd’s Rep 103
Bailii
England and Wales
Citing:
Cited – Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (‘Doric Pride’) CA 25-Jan-2006
The court considered the relationship between express an implied warranties.
Held: Under a time charterparty, hire continues to run unless the charterer can bring himself within the plain words of an off-hire provision; the risk of delay is . .
Cited – Mediolanum Shipping Co v Japan Lines Ltd (‘The Mediolanum’) CA 1984
The charterers had contracted to provide and pay for fuel. They ordered her to a safe port but she was directed to an unsafe place in that port by the refinery with whom the charterer had contracted for the supply of bunkers. The court was asked to . .
At ComC – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . .
Cited – The ‘Goodpal’ 2000
The court dealt with the apportionment of claims under the Interclub NYPE Agreement . .

Cited by:
At CA – NYK Bulkship (Atlantic) Nv v Cargill International Sa SC 11-May-2016
The ship ‘Global Santosh’ had been arrested as a side issue in a dispute as to its cargo between its anticipated receiver and a sub-sub charterer.
Held: (Lord Clarke dissenting) The appeal succeeded. Any responsibility of Cargill under the . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Agency

Updated: 02 December 2021; Ref: scu.523625

CTP v Regione Campania: ECJ 3 Apr 2014

ECJ Reference for a preliminary ruling – Regulation (EC) No 1191/69 – Public passenger transport services – Article 4 – Application for termination of public service obligation – Article 6 – Right to compensation in respect of the financial burdens resulting from the performance of a public service obligation

C-516/12, [2014] EUECJ C-516/12
Bailii
Regulation (EC) No 1191/69 4

European, Transport

Updated: 02 December 2021; Ref: scu.523559

Karuse AS v Politsei-ja Piirivalveamet: ECJ 13 Mar 2014

ECJ Road transport – Regulation (EC) No 561/2006 – Obligation to use a tachograph – Derogation for vehicles used in connection with road maintenance – Vehicle transporting gravel from the loading site to the road maintenance works site

A. Borg Barthet, P
ECLI:EU:C:2014:142, [2014] EUECJ C-222/12
Bailii
Regulation (EC) No 561/2006
European

Transport

Updated: 01 December 2021; Ref: scu.522485

Paterson Steamships Limited v Canadian Co-Operative Wheat Producers, Limited: PC 26 Jul 1934

(Quebec)

Lord Wright
[1934] UKPC 56, (1934) 49 Ll L Rep 421, [1934] AC 538
Bailii
Canada
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.470062

Great China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The “BUNGA SEROJA”): 22 Oct 1998

High Court of Australia – Shipping – Sea carriage of goods – Bill of lading – Hague Rules – Damage to cargo – Cargo properly stowed – Vessel seaworthy and fit in all respects for voyage – Bad weather conditions foreseeable – Perils of the sea – MV Bunga Seroja.

Gaudron, Mchugh, Gummow, Kirby, Hayne and Callinan Jj
[1999] 1 Lloyd’s Rep 512, [1998] HCA 65
Austlii
Australia
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.670141

Cosco 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.
Held: The appeal failed. ‘Average accident’ need not include physical damage, but nor could seizure by pirates amount to an accident. As a matter of indelible impression seizure by pirates is a ‘classic example’ of a totally extraneous cause.

Gross J
[2010] EWHC 1340 (Comm), [2010] 1 CLC 919, [2011] 1 Lloyd’s Rep 187
Bailii
England and Wales
Citing:
See Also – Masefield Ag v Amlin Corporate Member Ltd; The Bunga Melati Dua ComC 18-Feb-2010
. .
Not Followed – The Mareva AS 1977
The wording ‘average accident’ in the policy: ‘merely means an accident which causes damage.’ . .
Cited – 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 . .
Distinguished – The Laconian Confidence 1997
Charterers appealed against the decision of the arbitrator on the meaning of the phrase ‘any other cause’. The performance of the contract had been interrupted by the intervention of the authorities in Chittagong.
Held: The appeal failed. The . .
Cited – The Alfred Trigon 1981
The court considered the wording, in the context of a second-hand ship sale and purchase market, ‘average damage’.
Held: ‘Average’ here could not mean ‘damage’ simpliciter and was understandably construed to mean a particular kind of damage – . .
Cited – Kelman v Livanos 1955
. .
Cited – Chandris v Isbrandtsen-Moller Co Inc CA 1950
Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, . .
Cited – Thomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
Cited – Royal Greek Government v Minister of Transport CA 2-Jan-1949
The charterers had ordered the vessel to sail but her crew refused to do so, except in convoy, because of the war. A dispute arose as to whether, the charterers’ order to sail having been disobeyed, the vessel was off-hire.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Insurance

Updated: 01 December 2021; Ref: scu.416635

Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa: SC 5 Dec 2018

The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment covered the entire carriage.
Such beans were commonly carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. In unventilated containers traveling from warmer to cooler climates, they were likely to emit moisture and to prevent moisture damage, it was common to line the containers with an absorbent material such as Kraft paper.
Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (‘less than full container load/full container load’) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them.
Condensation damage was found in 18 out of the 20 containers. The cargo claimed against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to ‘properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried’. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded ‘inherent vice’ on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carrier’s negligence.
The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial
practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners.
The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) ‘inherent vice’ exception?
Held: The appeal succeeded. The legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules.
Held: The appeal succeeded: ‘ the carrier had the legal burden of proving that he took due care to protect the goods from damage, including due care to protect the cargo from damage arising from inherent characteristics such as its hygroscopic character. I would reinstate the deputy judge’s conclusions about the practice of the trade in the lining of unventilated containers for the carriage of bagged coffee and the absence of evidence that the containers were dressed with more than one layer of lining paper. In the absence of evidence about the weight of the paper employed, it must follow that the carrier has failed to prove that the containers were properly dressed.’

