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

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:
CitedVolcafe 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

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:
CitedVolcafe 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

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:
CitedCoggs 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 ComCVolcafe 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 . .
CitedReeve 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 . .
CitedMorison, Pollexfen and Blair v Walton 10-May-1909
. .
CitedDollar 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 . .
CitedJoseph 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.’ . .
CitedGosse 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 . .
CitedThe ‘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 . .
CitedBritish 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 . .
CitedVolcafe 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 . .
CitedAktieselskabet 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 . .
CitedF C Bradley and Sons Ltd v Federal Steam Navigation Co Ltd 1927
. .
CitedHomburg 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 . .
CitedGreat 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 . .
CitedSilver 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. . .
CitedPaterson Steamships Limited v Canadian Co-Operative Wheat Producers, Limited PC 26-Jul-1934
(Quebec) . .
CitedGH 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 . .
CitedPyrene 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 . .
CitedJ 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 . .
CitedNotara 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 . .
CitedThomas 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 . .
CitedAlbacora 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 lawThe 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 . .
CitedNugent 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

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 AlsoMasefield Ag v Amlin Corporate Member Ltd; The Bunga Melati Dua ComC 18-Feb-2010
. .
Not FollowedThe Mareva AS 1977
The wording ‘average accident’ in the policy: ‘merely means an accident which causes damage.’ . .
CitedKidston 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 . .
DistinguishedThe 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 . .
CitedThe 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 – . .
CitedKelman v Livanos 1955
. .
CitedChandris 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, . .
CitedThomas 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 . .
CitedRoyal 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

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

Lady Hale, President, Lord Reed, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 63, Bailii Summary , [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, 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

Land, Local Government, Transport

Updated: 01 December 2021; Ref: scu.630951

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:
ApprovedPyrene 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:
CitedVolcafe 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:
CitedEvergreen 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 . .
CitedJindal 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 . .
ApprovedGH 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 . .
AppliedThe Ciechocinek CA 1976
. .
AppliedThe Arawa 1977
. .
AppliedThe Filikos 1981
. .
AppliedThe Strathnewton CA 1983
. .
AppliedThe Panaghia Tinnou 1986
. .
AppliedThe Holstencruiser 1992
. .
AppliedThe Coral CA 1993
. .
CitedJ I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
CitedVolcafe 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

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:
AppliedGosse 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:
CitedVolcafe 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

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 fromThe 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
. .
CitedGlynn 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 . .
CitedUniversal 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’. . .
CitedHamilton 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. . .
CitedSimond 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. . .
CitedThe 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 . .
CitedLeigh 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 fromHomburg 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 . .
CitedAdler 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 InstanceThe 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:
CitedJIS (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 . .
CitedDairy 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 . .
CitedTaylor 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 . .
CitedPhonographic 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 . .
CitedPhonographic 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 . .
CitedJindal 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 . .
CitedJ I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
CitedTelewest 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 . .
CitedIqbal 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 . .
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
CitedAlchemy 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 . .
CitedChartbrook 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: . .
CitedRainy 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 . .
CitedBNY 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 . .
CitedVolcafe 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

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:
CitedVolcafe 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:
CitedVolcafe 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

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

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 AlsoAdmiralty 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:
ApprovedBradburn 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:
CitedParry 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 AlsoIn re Steamship ‘Prinz Adalber’ Hamburg-Amerika Line v Her Majesty’s Procurator Genera and similar PC 4-Feb-1918
. .
CitedOliver 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 . .
CitedPickett 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

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 fromVolcafe 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:
CitedVolcafe 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

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

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:
CitedVolcafe 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.670133

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 fromVolcafe 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 ComCVolcafe 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 InstanceGosse Millard v Canadian Government Merchant Marine HL 1929
. .
CitedVolcafe 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 . .
AppliedSilver 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:
CitedVolcafe 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:
CitedJoseph 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.’ . .
CitedVolcafe 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:
CitedVolcafe 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:
OpinionSwiss 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

Robertson v The Balmain New Ferry Company Ltd: PC 10 Dec 1909

High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of this contract. Then the Plaintiff changed his mind, and wished to go back. The rules as to the exit from the wharf by the turnstile required a penny for any person who went though. This the Plaintiff refused to pay, and he was by force prevented from going through the turnstile. He then claimed damages for assault and false imprisonment,
Otherwise: Robinson v Balmain New Ferry Co Ltd

[1909] UKPC 1, [1909] UKPC 58, [1910] AC 295, [1909] UKLawRpAC 62
Bailii, Bailii, Commonlii
Australia
Cited by:
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Torts – Other

Updated: 29 November 2021; Ref: scu.245719

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:
CitedBritish 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 . .
CitedBritish 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:
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
CitedBradburn 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 . .
CitedBritish 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 . .
CitedStaniforth 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 . .
CitedWertheim 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. . .
CitedThe 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 . .
CitedJebsen 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 . .
CitedShearman 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 . .
CitedShearman 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 . .
CitedLavarack 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 . .
CitedParry 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 . .
CitedBellingham 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 . .
CitedNadreph 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. . .
CitedThe 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 . .
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
CitedChoil 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 fromFulton 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 InstanceGlobalia 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:
CitedBritish 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 . .
CitedFulton 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 AlsoAklagaren 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 fromBank 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 . .
CitedState 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, . .
CitedThomson 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:
CitedAXA 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 . .
CitedBrit 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 . .
CitedGenesis 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 . .
CitedGenesis 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 fromCaresse 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 fromHatton 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 toHatton 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 . .
CitedMarcic 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 . .
CitedLough 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 . .
CitedCouncil 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 . .
CitedAndrews 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, . .
CitedOsborn 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

HS2 Action Alliance Ltd and Others v Secretary of State for Transport: CA 24 Jul 2013

The claimants challenged the plan for a major railway development, saying that an environmental impact assessment should have been made first.
Held: (Sullivan LJ dissenting) The claimant’s appeal failed. The strategy as proposed was not such as to constitute a plan which might require the environmental impact assessment. The DNS would have no legal influence on Parliament, which was not obliged to comply with it or even to have regard to it in reaching its decision. Nor was it appropriate or possible for the court to assess the degree of influence the DNS was likely to have as a matter of fact on Parliament’s decision-making process: ‘Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do. Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive. No final decision has yet been taken as to the form or length of debate that is to take place in Parliament.’
The hybrid Bill procedure through which the strategy passed would allow sufficient effecive public participation .
Lord Dyson MR spoke of the different degrees of influence which a plan might have: ‘At one end of the spectrum is the plan or programme which conclusively determines whether consent is given and all material conditions. Such a plan or programme clearly sets the framework. It is an example of legal influence of highest order. At the other end of the spectrum is the plan or programme which identifies various development options, but which states that the decision-maker is free to accept or reject all or any of the options.’

Lord Dyson MR, Richards, Sullivan LJJ
[2013] EWCA Civ 920, [2013] WLR(D) 308, [2013] PTSR 1194, [2013] PTSR 1194
Bailii, WLRD
Strategic Environmental Assessment Directive (Parliament and Council Directive 2001/42/EC
England and Wales
Citing:
At AdmnBuckinghamshire County Council and Others, Regina (on The Application of) v Secretary of State for Transport Admn 15-Mar-2013
The claimants challenged the strategy published by the government for the development of the propose HS2 railway line, saying that it required first a strategic environmentalimpact assessment under European law.
Held: The claim failed. The . .

Cited by:
Appeal fromHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .

Lists of cited by and citing cases may be incomplete.

Planning, Environment, Transport, European, Constitutional

Updated: 17 November 2021; Ref: scu.513694

K Line Pte Ltd v Priminds Shipping (HK) Co Ltd: ComC 7 Sep 2020

Nature of demurrage payable under a voyage charter when the charterer has failed to load or discharge the ship within the laytime allowed. On the facts, the question arises following a failure timely to discharge cargo resulting in delay at the discharge port.

Mr Justice Andrew Baker
[2020] EWHC 2373 (Comm)
Bailii
England and Wales

Transport

Updated: 17 November 2021; Ref: scu.653909

Stagecoach East Midlands Trains Ltd and Others v The Secretary of State for Transport: TCC 17 Jun 2020

The Defendant Secretary of State was conducting three franchise procurement competitions during a period when there was considerable uncertainty about the scope of potential pension liabilities because of intervention by the Pensions Regulator

Mr Justice Stuart-Smith
[2020] EWHC 1568 (TCC)
Bailii
England and Wales

Transport, European

Updated: 17 November 2021; Ref: scu.653340

Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd: ComC 27 Apr 2020

Return date in respect of two mandatory injunctions requiring a voyage charterer, Clearlake, and a sub-voyage charterer, Petrobras, ‘forthwith’ to provide such bail or other security required to secure the release of the vessel MIRACLE HOPE from arrest in Singapore.

Teare J
[2020] EWHC 995 (Comm)
Bailii
England and Wales
Citing:
See AlsoTrafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd ComC 26-Mar-2020
The Claimant time charterer seeks an urgent mandatory injunction compelling the Defendant voyage charterer to provide security to enable the release of the MT ‘Miracle Hope’ (the ‘Vessel’), which is currently under arrest in Singapore. In summary, . .
See AlsoClearlake Chartering Usa Inc and Another v Petroleo Brasileiro Sa ComC 31-Mar-2020
. .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 17 November 2021; Ref: scu.651159

Thrige v United Shipping Company Ltd: CA 1924

The plaintiff sold machinery to a purchaser in England. The terms of sale were cash against documents. Thrige took a straight bill of lading which named the Victoria Company as the consignee without any reference to ‘or order or assigns’. The goods were discharged at their final destination without the bill of lading, and Thrige thereby lost the value of the shipment.
Held: No cause of action had been shown against the defendant since it acted as a mere agent without possession of the goods. The court asked what might have arisen if the carrier had been sued. The bill of lading was odd being taken neither to the shipper’s nor to the consignee’s order. The court expressed doubt whether a carrier was in breach if he delivered goods without production of the bill where the bill was made out to a named consignee and property in the goods passed on shipment.