Lord Reed, Deputy President, Lord Wilson, Lord Sumption, Lord Hodge, Lord Kitchin
[2018] UKSC 61, [2018] 3 WLR 2087, [2019] 1 All ER (Comm) 397, [2019] 1 Lloyd’s Rep 21, [2018] WLR(D) 779, [2019] AC 358, [2019] 2 All ER 81, [2018] UKSC 61
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Oct 3 am Video, SC 2018 Oct 3 pm Videos, SC 4 Oct 2018 pm Video
England and Wales
Citing:
Cited – Coggs v Bernard ER 235 1738
A pawnee of any pawn or pledge hath a property in it ; for the thing deposited is a security to him, that he shall be repaid the money lent on it. Arid if things will riot be the worse, as jewels, and co he may use them ; but then it must be at his . .
At ComC – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A Csav) ComC 5-Mar-2015
Coffee beans damaged in transit – onus of proof of liability in negligence . .
Cited – Reeve v Palmer 25-Jun-1858
It is no answer for an attorney, when sued in detinue for a deed which has been intrusted to him by a client, to say simply that he has lost it.
Cockburn CJ said: ‘The jury have found that he lost it: and I am of opinion that that must be taken . .
Cited – Morison, Pollexfen and Blair v Walton 10-May-1909
. .
Cited – Dollar v Greenfield HL 19-May-1905
The plaintiff, a job master, for several years let carriages and Horses to the defendant by the year and let to the defendant a pair of horses, which were quiet in harness and satisfactory to the defendant’s coachman and stop the horses were kept in . .
Cited – Joseph Travers and Sons Ltd v Cooper CA 1915
Goods were loaded onto a barge from a ship for delivery at the barge owners wharf in the Thames under a contract, which exempted the barge owner from liability ‘for any damage to goods how’s the weather caused which can be covered by insurance.’ . .
Cited – Gosse Millard v Canadian Government Merchant Marine 1927
Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable . .
Cited – The ‘RUAPEHU’ CA 1927
The plaintiffs owners of a drydock thought to limit their liability under the Merchant Seamen’s (Liability of Ship Owners and others) Act 1900 section 2 in respect of damage caused by a fire which broke out on the defendant’s vessel going to the . .
Cited – British Road Services Ltd v Arthur V Crutchley and Co Ltd (No 1) CA 1968
There was a theft from a warehouse of a valuable lorry load of high value, namely, whisky. It was held on appeal that the defendants’ system of protection was not adequate in relation to the special risks involved and the value of the chattel . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A CSAV) CA 10-Nov-2016
Claim for damages to cargo of coffee beans – onus of proof of liability for negligence . .
Cited – Aktieselskabet de Danske Sukkerfabrikker v Bajamar Compania Naviera SA (The ‘TORENIA’) 1983
D’s vessel was chartered to carry a cargo of Cuban sugar in bulk. She loaded some 10000 tonnes at Guayabal. Two bills of lading were issued to the shippers. On April 4th 1979 the vessel set sail for Denmark. On April 13th she encountered heavy . .
Cited – F C Bradley and Sons Ltd v Federal Steam Navigation Co Ltd 1927
. .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Great China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The ‘BUNGA SEROJA’) 22-Oct-1998
High Court of Australia – Shipping – Sea carriage of goods – Bill of lading – Hague Rules – Damage to cargo – Cargo properly stowed – Vessel seaworthy and fit in all respects for voyage – Bad weather conditions foreseeable – Perils of the sea – MV . .
Cited – Silver v Ocean Steamship Co Ltd CA 1930
The Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage. . .
Cited – Paterson Steamships Limited v Canadian Co-Operative Wheat Producers, Limited PC 26-Jul-1934
(Quebec) . .
Cited – GH Renton and Co Ltd v Palmyra Trading Corporation of Panama HL 1957
An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in . .
Cited – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .
Cited – J Spurling Ltd v Bradshaw CA 26-Mar-1956
Denning LJ said: ‘ . . A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof. In the case of non-delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That . .
Cited – Notara v Henderson QBD 16-Feb-1872
A cargo of beans was delivered damaged by seawater. The beans had been wetted when the vessel was involved in a collision. She put into Liverpool for repairs, and it was proved that it would have been reasonable for the master temporarily to . .
Cited – Thomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
Cited – Albacora SRL v Westcott and Laurence Line Ltd HL 1966
The case concerned damage to fish due to previously dormant bacteria being activated by rise in temperature on the voyage. The issue was whether a cargo of fish was capable of withstanding carriage in unrefrigerated spaces, that being the service . .
Not good law – The Glendarroch CA 9-Feb-1894
The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the . .
Cited – Nugent v Smith CA 29-May-1876
A mare carried in the hold of the ship, died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself.
The defendant, a common carrier by sea from London . .

Lists of cited by and citing cases may be incomplete.

Transport, Evidence, Negligence

Updated: 01 December 2021; Ref: scu.630953

GH Renton and Co Ltd v Palmyra Trading Corporation of Panama: HL 1957

An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in my opinion, directed and only directed to the manner in which the obligations undertaken are to be carried out. Subject to the later provisions, it prohibits the shipowner from contracting out of liability for doing what he undertakes properly and with care. This question was considered by Devlin J in Pyrene Co Ltd v Scindia Navigation Company Limited in relation to the words ‘shall properly and carefully load’. I agree with his statement, which has already been cited.’

Lord Morton of Henryton, Lord Cohen and Lord Somervell of Harrow.
[1957] AC 149
Hague-Visby Rules III r8
England and Wales
Citing:
Approved – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .

Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.219877

Pyrene Co Ltd v Scindia Navigation Co Ltd: QBD 1954

The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to reallocate responsibility for the functions described in that rule: ‘The phrase ‘shall properly and carefully load’ may mean that the carrier shall load and that he shall do it properly and carefully: or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the Rules. Their object, as it is put, I think, correctly in Carver’s Carriage of Goods by Sea, 9th ed (1952), p 186, is to define not the scope of the contract service but the terms on which that service is to be performed. The extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port and the nature of the cargo. It is difficult to believe that the Rules were intended to impose a universal rigidity in this respect, or to deny freedom of contract to the carrier. The carrier is practically bound to play some part in the loading and discharging, so that both operations are naturally included in those covered by the contract of carriage. But I see no reason why the Rules should not leave the parties free to determine by their own contract the part which each has to play. On this view the whole contract of carriage is subject to the Rules, but the extent to which loading and discharging are brought within the carrier’s obligations is left to the parties themselves to decide.’

Devlin J
[1954] 2 QB 402
Hague-Visby Rules III r2
England and Wales
Cited by:
Cited – Evergreen Marine Corp v Aldgate Warehouse (Wholesale) Ltd ComC 28-Mar-2003
The claimant sought payment for freight charges and demurrage. Long standing arrangements meant that the defendant was not named as shipper.
Held: The f.o.b. contract has become a flexible instrument and it does not necessarily follow that the . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Approved – GH Renton and Co Ltd v Palmyra Trading Corporation of Panama HL 1957
An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in . .
Applied – The Ciechocinek CA 1976
. .
Applied – The Arawa 1977
. .
Applied – The Filikos 1981
. .
Applied – The Strathnewton CA 1983
. .
Applied – The Panaghia Tinnou 1986
. .
Applied – The Holstencruiser 1992
. .
Applied – The Coral CA 1993
. .
Cited – J 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 . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.180307

Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’): HL 13 Mar 2003

Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific terms added prevailed over the standard terms printed on the bill of lading. The bill was drafted to express a contract between the shipper and the owner of the vessel. Did the terms protect the shipowner from liability to the cargo owners? Clause 5 could not be construed as a covenant not to sue. The second part did not restrict the operation of the first. The cause of action was perfected not on each occasion when the damage to the cargo worsened, but was complete as soon as more than insignificant damage had occurred. At that time only one of the parties had established ownership. ‘the court should not interpolate words into a written instrument, of whatever nature, unless it is clear both that words have been omitted and what those omitted words were’ Where there is a conflict between printed and handwritten clauses, the handwritten clauses will usually prevail. (Lord Steyn dissenting) If a party, otherwise liable, is to exclude or limit his liability or to rely on an exemption, he must do so in clear words; unclear words do not suffice; any ambiguity or lack of clarity must be resolved against that party.
Otherwise: Owners of cargo lately laden on board the ship or vessel ‘Starsin’ and others (Original Respondents and Cross-appellants) v. Owners and/or demise charterers of the ship or vessel ‘Starsin’ (Original Appellants and Cross-respondents) and two other actions

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett
[2003] UKHL 12, Times 17-Mar-2003, Gazette 15-May-2003, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyds Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571
House of Lords, Bailii
Carriage of Goods by Sea Act 1971, Hague-Visby Rules 5
England and Wales
Citing:
Appeal from – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ CA 23-Jan-2001
. .
Cited – Glynn v Margetson and Co HL 1893
A printed form of bill of lading contained general words of obligation referring to the goods being shipped ‘in and upon the .. Zena, now lying in the port of Malaga, and bound for Liverpool’. Those words were followed by printed words intended ‘to . .
Cited – Universal Steam Navigation Company Ltd v James McKelvie and Company HL 1923
If there was inconsistency between a term added to a pre-printed form and general descriptions elsewhere in the text, the former should be regarded as the ‘dominating factor’ and as of ‘preponderant importance’. . .
Cited – Hamilton v Mendes 8-Jun-1761
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case. . .
Cited – Simond v Boydell 1779
To seek perfect consistency and economy of draftsmanship in a complex form of contract which has evolved over many years is to pursue a chimera. . .
Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Appeal from – Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) CA 23-Jan-2001
Cargo had been negligently stowed on a ship so that condensation caused damage during the subsequent voyage. The claimant only acquired a title to the cargo after the voyage had commenced. The defendants contended that no duty of care could be owed . .
Cited – Adler v Dickson; ‘the Himalaya’ CA 29-Oct-1954
The defendants were the master and boatswain of the P and O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P and O which . .
At First Instance – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ ComC 2000
. .

Cited by:
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Cited – Dairy Containers Ltd v Tasman Orient Line Cv PC 20-May-2004
PC (New Zealand) The appeal concerned the correct interpretation of a damage limitation clause in a contract for the carriage of goods by sea.
Held: Clause 6(B)(b)(i) must be construed in the context of the . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – J 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 . .
Cited – Telewest Communications Plc Telewest (Publications) Limited v Commissioners of Customs and Excise CA 10-Feb-2005
The taxpayers sold cable services which were liable to VAT through 28 subsidiaries, and supplied by a third party as part of the same service a listings magazine. They sought exemption from VAT for that part of the consideration related to the . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Golden 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 . .
Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Leading Case

Updated: 01 December 2021; Ref: scu.179802

Silver v Ocean Steamship Co Ltd: CA 1930

The Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage.

Scrutton LJ
[1930] 1 KB 416
England and Wales
Citing:
Applied – Gosse Millard v Canadian Government Merchant Marine 1927
Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable . .

Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.670138

Nugent v Smith: CA 29 May 1876

A mare carried in the hold of the ship, died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself.
The defendant, a common carrier by sea from London to Aberdeen, received from the plaintiff a mare to be carried to Aberdeen for hire. In the course of the voyage the ship encountered rough weather, and the mare received such injuries that she died. The jury found that the injuries were caused partly by more than ordinary bad weather, and partly by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant’s servants.
Held: Reversing the decision of the Court below, that the defendant was not
liable for the death of the mare.
The carrier does not insure against the irresistible act of nature, nor against defects in the thing carried itself; and if he can shew that either the act of nature or the defect of the thing itself, or both taken together, formed the sole direct and irresistible cause of the loss, he is discharged. In order to shew that the cause of the loss was irresistible it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but it is sufficient to prove that by no reasonable precaution under the circumstances could it have been prevented.
Cockburn CJ described inherent vice as the rule that: ‘the carrier is not liable where the thing carried perishes or sustains damage, without any fault of his , by reason of some quality inherent in its nature . .’
Mellish LJ thought that: ‘ if the jury had found that the injury was caused solely by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence on the part of the defendant’s servants , I am of opinion that a plea that the injury to the mare was caused by the vice of the mare herself would have been proved.’
Mellish LJ said that in order to be an ‘act of God’ an event must be irresistible.

Cockburn CJ, Mellish LJ
(1876) 1 CPD 423, 45 LJCP 19, [1876] UKLawRpCP 52, (1875-1876) 1 CPD 423
Commonlii
England and Wales
Cited by:
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Agency

Updated: 01 December 2021; Ref: scu.188035

The Glendarroch: CA 9 Feb 1894

The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the vessel, and the defendants claimed exemption from liability on the ground that the loss was occasioned by perils of the sea; but the President (Sir F. H. Jeune) ruled that in order to excuse themselves for the damage to the goods it lay on the defendants to shew, not only a peril of the sea, but a peril of the sea not occasioned by their negligence.
Held: that as the loss apparently fell within the exception, the burden of shewing that the defendants were not entitled to the benefit of the exception, by reason of negligence, lay upon the plaintiffs.

Lord Esher Mr, Lopes and Davey, LJ j
[1894] P 226, [1894] UKLawRpPro 9
Commonlii
England and Wales
Cited by:
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Not good law – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 01 December 2021; Ref: scu.238571

Thomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’: HL 14 Jul 1887

A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it was induced, even if it were by the negligence of those navigating the vessel.’ A shipowner owes the bill of lading holder a bailee’s duty of care and accordingly, construing the bill of lading contract as a whole, the shipowner could not rely on the ‘perils of the sea’ exception to oust his duty of care.
the words in a cancellation clause to ‘perils or danger and accidents of the sea’ bear the same meaning, as a matter of construction, in a bill of lading or contract of carriage as in an insurance policy.
The words ‘perils of the sea’: ‘do not protect, for example, against that natural and inevitable action of the wind and waves, which results in what may be described as wear and tear. There must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen.’