Scrutton LJ
(1924) 18 Ll L Rep 6
England and Wales
Citing:
Appeal fromThrige v United Shipping Company Limited 1923
. .

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

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 November 2021; Ref: scu.181887

Dundee Corporation: HL 27 Jul 1921

This Order was promoted by the Corporation of Dundee for power to construct a road on the foreshore between Dundee and Broughty-Ferry in fulfilment of an obligation imposed on them by the Dundee Boundaries Act 1913, by which Act the two burghs were amalgamated, for power to run motor buses over routes partly within and partly without the burgh boundaries, and for other purposes. The proprietors of the foreshore proposed to be taken for the new road opposed this part of the Order, but unsuccessfully. The clauses relating to the power to run motor buses were opposed by the Railway Companies and by commercial companies already providing such services in the district sought to be worked. On this point the preamble was held not proved.
Clauses were adjusted other than those relating to the motor bus services.

Lord Donington, Lord Tweeddale, and Major A. C. Farquharson, M.P
[1921] UKHL 664, 58 SLR 664
Bailii
Scotland

Transport

Updated: 15 November 2021; Ref: scu.632639

European Commission v Czech Republic: ECJ 11 Jul 2013

ECJ Failure of a Member State to fulfil obligations – Transport – Directive 91/440/EEC – Development of the Community’s railways – Article 10(7) – Regulatory body – Competences – Directive 2001/14/EC – Allocation of railway infrastructure capacity – Article 4(1) – Charging framework – Article 6(2) – Measures intended to provide the infrastructure manager with incentives to reduce the costs of provision of infrastructure and the level of access charges – Article 7(3) – Setting charges for the minimum access package and track access to service facilities – Cost directly incurred as a result of operating the railway service – Article 11 – Performance scheme – Article 30(5) – Regulatory body – Competence – Administrative appeal against the decisions of the regulatory body

C-545/10, [2013] EUECJ C-545/10
Bailii
European

Transport

Updated: 15 November 2021; Ref: scu.512339

European Commission v Republic of Slovenia: ECJ 11 Jul 2013

ECJ Failure of a Member State to fulfil obligations – Transport – Directive 91/440/EEC – Development of the Community’s railways – Directive 2001/14/EC – Allocation of railway infrastructure capacity – Article 6(3) and Annex II to Directive 91/440 – Article 14(2) of Directive 2001/14 – Infrastructure manager – Participation in the preparation of the service timetable – Traffic management – Article 6(2) to (5) of Directive 2001/14 – Failure to provide incentives for infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges – Articles 7(3) and 8(1) of Directive 2001/14 – Cost that is directly incurred as a result of operating the train service – Article 11 of Directive 2001/14 – Performance scheme

A. Tizzano, P
C-627/10, [2013] EUECJ C-627/10
Bailii
Directive 91/440/EEC, Directive 2001/14/EC
European

Transport

Updated: 15 November 2021; Ref: scu.512340

Ryanair Ltd v European Commission: ECJ 13 Jun 2013

ECJ Appeal – State aid – Loan granted by the Italian Republic to the airline company Alitalia – Decision declaring the aid unlawful and incompatible – Sale of assets of Alitalia – Decision finding no aid at the conclusion of the preliminary examination phase – Action for annulment – Locus standi – Interested party – Admissibility – Serious difficulties – Competence – Duty to state reasons

R. Silva de Lapuerta, P
C-287/12, [2013] EUECJ C-287/12
Bailii

European, Transport

Updated: 14 November 2021; Ref: scu.511013

Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others (Rev 1): ComC 14 Jun 2013

[2013] EWHC 1667 (Comm)
Bailii
England and Wales
Cited by:
See AlsoVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others ComC 14-Jun-2013
The claimant shipowners suffered damage to their vessel and claimed under their policy with the defendants. The defendants argued that part of the evidence supporting the explanation of the claim was fabricated, thus excusing any payment.
Transport, Insurance

Updated: 14 November 2021; Ref: scu.510958

British Airways Plc and Another v Sindicato Espanol De Pilotos De Lineas Aereas and Another: ComC 20 Jun 2013

The court was asked whether it had jurisdiction under the Regulation to determine the claim brought by the Claimants against a Spanish trade union, for damages and declaratory and injunctive relief alleging that strikes of Spanish airline pilots organised by the Union were unlawful under Spanish law in that they were in breach of the Claimants’ right to freedom of establishment and to provide cross border services under Articles 49 and 56 of the Treaty on the Functioning of the European Union.

Field J
[2013] EWHC 1657 (Comm), [2013] ILPr 45, [2013] 2 CLC 65
Bailii
EC Regulation 44/2001, Treaty on the Functioning of the European Union
England and Wales

European, Transport

Updated: 14 November 2021; Ref: scu.510954

European Commission v Kingdom Of Spain, etc: ECJ 6 Jun 2013

ECJ Opinion – ‘ the Commission takes issue with an interpretation of Directive 2006/112 (2) under which eight Member States consider that the special VAT margin scheme for travel agents set out in Articles 306 to 310 of that directive . . applies regardless of whether the customer is actually the traveller or not. On the basis of the terminology used in some language versions of the provisions in question, that is referred to as ‘the customer approach’. The Commission asserts that, under the legislation as it stands (and in accordance with the practice in the remaining Member States), the margin scheme applies only where the customer is the traveller. Its interpretation is referred to, on the basis of the terminology in other language versions, as ‘the traveller approach’. ‘

Sharpston AG
C-189/11, [2013] EUECJ C-189/11, [2013] EUECJ C-189/11
Bailii, Bailii

European, Transport, Consumer, VAT

Updated: 12 November 2021; Ref: scu.510328

Effort Shipping Company Ltd v Linden Management Sa and others (The Glannis Nk): HL 22 Jan 1998

A ship’s cargo can be held to be dangerous, and the shipper liable for anything which was more than an obvious physical danger. Such wider danger includes beetle infestation of a crop cargo. Lord Steyn said:’I would be quite prepared, in an appropriate case involving truly feasible alternative interpretations of a convention, to allow the evidence contained in the travaux preparatoires to be determinative of the question of construction. But that is only possible where the court is satisfied that the travaux preparatoires clearly and indisputably point to a definite legal intention: see Fothergill v Monarch Airlines Ltd., per Lord Wilberforce, at p.278c. Only a bull’s-eye counts. Nothing less will do.’

Lord Lloyd of Berwick, Lord Steyn
Times 29-Jan-1998, Gazette 18-Feb-1998, [1998] UKHL 1, [1998] AC 605, [1998] 2 WLR 206, [1998] 1 All ER 495
House of Lords, Bailii
Carriage of Goods by Sea Act 1971, Hague Rules
England and Wales
Citing:
Appeal fromEffort Shipping Co Ltd v Linden Management Sa and Another (The Glannis Nk) CA 5-Feb-1996
A shipper’s liability for known dangerous goods is not limited by fault or by negligence. . .
At first instanceEffort Shipping Co Ltd v Linden Management Sa and Another (The Glannis Nk) QBD 5-May-1994
A danger to the goods on board a ship made the cargo physically dangerous. The ship’s master was responsible. . .

Cited by:
CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
CitedMullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
CitedAerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
CitedNova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
The defendant appealed against a finding of copyright infringement in a computer game.
Held: The appeal failed. The court must identify the artistic work relied upon and then decide whether it has been reproduced by copying of the work as a . .
CitedHiggs v Regina CACD 24-Jun-2008
The defendant appealed against his conviction under the section. He ran a business fitting modifying chips to games consoles allowing them to play non-certificated games CDs.
Held: The appeal was allowed. It was not suggested that the use of a . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 12 November 2021; Ref: scu.158932

Splitt Chartering Aps and Others v Saga Shipholding Norway As and Others: AdCt 22 May 2020

The anchor of a dumb barge riding out a storm, damaged an underwater cable. The claimants including the fourth, a company that placed men on board with instructions to operate the barge’s machinery whilst it was at anchor off Dover, sought to limit their liability using the 1995 Act and the Convention.
Held: The declaration limiting liability was granted. The term ‘manager’ had to include the person entrusted at the time with the duties of devising and implementing the appropriate safety and care systems.

Teare J
[2020] EWHC 1294 (Admlty), [2020] WLR(D) 316
Bailii, WLRD
Merchant Shipping Act 1995, Convention on Limitation of Liability for Maritime Claims 1976
England and Wales

Transport

Updated: 12 November 2021; Ref: scu.653115

Eurowings (Air Transport – Common Rules On Compensation and Assistance To Passengers In The Event of Cancellation or Long Delay – Judgment): ECJ 6 Oct 2021

Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(3) – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Exemption from the obligation to pay compensation – Concept of ‘extraordinary circumstances’ – Strike by airline staff – Strike by the staff of a subsidiary in solidarity with the staff of the parent company

C-613/20, [2021] EUECJ C-613/20, ECLI:EU:C:2021:820
Bailii
European

Transport, Consumer

Updated: 12 November 2021; Ref: scu.668548

The Secretary of State, Regina (on The Application of) v HM Senior Coroner for Norfolk and Another: Admn 28 Sep 2016

Coroner may not use flight records

The coroner was charged to investigate four deaths in an helicopter accident. The Secretary of State now challenged various decisions of the Coroner by which (i) she ordered disclosure to her of a cockpit voice and flight data recorder and/or a full transcript of that voice recording; and (ii) she imposed a fine for non-compliance with those orders.
Held: The request for judiial review succeeded. The 1944 Convention applied to restrict the use of such recordings save where disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations.