Lord Herschell, Lord Bramwell
(1887) 12 App Cas 503, [1887] UKLawRpAC 28
Commonlii
England and Wales
Cited by:
Cited – Cosco 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.
Cited – Global 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: . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 01 December 2021; Ref: scu.416712

Albacora SRL v Westcott and Laurence Line Ltd: HL 1966

The case concerned damage to fish due to previously dormant bacteria being activated by rise in temperature on the voyage. The issue was whether a cargo of fish was capable of withstanding carriage in unrefrigerated spaces, that being the service stipulated in that case.
Held: Lord Reid said: ‘Article IV, rule 2(m), provides that the carrier shall not be responsible for damage arising from ‘inherent defect, quality, or vice of the goods’. A number of authorities were cited and perhaps the most concise statement is that of Gorell Barnes J in The ‘Barcore’ [1896] P 294: ‘This cargo was not damaged by reason of the shipowner committing a breach of contract, or omitting to do something which he ought to have done, but it was deteriorated in condition by its own want of power to bear the ordinary transit in a ship.’ By ‘the ordinary transit’ I would understand the kind of transit which the contract requires the carrier to afford. I agree with the Lord President when he says: ‘rule 2(m) is in my opinion intended to give effect to the well-settled rule in our law that if an article is unfitted owing to some inherent defect or vice for the voyage which is provided for in the contract, then the carrier may escape liability when damage results from the activation of that inherent vice during the voyage.’ It follows that whether there is inherent defect or vice must depend on the kind of transit required by the contract. If this contract had required refrigeration there would have been no inherent vice. But as it did not, there was inherent vice because the goods could not stand the treatment which the contract authorised or required.’
Lord Reid said: ‘the appellants argued that the case now made by the respondents contradicts their pleadings and that they cannot be allowed to succeed on a ground not covered by their pleadings. I think that at some stage both parties have completely departed from their pleadings . . The notes of evidence were not reproduced because in their reclaiming motion the respondents were content to rely on the Lord Ordinary’s findings of fact, and the appellants acquiesced in this. So we do not know at what stage or in what manner evidence to support the new contentions of the parties was introduced. But there is no indication that either party objected timeously to its introduction, and I find nothing to suggest that the appellant suffered prejudice by reason of the fact that the case was allowed to take the course it did. In my judgment it is much too late to raise an objection of this kind.’
Lord Guest said: ‘The respondents aver that the inherent vice was in the salt, but the First Division have held upon the Lord Ordinary’s findings the inherent vice to be in the fish. It is, however, in my view far too late in the day for the appellants to rely upon such a technicality. After the evidence had been led there was really no dispute as to the facts. Which party first brought out the critical fact that the bacteria were in the fish is, in the absence of the notes of evidence, not clear. If a party wishes to challenge the relevancy of evidence as not being in accordance with the record, then the objection should be taken at the time. The evidence in this case was apparently led without objection, and the First Division were, in my opinion, well entitled to reach the conclusion which they did…’

Lord Guest, Lord Reid, Lord Pearce
1966 SC (HL) 19
Scotland
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.670142

Notara v Henderson: QBD 16 Feb 1872

A cargo of beans was delivered damaged by seawater. The beans had been wetted when the vessel was involved in a collision. She put into Liverpool for repairs, and it was proved that it would have been reasonable for the master temporarily to discharge the beans there, so that they could be spread out and dried in a warehouse, and then reloaded before the vessel proceeded on her voyage. If that had been done, part of the damage would have been avoided. The bill of lading excepted ‘loss or damage arising from . . accidents of the seas’. The court held that the exception did not protect the carrier from liability for that part of the damage which could have been avoided by the exercise of due care.
Held: There is a duty on the master of a ship, as representing the shipowner, to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on hoard the ship during the ordinary incidents of the voyage, but also in taking active measures, where reasonably practicable under all the circumstances, to check and arrest the loss’ or deterioration resulting from accidents, for the necessary and immediate consequences of which the shipowner is not liable by reason of exceptions in the bill of lading. And for neglect of this duty by the master the shipowner is responsible to the shipper.
Willes J said: ‘In the result it appears to us that the duty of the master, in this respect, is . . to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking reasonable measures to check and arrest their loss, destruction, or deterioration, by reason of accidents, for the necessary effects of which there is, by reason of the exception in the bill of lading, no original liability. . . [T]he exemption is from liability for loss which could not have been avoided by reasonable care, skill, and diligence, and that it is inapplicable to the case of a loss arising from the want of such care, and the sacrifice of the cargo by reason thereof, which is the subject-matter of the present complaint.’

Willes J
(1871-1872) LR 7 QB 225, [1872] UKLawRpKQB 19
Commonlii
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 01 December 2021; Ref: scu.670143

In re Steamship “Prinz Adalber” Hamburg-Amerika Line v Her Majesty’s Procurator Genera and similar: PC 4 Feb 1918

[1918] UKPC 9
Bailii
England and Wales
Citing:
See Also – Admiralty Commissioners v Steamship Amerika (Owners), The Amerika PC 13-Aug-1917
The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine: . .

Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 30 November 2021; Ref: scu.423388

Admiralty Commissioners v Steamship Amerika (Owners), The Amerika: PC 13 Aug 1917

The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine:

Parker, Wrenbury LL
[1916-17] All ER Rep 177, [1917] AC 38, [1917] UKPC 71
Bailii
England and Wales
Citing:
Approved – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .

Cited by:
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
See Also – In re Steamship ‘Prinz Adalber’ Hamburg-Amerika Line v Her Majesty’s Procurator Genera and similar PC 4-Feb-1918
. .
Cited – Oliver v Ashman CA 1961
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
Pearce LJ summarised the authorities: ‘The Law Reform Miscellaneous Provisions Act . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 30 November 2021; Ref: scu.237519

Steamship ‘Beechgrove’ Co, Ltd v Aktieselskabet ‘Fjord’ of Christiania: HL 18 Oct 1915

The Merchant Shipping Act 1894, sec. 633, enacts-‘An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law.’
The Clyde Navigation (Consolidation) Act 1858 defines the western limit of the river Clyde as a line drawn from Newark Castle to the mouth of the Cardross Burn-that is, about 4 miles east or up the river from Greenock-and it makes it unlawful for anyone to navigate without a pilot a vessel in any part of the river as defined by the Act. It also confers power on a pilot board to make bye-laws regulating the pilotage in the river and in the Firth. By these bye-laws Greenock is the place for taking up and dropping river pilots, and when on board a pilot is to be in control of the vessel.
Held ( rev. judgment of the First Division) that there is no exemption from liability between Greenock and the line between Newark Castle and the mouth of the Cardross Burn, either under the Merchant Shipping Act 1894, or ( dub. Lord Dunedin) at common law.

The Lord Chancellor (Buckmaster), Lord Shaw, Lord Parmoor, and Lord Wrenbury
[1915] UKHL 13, 53 SLR 13
Bailii
Scotland

Transport

Updated: 30 November 2021; Ref: scu.620700

Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A CSAV): CA 10 Nov 2016

Claim for damages to cargo of coffee beans – onus of proof of liability for negligence

Gloster , King LJJ, Flaux J
[2016] EWCA Civ 1103, [2016] WLR(D) 589
Bailii, WLRD
England and Wales
Citing:
Appeal from – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A Csav) ComC 5-Mar-2015
Coffee beans damaged in transit – onus of proof of liability in negligence . .

Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 30 November 2021; Ref: scu.571232

Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A Csav): ComC 5 Mar 2015

Coffee beans damaged in transit – onus of proof of liability in negligence

David Donaldson QC,
Sitting as a Deputy High Court Judge
[2015] EWHC 516 (Comm), [2016] 1 All ER (Comm) 657, [2015] 1 CLC 294, [2015] CN 461, [2015] 1 Lloyds Rep 639
Bailii
England and Wales
Cited by:
Appeal from – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A CSAV) CA 10-Nov-2016
Claim for damages to cargo of coffee beans – onus of proof of liability for negligence . .
At ComC – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Negligence

Updated: 30 November 2021; Ref: scu.543896

Gosse Millard v Canadian Government Merchant Marine: 1927

Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable to the obligations of common carriers, but they were entitled to the utmost freedom to restrict and limit their liabilities, which they did by elaborate and mostly illegible exceptions and conditions.’ He then said that under the rules these liabilities rights and immunities were precisely determined and, after quoting article III rule 2, said: ‘The word ‘discharge’ is used, I think, in place of the word ‘deliver’, because the period of responsibility to which the Act and Rules apply (article I (e)) ends when they are discharged from the ship.’
‘I do not think that the terms of article III put the preliminary onus on the owner of the goods to give affirmative evidence that the carrier has been negligent. It is enough if the owner of the goods proves either that the goods have not been delivered, or have been delivered damaged. The carrier is a bailee and it is for him to show that he has taken reasonable care of the goods while they have been in his custody (which includes the custody of his servants or agents on his behalf) and to bring himself, if there be loss or damage, within the specified immunities. It is, I think, the general rule applicable in English law to the position of bailees that the bailee is bound to restore the subject of the bailment in the same condition as that in which he received it, and it is for him to explain or to offer valid excuse if he has not done so. It is for him to prove that reasonable care had been exercised.’

Wright J
[1927] 2 KB 432
Carriage of Goods by Sea Act 1924
England and Wales
Cited by:
At First Instance – Gosse Millard v Canadian Government Merchant Marine HL 1929
. .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .
Applied – Silver v Ocean Steamship Co Ltd CA 1930
The Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage. . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 30 November 2021; Ref: scu.670136

British Road Services Ltd v Arthur V Crutchley and Co Ltd (No 1): CA 1968

There was a theft from a warehouse of a valuable lorry load of high value, namely, whisky. It was held on appeal that the defendants’ system of protection was not adequate in relation to the special risks involved and the value of the chattel bailed, and that even though they had contracted with competent third parties for the security of the warehouse during the hours of darkness the defendants had nevertheless failed to discharge the burden of proof that the loss was not due to any negligence on their part.
Otherwise: British Road Services Ltd v A Crutchley and Co Ltd and Factory Guards Ltd (Third Party)

Sachs LJ
[1968] 1 All ER 811
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport, Negligence, Agency

Updated: 30 November 2021; Ref: scu.670134

Dollar v Greenfield: HL 19 May 1905

The plaintiff, a job master, for several years let carriages and Horses to the defendant by the year and let to the defendant a pair of horses, which were quiet in harness and satisfactory to the defendant’s coachman and stop the horses were kept in the stables and joining news, and while being groomed in the mews one of them bolted and was injured. In an injunction by the job master for damages, the jury returned a verdict for the plaintiff.
Held: 1) it was incumbent on the defendant to prove that he exercised reasonable care in the keeping of the horses, and whether he had done so or not was a question of fact for the jury; 2) there were not sufficient grounds for disturbing the verdict at which the jury had arrived.
In a contract for hiring there is an obligation upon the hirer to restore the chattel at the end of the bailment in as good condition as he received it, or, if he cannot do that, to show that he exercised reasonable care in the keeping of the chattel.
Lord Loreburn said that once damage was ascertained on outturn: ‘I cannot think it is good law that in such circumstances he should be permitted to saddle upon the parties who have not broken their contract the duty of explaining how things went wrong. It is for him to explain the loss himself, and if he cannot satisfy the court that it occurred from some cause independent of his own wrong-doing he must make that loss good.’
Lord Halsbury said: ‘It appears to me that here there was a bailment made to a particular person, a bailment for hire and reward, and the bailee was bound to shew that he took reasonable and proper care for the due security and proper delivery of that bailment; the proof of that rested upon him.’

Lord Loreburn, Lord Halsbury
Times 19 May 1905
England and Wales
Cited by:
Cited – Joseph Travers and Sons Ltd v Cooper CA 1915
Goods were loaded onto a barge from a ship for delivery at the barge owners wharf in the Thames under a contract, which exempted the barge owner from liability ‘for any damage to goods how’s the weather caused which can be covered by insurance.’ . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 30 November 2021; Ref: scu.670128

Aktieselskabet de Danske Sukkerfabrikker v Bajamar Compania Naviera SA (The “TORENIA”): 1983

D’s vessel was chartered to carry a cargo of Cuban sugar in bulk. She loaded some 10000 tonnes at Guayabal. Two bills of lading were issued to the shippers. On April 4th 1979 the vessel set sail for Denmark. On April 13th she encountered heavy weather and on April 14th she started to list to port. Water was found in number three hold and in number 3 port deep tank. The entry of water increased and the vessel was abandoned on April 15th. She sank on April 19th. The consignees of the cargo, C, claimed the full value of the same for non-delivery. D contended that they had satisfied the burden of proof in showing that the contract had become impossible of performance and/or that perils of the sea had operated to cause the loss; it was for C to prove that the loss was caused by unseaworthiness. D further relied on article IV of The Hague Rules and claimed that they were entitled to limit any liability under the Merchant Shipping Acts 1894 to 1958.
Held: that 1) where, as here, the facts disclose that the loss was caused by the concurrent positive effect of an excepted and a non-excepted peril, the carrier remains liable. It does not suffice for the carrier to merely prove under article IV r2 of The Hague rules that a cause of the loss was a peril of the sea; 2) the crack in the port side shell plating was not of itself sufficient to cause the vessel to founder; the vessel was lost due to the corroded bulkhead between lower holes 2 and 3 giving way. The vessel was unseaworthy both in this respect and in that her shell plating was corroded, and such unseaworthiness existed at the commencement of the voyage; 3) the unseaworthiness was not latent and nor was it incapable of discovery by due diligence, which in the event was not exercised. D was therefore liable; 4) on the facts D had manifestly not discharged the burden of proving the absence of fault or privity, and could not be there limit liability.
Nothing in the Hague Rules alters the status of a contract of carriage by sea as a species of bailment for reward on terms. Hobhouse J said: ‘The relationship between the present parties is contractual. It follows . . that the question of legal burden of proof has ultimately to be decided by construing the contract between them. . . In ascertaining the effect of the contract one must take into account the nature of the contract. The contract here is a contract in a bill of lading; it is a contract of carriage – that is to say, a species of a contract of bailment.’