Lord Thomas of Cwmgiedd CJ, Singh J
[2016] EWHC 2279 (Admin)
Bailii
Coroners and Justice Act 2009, Convention on International Civil Aviation 1944
England and Wales

Coroners, Transport

Updated: 11 November 2021; Ref: scu.569629

The owners of the cargo lately laden on board the ship ‘Tatry’ v The owners of the ship ‘Maciej Rataj’: ECJ 6 Dec 1994

ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another convention on a specific matter containing rules on jurisdiction, that specialized convention precludes the application of the provisions of the Brussels Convention only in cases governed by the specialized convention and not in those to which it does not apply. Where a specialized convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the Brussels Convention accordingly apply.
On a proper construction of Article 21 of the Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
For the purposes of Article 21 of the Convention, the ’cause of action’ comprises the facts and the rule of law relied on as the basis of the action and the ‘object of the action’ means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
The concept of ‘related actions’ defined in the third paragraph of Article 22 of the Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.

Times 28-Dec-1994, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Bailii
Brussels Convention 21 22
European
Cited by:
CitedSarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
CitedTelevision Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
CitedIn re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
CitedStarlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
CitedBritish 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 . .
CitedWright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European, Transport

Leading Case

Updated: 11 November 2021; Ref: scu.161021

Haydon v Kent County Council: CA 1978

Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully taken up with sanding and gritting roads, but on the Wednesday evening one of their workmen reported the dangerous state of the particular path to them, and they took prompt action next morning, but not in time to prevent the plaintiff’s accident.
Held: The authority was liable. The duty to maintain the highway in section 44(1) included removing snow and ice and taking such protective measures as would render highways and paths safe for vehicles and pedestrians in bad weather conditions.
Lord Denning (dissenting): ”Repair’ means making good defects in the surface of the highway itself so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. That is the combined effect of the statements of Blackburn J. in Reg. v. Inhabitants of High Halden (1859) 1 F. and F. 678; of Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 and Cairns L.J. in Worcestershire County Council v. Newman [1975] 1 W.L.R. 901, 911. Thus deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface make all the highways ‘out of repair’.’ The statutory definition does not imply that ‘maintain’ has a wider meaning than ‘repair’, and that given the legislation history the cause of action which an injured person has under the 1961 Act was limited to ‘non-repair’ of a highway, and did not include other cases. On the extent of that duty: ‘In my opinion, therefore, the duty in section 44 of the Act of 1959 ‘to maintain the highway’ is the equivalent of the duty at common law and in the Act of 1835 ‘to repair and keep in repair.’ It means that whenever there is a defect in the surface of the highway, the highway authority is under a duty to repair it. But it does not mean that the highway authority is under a duty to remove snow or ice whenever it makes the highway slippery or dangerous. I adhere, therefore, to the view I expressed in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1494: ‘. . . an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain’.
Goff L.J said that the highway authority would be in breach of duty only if: ‘having regard to the nature and importance of the way, sufficient time [has] elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence.’

Lord Denning MR, Goff and Shaw LJJ
[1978] QB 343, [1978] 2 All ER 97
Highways Act 1959 44(1), Highways Act 1961
England and Wales
Citing:
CitedRegina v Inhabitants of High Halden 1859
highhalden1859
The court considered the liability of the parish for injury arising from a failure to repair the road. The road was ‘an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances’. The evidence was that in wet . .
CitedBurnside and Another v Emerson and Others CA 1968
The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of . .
CitedHereford and Worcester County Council v Newman CA 1975
The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung . .

Cited by:
ConsideredStovin v Wise (Norfolk City Council, 3rd party) CA 16-Feb-1994
A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedThoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .
CitedDepartment for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
CitedGoodes 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 . .
CitedAli v The City of Bradford Metropolitan District Council CA 17-Nov-2010
The claimant appealed against rejection of her claim for damages after slipping on a footpath maintainable by the defendant after an accumulation of mud and debris. The claim appeared to be the first under section 130, and the highway authority . .
CitedPritchard v Clwyd County Council CA 16-Jun-1992
The plaintiff was injured wading through a flooded street. She claimed damages alleging a failure to maintain the storm water sewers. The defendants appealed a finding that they were responsible, and she appealed a contributory negligence . .