Hobhouse J
[1983] 2 Lloyd’s Rep 210
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 30 November 2021; Ref: scu.670135

Instituto Portuario E Dos Transportes Maritimos (IPTM) v Navileme – Consultadoria Nautica, Lda: ECJ 6 Feb 2014

ECJ Reference for a preliminary ruling – Article 52 and Article 56 TFEU – Freedom to provide services – Grant of a recreational boating licence – Condition of residency in the issuing country – Restriction for non-residents – Maintaining maritime safety – Public policy

C-509/12, [2014] EUECJ C-509/12
Bailii
European

Transport

Updated: 29 November 2021; Ref: scu.521187

Swiss Confederation v Commission: ECJ 7 Mar 2013

ECJ Appeal – External relations – Agreement between the European Community and the Swiss Confederation on air transport – Regulation (EEC) No 2408/92 – Access of Community air carriers to intra-Community air routes – Articles 8 and 9 – Scope – Exercise of traffic rights – Decision 2004/12/EC – German measures relating to the approaches to Zurich Airport – Duty to state reasons – Non-discrimination – Proportionality – Burden of proof

C-547/10, [2013] EUECJ C-547/10
Bailii
Regulation (EEC) No 2408/92
Citing:
Opinion – Swiss Confederation v Commission ECJ 13-Sep-2012
ECJ Opinion – Appeal – Actions for annulment – Swiss Confederation – Admissibility – Locus standi – Examination of the Court’s own motion – EC-Switzerland Agreement on Air Transport – Objectives of the agreement . .

Lists of cited by and citing cases may be incomplete.

European, Transport

Updated: 29 November 2021; Ref: scu.521108

Trafigura Beheer Bv v Navigazione Montanari Spa: ComC 30 Jan 2014

Proper construction of a charterparty recorded in a recap, under which the claimants chartered a vessel owned by the defendants, the ‘Valle di Cordoba’, for the carriage of a consignment of premium motor oil.

Andrew Smith J
[2014] EWHC 129 (Comm), [2014] 1 Lloyd’s Rep 550
Bailii
England and Wales

Transport

Updated: 29 November 2021; Ref: scu.520895

Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV: ECJ 19 Dec 2013

ECJ Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Articles 27, 33 and 71 – Lis pendens – Recognition and enforcement of judgments – Convention on the Contract for the International Carriage of Goods by Road (CMR) – Article 31(2) – Rules for coexistence – Action for indemnity – Action for a negative declaration – Negative declaratory judgment

M. Ilesic, P
[2014] 1 All ER (Comm) 288, [2013] EUECJ C-452/12
Bailii
Regulation (EC) No 44/2001
European
Cited by:
Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 28 November 2021; Ref: scu.519483

Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain: ComC 21 May 2014

The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after the full term of the charter. The arbitrator set off that profit against the losses arising on the repudiation. The owners now appealed.
Held: On the facts found by the arbitrator, the application of the principles of law which he had identified did not require the owners to give credit for any benefit in realising the capital value of the vessel in October 2007, by reference to its capital value in November 2009, ‘because it was not a benefit which was legally caused by the breach.’
The search for a single general rule which determines when a wrongdoer obtains credit for a benefit received following his breach of contract or duty is elusive . . Nevertheless a number of principles emerge from the authorities considered above which I would endeavour to summarise as follows: (1) In order for a benefit to be taken into account in reducing the loss recoverable by the innocent party for a breach of contract, it is generally speaking a necessary condition that the benefit is caused by the breach: Bradburn, British Westinghouse, The Elena D’Amico, and other authorities considered above.
(2) The causation test involves taking into account all the circumstances, including the nature and effects of the breach and the nature of the benefit and loss, the manner in which they occurred and any pre-existing, intervening or collateral factors which played a part in their occurrence: The Fanis.
(3) The test is whether the breach has caused the benefit; it is not sufficient if the breach has merely provided the occasion or context for the innocent party to obtain the benefit, or merely triggered his doing so: The Elena D’Amico. Nor is it sufficient merely that the benefit would not have been obtained but for the breach: Bradburn, Lavarack v Woods, Needler v Taber.
(4) In this respect it should make no difference whether the question is approached as one of mitigation of loss, or measure of damage; although they are logically distinct approaches, the factual and legal inquiry and conclusion should be the same: Hussey v Eels.
(5) The fact that a mitigating step, by way of action or inaction, may be a reasonable and sensible business decision with a view to reducing the impact of the breach, does not of itself render it one which is sufficiently caused by the breach. A step taken by the innocent party which is a reasonable response to the breach and designed to reduce losses caused thereby may be triggered by a breach but not legally caused by the breach: The Elena D’Amico.
(6) Whilst a mitigation analysis requires a sufficient causal connection between the breach and the mitigating step, it is not sufficient merely to show in two stages that there is: (a) a causative nexus between breach and mitigating step; and (b) a causative nexus between mitigating step and benefit. The inquiry is also for a direct causative connection between breach and benefit (Palatine), in cases approached by a mitigation analysis no less than in cases adopting a measure of loss approach: Hussey v Eels, The Fanis. Accordingly, benefits flowing from a step taken in reasonable mitigation of loss are to be taken into account only if and to the extent that they are caused by the breach.
(7) Where, and to the extent that, the benefit arises from a transaction of a kind which the innocent party would have been able to undertake for his own account irrespective of the breach, that is suggestive that the breach is not sufficiently causative of the benefit: Lavarack v Woods, The Elena D’Amico.
(8) There is no requirement that the benefit must be of the same kind as the loss being claimed or mitigated: Bellingham v Dhillon, Nadreph v Willmett, Hussey v Eels, The Elbrus, cf The Yasin; but such a difference in kind may be indicative that the benefit is not legally caused by the breach: Palatine.
(9) Subject to these principles, whether a benefit is caused by a breach is a question of fact and degree which must be answered by considering all the relevant circumstances in order to form a commonsense overall judgment on the sufficiency of the causal nexus between breach and benefit: Hussey v Eels, Needler v Taber, The Fanis.
(10) Although causation between breach and benefit is generally a necessary requirement, it is not always sufficient. Considerations of justice, fairness and public policy have a role to play and may preclude a defendant from reducing his liability by reference to some types of benefits or in some circumstances even where the causation test is satisfied: Palatine, Parry v Cleaver.
(11) In particular, benefits do not fall to be taken into account, even where caused by the breach, where it would be contrary to fairness and justice for the defendant wrongdoer to be allowed to appropriate them for his benefit because they are the fruits of something the innocent party has done or acquired for his own benefit: Shearman v Folland, Parry v Cleaver and Smoker.’