Lists of cited by and citing cases may be incomplete.

Transport, Personal Injury, Negligence

Leading Case

Updated: 11 November 2021; Ref: scu.180995

Farstad Supply As v Enviroco Ltd: SC 6 Apr 2011

The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless (including in the case of the charterer its ‘Affiliates’) in relation to certain liabilities. The standard agreement defined an Affiliate to include subsidiary companies, which in turn implied a requirement of membership. Under Scots Law a chargee of shares would be registered as owner. The chargor would then cease to be a member and subsidiary, and a beneficiary of the indemnity. In English law, he would have an interest in equity only.
Held: The appeal was dismissed. There was no error sufficiently clearly established to allow a court to remedy the defect found: ‘The decisions therefore indicate with remorseless clarity that anyone who is entered on the register of a company as a member in any capacity is quite simply a member, with all the relevant rights and liabilities. That being so, on July 7 2002 Nominees was in all respects the relevant member of Enviroco holding the shares transferred to it. There is therefore no room for the view that, somehow, under Scots law Asco rather than Nominees should be regarded as the member of Enviroco because Asco had transferred its shares to Nominees in security only.’

Lord Hope, Deputy President, Lord Rodger, Lord Mance, Lord Collins, Lord Clarke
[2011] UKSC 16, UKSC 2010/0008
Bailii Summary, Bailii, SC Summary, SC
Seventh Council Directive on consolidated accounts (83/349/EEC of June 13, 1983, Companies Act 1985 736
England and Wales
Citing:
Appeal fromEnviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
See AlsoGawler v Raettig (Leave) CA 3-Dec-2007
Application for leave to appeal. . .
CitedAdamastos Shipping v Anglo Saxon Petroleum HL 1959
Where the terms of a statute are incorporated into a contract by reference, the contract has to be read as if the words of the statute are written out in the contract and construed, as a matter of contract, in that contractual context. The Hague . .
CitedChartbrook 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: . .
MentionedMuir v City of Glasgow Bank HL 1878
The bank had failed as the result of a fraud perpertrated by its directors. The liability of the members was unlimited. Lord President Inglis said: ‘Persons becoming partners of a joint stock company, such as the Western Bank, and being registered . .
CitedElliot v Mackie and Sons Ltd; Elliot v Whyte 1935
Executors of the deceased founder of the company had executed transfers of shares in favour of two of their number and a third party to qualify them as directors of the company under the articles, the trustees and executors wanting adequate . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedWard v Commissioner of Police for the Metropolis and others HL 5-May-2005
The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. . .
CitedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .

Lists of cited by and citing cases may be incomplete.

Transport, Company, Scotland, European

Updated: 11 November 2021; Ref: scu.431825

Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others: HL 23 Jan 2001

The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been unseaworthy, and that that was causative of the fire, and that the claimants knew of the condition, and that they had withheld a privileged expert report, said to be relevant to an allegation that the insured had knowingly sent the vessel to sea in an unseaworthy condition.
Held: That defence failed. The insurers then claimed that after litigation had commenced, the claimants had failed to make proper disclosure, and that since the contract was uberrimae fidei, that vitiated the entire insurance contract. It was not said the parties had actual knowledge of the unseaworthiness, but that they had ‘blind eye knowledge’. Such blind eye knowledge required a positive decision not to look. That was not established, and the appeal failed.
Liability for dishonest assistance requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate, or it may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge.
Lord Scott of Foscote said: ‘Blind-eye’ knowledge approximates to knowledge. Nelson at the battle of Copenhagen made a deliberate decision to place the telescope to his blind eye in order to avoid seeing what he knew he would see if he placed it to his good eye. It is, I think, common ground – and if it is not, it should be – that an imputation of blind-eye knowledge requires an amalgam of suspicion that certain facts may exist and a decision to refrain from taking any step to confirm their existence.’
Lord Hobhouse observed: ‘The logic is simple. The fraudulent insured must not be allowed to think: if the fraud is successful, then I will gain; if it is unsuccessful, I will lose nothing.’
As to the Litsion Pride case, Lord Hobhouse said: ‘The particular claim was only fraudulent in so far as the broker had not been truthful in dealing with the insurers at that stage. The reasoning adopted by Hirst J has been criticised both by academic writers and by other judges in later cases. I consider that it should not any longer be treated as a sound statement of the law. . . In so far as it is based upon the principle of the irrecoverability of fraudulent claims, the decision is questionable upon the facts since the actual claim made was a valid claim for a loss which had occurred and had been caused by a peril insured against when the vessel was covered by a held covered clause.’

Lord Steyn Lord Hoffmann Lord Clyde Lord Hobhouse of Wood- borough Lord Scott of Foscote
Times 23-Jan-2001, [2001] 1 All ER 743, [2001] 2 WLR 170, [2001] UKHL 1, [2003] 1 AC 469
House of Lords, Bailii
Marine Insurance Act 1906 39(5) 35(2)
England and Wales
Citing:
CitedThomas v Tyne and Wear SS Freight Insurance Association 1917
For an insurer to set up a defence under claim for the loss of a ship on the grounds of the unseaworthiness of the vessel, the unseaworthiness must have been causative of the relevant loss. . .
CitedStandard Oil Co of New York v Clan Line Steamers HL 1924
A ship sank with the entire loss of the cargo. The cargo owners sought damages from the owners, saying that the ship was unseaworthy. The ship was of an unusual construction, requiring a certain amount of water ballast to be mainatined for the ship . .
CitedThe Gloria 1935
‘I think that if it were shown that an owner had reason to believe that his ship was in fact unseaworthy, and deliberately refrained from an examination which would have turned his belief into knowledge, he might properly be held privy to the . .
Appeal fromManifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Another CA 23-Jan-1997
The results which would follow from a fraudulent insurance claim should not to be extended similarly to follow from culpable non-disclosure in the absence of fraud. . .
CitedBlack King Shipping Corpn and Wayang (Panama) SA v Massie (The ‘Litsion Pride’) 1985
The LITSION PRIDE was insured against war risks. The terms required of her owners, notice as soon as practicable of her entry into specified war zones and then to pay an additional premium. The owners traded her into a war zone without giving . .

Cited by:
CitedAgapitos and Another v Agnew and others CA 6-Mar-2002
Insurers resisted a claim saying that fraudulent acts of the defendants to promote an otherwise valid claim, made the entire claim void. The insurance required certificates to be obtained before ‘hot’ works were undertaken as part of the ship’s . .
CitedDrake Insurance Plc v Provident Insurance Plc ComC 3-Feb-2003
A driver caused an accident, and the claimant insurance company paid out. It now sought a contribution from the defendant, who had also insured the driver, but had denied liability. The driver was a named additional driver under the second policy, . .
CitedAXA 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 . .
CitedBarlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedFairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .

Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Leading Case

Updated: 11 November 2021; Ref: scu.83379

Bogdanic v The Secretary of State for The Home Department: QBD 29 Aug 2014

The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the 2002 Order. That Order was now said to be ineffective.
Held: The appeal failed. On its true construction, the relevant text in the Commencement Order was to be read as including by clear implication additional wording to indicate that the 2002 Act amendments also apply in relation to immigration control zones.
Sales J said: ‘in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument.’ and ‘For the purposes of the principle in Inco Europe, it is only if the legislative instrument has a clear, objectively assessed meaning, having regard to all the circumstances and all indicators of the legislator’s intention available to the person subject to the law (assisted as necessary by his legal advisers), and that meaning is contrary to the literal meaning of the text of the instrument, that it will be appropriate for the Court to give a rectifying interpretation to the instrument. ‘

Sales J
[2014] EWHC 2872 (QB), [2014] WLR(D) 401
Bailii, WLRD
Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002 (Commencement No. 1) Order 2002, Nationality, Immigration and Asylum Act 2002
England and Wales
Citing:
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedFothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
CitedSecretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
CitedPublic and Commercial Services Union, Regina (on The Application of) v Minister for The Civil Service Admn 10-May-2010
The Union challenged by way of judicial review proposed changes to the Civil Service Compensation Scheme, saying that it removed accrued rights.
Held: The benefits under the scheme were fully legal entitlements and were protected. They were an . .
CitedBroniowski v Poland ECHR 22-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of P1-1 ; Just satisfaction reserved ; Costs and expenses partial award – Convention . .
CitedThe Pollen Estate Trustee Company Ltd and Another v HM Revenue and Customs CA 26-Jun-2013
The court was asked ‘If a charity acquires property in furtherance of its charitable purposes, or as an investment, it is entitled to relief against liability to pay stamp duty land tax (SDLT) on the purchase price.’
Held: The modern approach . .
CitedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedThe Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions CA 25-Jun-2003
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the . .
CitedTuck and Sons v Priester 1887
A person should not be penalised except under a clear law: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedKelly and others Regina (on the Applications of) v Secretary of State for Justice CA 12-Mar-2008
Each appellant had been sentenced to five years imprisonment, but then released on conditional licence after the expiry of three quartes of the sentence. They now challenged whether the extension of the licence period until sentence expiry was . .
CitedRegina v PD and EB CACD 8-Sep-2011
(Iraq Sanctions) The court was asked as to the manner in which Security Council Resolutions relating to the arms trade are implemented in the domestic law of the United Kingdom under the United Nations Act 1946.
Held: Laws LJ, rejecting an . .
CitedDowds v Regina CACzD 22-Feb-2012
The defendant appealed against his conviction for murder, saying that he should have been allowed to rely on a plea of diminished responsibility given the changes to section 2 of the 1957 Act introduced in 2009. He said that his alcoholism should . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Transport, Constitutional

Updated: 11 November 2021; Ref: scu.536541

British Airways Plc v Williams and Others: CA 3 Apr 2009

The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the actual pay excluded bonus rates. The company said that the special regulations applicable to the Aviation industry did not make such a provision.
Held: The Regulations could have set the meaning or ordinary pay by reference to the pay he could expect while working. They had not. The ERA had set out calculations but for a different context. The company’s appeal succeeded.