Popplewell J
[2014] EWHC 1547 (Comm), [2014] 1 CLC 711, [2015] 1 All ER (Comm) 1205, [2014] 2 Lloyd’s Rep 230, 154 Con LR 183
Bailii
England and Wales
Citing:
Cited – Golden 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 . .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Staniforth v Lyall And Others 27-Nov-1830
Defendants chartered a ship to New Zealand, where they were to load her, or by an agent there to give Plaintiff, the owner, notice that they abandoned the adventure; in which case they were to pay him 5001. The ship went to New Zealand, but found . .
Cited – Wertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .
Cited – The Erie County Natural Gas and Fuel Company Limited and Others v Samuel S Carroll and Another PC 14-Dec-1910
(Ontario) The defendant was found to have breached its obligations to supply natural gas to the plaintiff. The plaintiff spent money on works to procure its own supply, and subsequently sold those works at a profit.
Held: Their Lordships . .
Cited – Jebsen v East and West India Dock Co CCP 25-Feb-1875
Delay caused by a charterer in discharging cargo caused the shipowner to lose passengers whom he had contracted to carry but he was able to take the same passengers in another of his vessels.
Held: The shipowners’ damages were not to be . .
Cited – Shearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
Cited – Shearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
Cited – Lavarack v Woods of Colchester Ltd CA 19-Jul-1966
The plaintiff had been wrongly dismissed. He came to be employed by Martindale at a lower salary, and bought shares in Martindale and Ventilation which increased in value.
Held: The new salary and the increase in the value of the Martindale . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Bellingham v Dhillon QBD 1973
The plaintiff claimed damages for personal injuries, and in particular the loss of profits from his driving school business. He lost the opportunity to lease a driving simulator which would have enabled his company to earn a continuing profit. In . .
Cited – Nadreph Ltd v Willmett and Co 1978
The landlord of commercial premises brought a claim in negligence against its solicitors for a notice to terminate the tenancy, which caused the tenant (Citroen) to vacate the premises and become entitled to statutory compensation from the landlord. . .
Cited – The Yasin 1979
Receivers claimed against shipowners under a bill of lading for loss of a cargo. The shipowners argued on a preliminary issue that the insurance proceeds paid to receivers fell to be taken into account so as to wipe out the damages claimed. They . .
Cited – Golden 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 . .
Cited – Choil Trading Sa v Sahara Energy Resources Ltd ComC 26-Feb-2010
Losses incurred from hedging undertaken in mitigation of breach of a sale contract are recoverable . .

Cited by:
Appeal from – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
At first Instance – Globalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .

Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 28 November 2021; Ref: scu.525784

Jebsen v East and West India Dock Co: CCP 25 Feb 1875

Delay caused by a charterer in discharging cargo caused the shipowner to lose passengers whom he had contracted to carry but he was able to take the same passengers in another of his vessels.
Held: The shipowners’ damages were not to be reduced on that account.
In an action for breach of a contract for the quick discharge of a ship made with several persons jointly, where some of the plaintiff’s had made profits by reason of such breach of contract which they would not otherwise have made, through another ship in which they were interested having been substituted for the purpose for which the former ship was required.
Held: that the amount of the joint damages could not be reduced by the profits so made by some of the plaintiff’s individually.

(1874) LR 10 CP 300, [1875] UKLawRpCP 20
Commonlii
England and Wales
Cited by:
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .

Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 28 November 2021; Ref: scu.642150

Aklagaren v Percy, Mickelsson v Joakim Roos: ECJ 4 Jun 2009

ECJ Directive 94/25/EC – Approximation of laws – Recreational craft – Prohibition of using personal watercraft on waters other than general navigable waterways – Articles 28 EC and 30 EC Measures having equivalent effect – Access to the market Impediment – Protection of the environment Proportionality

C.W.A. Timmermans, P
[2009] EUECJ C-142/05, C-142/05, [2009] All ER (EC) 842, [2009] ECR I-04273
Bailii
Directive 94/25/EC
Citing:
See Also – Aklagaren v Percy, Mickelsson v Joakim Roos ECJ 14-Dec-2006
ECJ Opinion – Approximation of laws – Recreational craft – Rules on the use of personal watercraft – Directive 94/25/EC – Article 28 EC – Measure having equivalent effect. . .

Lists of cited by and citing cases may be incomplete.

European, Transport

Updated: 26 November 2021; Ref: scu.517800

Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck): HL 1992

The effect of breach of an insurance warranty is automatic, rather than dependant on any acceptance or election.
Lord Goff of Chieveley said: ‘So it is laid down in section 33(3) that, subject to any express provision in the policy, the insurer is discharged from liability as from the date of the breach of warranty. Those words are clear. They show that discharge of the insurer from liability is automatic and is not dependent upon any decision by the insurer to treat the contract or the insurance as at an end; though, under section 34(3), the insurer may waive the breach of warranty.
Section 33(3) of the Act reflects what has been described, in successive editions of Chalmers, The Marine Insurance Act 1906, as the inveterate practice in marine insurance of using the term ‘warranty’ as signifying a condition precedent.’ Lord Goff referred to Thomson -v- Weems and said ‘Once this is appreciated, it becomes readily understandable that, if a promissory warranty is not complied with, the insurer is discharged from liability as from the date of breach of warranty, for the simple reason that fulfilment of the warranty is a condition precedent to the liability of the insurer . . In the case of conditions precedent, the word ‘condition’ is being used in its classical sense in English law, under which the coming into existence of (for example) an obligation, or the duty or further duty to perform an obligation, is dependent upon the fulfilment of the specified condition. Here, where we are concerned with a promissory warranty, i.e. a promissory condition precedent, contained in an existing contract of insurance, non-fulfilment of the condition does not prevent the contract from coming into existence. What it does (as section 33(3) makes plain) is to discharge the insurer from liability as from the date of the breach. Certainly, it does not have the effect of discharging the contract ab initio. Nor, strictly speaking, does it have the effect of bringing the contract to an end. It is possible that there may be obligations of the assured under the contract which will survive the discharge of the insurer from liability, as for example a continuing liability to pay premium. Even if in the result no further obligations rest on either party, it is not correct to speak of the contract being avoided; and it is, strictly speaking, more accurate to keep to the carefully chosen words in section 33(3) of the Act, rather than to speak of the contract being brought to an end, though that may be the practical effect. When, as section 34(3) contemplates, the insurer waives a breach of a promissory warranty, the effect is that, to the extent of the waiver, the insurer cannot rely upon the breach as having discharged him from liability. This is a very different thing from saying that discharge of the insurer from liability is dependent upon a decision by the insurer.

Lord Goff of Chieveley
[1992] 1 AC 233
Marine Insurance Act 1906 33
England and Wales
Citing:
Appeal from – Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) CA 1990
When a contract is to be construed purposively, the court must look to the purposes of both parties, not just one of them. No apportionment was to be applied under the 1945 Act: ‘Similarly, we think that the facts and circumstances of the present . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Cited – Thomson v Weems HL 1884
Where a basis of the contract clause makes the correctness or completeness of the insured’s disclosure into a warranty, a breach of that warranty has the effect that the insurance cover never attaches under the contract.
Lord Blackburn said: . .