Rimer, Lloyd, Ward LjJ
[2009] EWCA Civ 281, Times 28-Apr-2009, [2009] IRLR 491, [2009] ICR 906
Bailii
Civil Aviation (Working Time) Regulations 2004 4, Employment Rights Act 1996 221 222 223 8224, Working Time Directive 1993 (93/104/EC) of 23 November 1993
England and Wales
Citing:
CitedRobinson-Steele v RD Retail Services Ltd; Clarke v Frank Staddon Ltd and similar ECJ 16-Mar-2006
The employers used a system of ‘rolled up’ holiday pay, so that staff received a sum equivalent to holiday pay throughout the year.
Held: Such a system was not in accordance with the Working Time Directive. The directive required that there . .
Appeal fromBritish Airways Plc v Williams and others EAT 28-Feb-2008
EAT Working Time Regulations: Holiday Pay
Civil Aviation (Working Time) Regulations – whether the annual leave pay of airline pilots should be calculated by reference to their basic salary or their basic . .
CitedS and U Stores Ltd v Wilkes NIRC 1974
The tribunal was asked as to the determination of an employee’s ‘average weekly rate of remuneration’ in a particular period of 12 weeks for the purpose of calculating a redundancy payment, and whether a weekly sum which the employee was paid to . .
CitedBritish Airways (European Operations at Gatwick) Ltd v Moore and Botterill EAT 20-Jan-2000
EAT Maternity Rights and Parental Leave – (no sub-topic). . .
CitedStringer and Others v Her Majesty’s Revenue and Customs ECJ 24-Jan-2008
Europa Directive 2003/88/EC Organisation of working time Article 7 – Right to a minimum period of paid annual leave Entitlement to an allowance in lieu Fundamental social rights in Community law Grant of annual . .
CitedS and U Stores Ltd v Wilkes NIRC 1974
The tribunal was asked as to the determination of an employee’s ‘average weekly rate of remuneration’ in a particular period of 12 weeks for the purpose of calculating a redundancy payment, and whether a weekly sum which the employee was paid to . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
CitedDellas, Confederation generale du travail, Federation nationale des syndicats des services de sante et des services sociaux CFDT, etc v Ministre des Affaires sociales, du Travail et de la Solidarite ECJ 1-Dec-2005
ECJ Social policy – Protection of the safety and health of workers – Directive 93/104/CE – Concept of -working time – Scope – National legislation providing for a ceiling more favourable to workers, in particular . .
CitedD Bamsey and others v Albon Engineering and Manufacturing Plc CA 25-Mar-2004
The applicants worked under an arrangement where they received considerable payments additional to their basic pay for compulsory overtime, but the holiday pay was calculated by the employer on the basic pay.
Held: The 1998 Regulations were . .
CitedLandeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .

Cited by:
Appeal fromBritish Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .

Lists of cited by and citing cases may be incomplete.

Employment, Transport

Updated: 11 November 2021; Ref: scu.329537

OBB-Personenverkehr AG: ECJ 14 Mar 2013

ECJ (Opinion) Regulation (EC) No 1371/2007 on rail passengers rights and obligations – Article 17 – Conditions for ticket price compensation in case of delay, missed connections and cancellations – Compensation precluded for delays caused by force majeure – Article 30 – Powers of a national body charged with enforcement of Regulation No 1371/2007 – Whether Article 30 of Regulation No 1371/2007 authorises the national body to order railway undertakings to alter compensation terms that do not comply with Regulation No 1371/2007 – Legal effects of European Union regulations – Principle of effet utile – Meaning of ‘court or tribunal’ under Article 267 TFEU – General principles of EU law – Duties and powers of Member State administrative authorities to issue remedies when compared with Member State courts and tribunals

Jaaskinen AG
C-509/11, [2013] EUECJ C-509/11
Bailii
Regulation (EC) No 1371/2007
European
Cited by:
See AlsoRe OBB-Personenverkehr AG ECJ 26-Sep-2013
Regulation (EC) No 1371/2007 – Rail passengers’ rights and obligations – Article 17 – Compensation in the event of a delay – Excluded in the event of force majeure – Whether permissible – First subparagraph of Article 30(1) – Powers of the national . .

Lists of cited by and citing cases may be incomplete.

Transport

Updated: 11 November 2021; Ref: scu.471908