Cited by:
Cited – AXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
Cited – Brit Syndicates Ltd and others v Italaudit Spa and others HL 12-Mar-2008
The parties disputed the extent of cover under an insurance policy. The insured firm of accountants had failed to verify the existence of a substantial balance claimed by the company it audited. The policy ‘included as an Assured Firm but solely in . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd CA 4-Oct-2013
The housing association was to develop an estate of social housing, supported by an insurance guarantee. The insurance proposal contained a clause stating that the information in the proposal was to form the basis of the policy, and that the policy . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd TCC 8-Nov-2012
Insurers had rejected a claim under the policy, saying that the proposal form had included a basis of insurance declaration warranted by the proposer, and that since it had named a main contractor different to the one named, there was no liability . .

Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 23 November 2021; Ref: scu.223450

Tekem Sea Abyss Ltd v Brandston Ltd; ‘The Ocean Enterprise’: AdCt 9 Jan 1997

ComC Shipping – registration of ships – – no statutory power to expunge the register – inherent – sale of ship to company in which seller held interest – fiduciary duty – breach – voidable contract – classification as ‘goods’ – Sale of Goods Act 1979 – goods – passing of voidable title – good faith – knowledge of company Company – power of director to bind company – agency – actual and ostensible authority Company – goods – passing of voidable title – Sale of Goods Act 1979 section 23 – good faith – knowledge of company

Geoffrey Brice QC
Unreported, 9 January 1997
Sale of Goods Act 1979 23, Merchant Shipping Act 1995 10(2)(I)
England and Wales

Transport, Company, Contract

Updated: 23 November 2021; Ref: scu.186612

Shearer Transport Ltd: UTAA 30 Sep 2013

UTAA Traffic Commissioner cases – Convictions for serious offences, including assault occasioning severe injury and permanent disfigurement, possession of a self-loading pistol and bulleted cartridges, and supply of controlled drugs. Non-disclosure of notifiable convictions on application form for an operator’s licence. Continuing non-disclosure at a subsequent public inquiry.

[2013] UKUT 489 (AAC)
Bailii

Transport

Updated: 22 November 2021; Ref: scu.516830

Caresse Navigation Ltd v Office National De L’Electricite and Others: ComC 14 Oct 2013

The Court was asked as to the effect of the incorporation into a bill of lading of the ‘Law and Arbitration clause’ of an identified charterparty when the dispute resolution clause in that charterparty provides, not for English law and arbitration, but for English law and court jurisdiction. Two main questions arise: (i) should the clause be read as providing for the jurisdiction of this court and (ii) is there in any event an effective choice of English law as the law applicable to the bill of lading?

Males J
[2013] EWHC 3081 (Comm), [2013] 2 CLC 480, [2014] 1 Lloyd’s Rep 337
Bailii
England and Wales
Cited by:
Appeal from – Caresse Navigation Ltd v Zurich Assurances Maroc and Others CA 21-Oct-2014
Appeal against an interim anti-suit injunction . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 21 November 2021; Ref: scu.516457

Prendergast v Compton: 21 Dec 1837

Conduct unbecoming a gentleman, in the strict sense of the word, will, it seems, justify a captain of a ship in excluding a passeuger from the cuddy table whom he has engaged by contract to provide for there, but it is difficult to say in what degree want of polish would, in point of law, warrant such exclusion but it is clear that if a passenger use threats of persoual violence towards the captain, the captain may exclude him from the table, and require him to take his meals in his own private apartment. If the husband be excluded from the cuddy table, and the wife, not from compulsion, but from a wish to be with her husband, take her meals with him in private, this will not amount to a breach of contract on the part of the captain so far as regards the wife.

[1837] EngR 1165, (1837) 8 Car and P 454, (1837) 173 ER 572
Commonlii
England and Wales

Contract, Transport

Updated: 21 November 2021; Ref: scu.314282

Hatton and Others v The United Kingdom: ECHR 8 Jul 2003

More Night Flights No Infringement of Family Life

The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without allowing them an opportunity to challenge the increase.
Held: The claimants had not had proper opportunity to challenge the decisions, but their rights to a private family life had not been infringed. Previous cases had involved some breach of national law. This case did not. It remained difficult to establish that the volume of noise had increased since 1993. House prices in the area had not been adversely affected, and only 2 or 3 per cent of inhabitants had had their sleep disturbed. The limitation on courts of testing whether an authority had acted irractionally, ulawfully or manifestly unreasonably was a classic English public law test, but before the Human Rights Act 1998, the applicants had not been able to test a decision to see whether a claimed increase was a justifiable limitation on their right to respect for family and private life.
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8 ; Violation of Art. 13 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings

Times 10-Jul-2003, 36022/97, [2003] 37 EHRR 611, [2003] 37 EHRR 28
European Convention on Human Rights 5 8
Human Rights
Citing:
Appeal from – Hatton and Others v United Kingdom ECHR 2-Oct-2001
The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a . .

Cited by:
Referred to – Hatton and Others v United Kingdom ECHR 2-Oct-2001
The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Lough and others v First Secretary of State Bankside Developments Ltd CA 12-Jul-2004
The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach . .
Cited – Council of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
Cited – Andrews v Reading Borough Council QBD 29-Apr-2004
The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Environment, Transport, Human Rights

Updated: 19 November 2021; Ref: scu.184415

Grey (T/A Citytax) v City and County of Swansea: CA 27 Jun 2013

The court was asked whether a school bus was being ‘used . . for carrying passengers’ within section 12(1) of the Act at a time when the school children had got on to the bus and the register had been taken but the bus had not yet moved off from its parking place.

Richards, Davis, Lloyd-Jones LJJ
[2013] EWCA Civ 1057, [2013] WLR(D) 260, [2013] PTSR 1366
Bailii
Public Passenger Vehicles Act 1981
England and Wales

Transport

Updated: 19 November 2021; Ref: scu.514391

The United Road Transport Union, Regina (on The Application of) v Secretary of State for Transport: CA 29 Jul 2013

The Union appealed against refusal of judicial review of decisions of the defendant to refuse to accede to the claimant’s request that there be introduced secondary legislation having the effect of providing for commercial road transport workers a civil remedy (in particular in the form of access to an employment tribunal) if they were required to work in contravention of regulations providing for breaks and rest periods, in line with the access to a tribunal which is available for the generality of other workers in a comparable situation. What is said is that the refusal to introduce any such secondary legislation in respect of commercial road transport workers breaches either the principle of equivalence; or the principle of effectiveness; or both.
Held: The appeal failed.

Jackson, Elias, Davis LJJ
[2013] EWCA Civ 962
Bailii
England and Wales

Transport

Updated: 17 November 2021; Ref: scu.513709