Category: Transport

The Athanasia Comninos: 1990

Two ships carrying coal to Birkenhead suffered explosions. The parties disputed the respective roles of the time charterer, the shipper, as to responsibility for an indemnity on damages.
Held: The shipper was a named party to and liable on the contract. That was unaffected by the contractual position of the charterers.
Mustill J said: ‘There still remains the problem of identifying the boundary between those risks which the shipowner contracts to bear and those which he does not. One possibility is to draw the line by reference to the proper method of carriage. According to this view, a shipowner who consents to carry goods of a particular description contracts to perform the carriage in a manner appropriate to goods of that description, and thereby assumes all risks of accidents attributable to a failure to carry in that manner.
This is an attractive proposition, for it neatly solves the question of degree to which I have referred, and enables attention to be concentrated on the means adopted to carry the goods. If the carrier proves that he has used the appropriate means, the claim succeeds, without his having to engage in the often difficult tasks of establishing the precise character of the goods, and the precise respects and degree in which they deviated from the norm. Conversely, if his performance has fallen short of what is appropriate, in a manner which is causative of the loss, his claim must fail. This approach also has the theoretical merit of keeping attention focused on the carriage of the goods, which is the subject-matter of the contract from which the liability of both parties mainly, if not exclusively, arises.
This approach will be sufficient to deal with most problems relating to dangerous cargoes, for in respect of the great majority of goods, the normal precautions will suffice to eliminate the risk of carrying normal goods of the description stated in the contract. Leaving outside casualties from wholly extraneous causes, one can say that proper carriage and dangerous nature are opposite sides of the same coin.
There are, however, cases to which this simple analysis cannot be applied: i.e. those where the nature of the goods is such that even a strict compliance with the accepted methods of carriage will not suffice to eliminate the possibility of an accident. Whether consciously or not, seafarers and those who advise them have chosen to adopt methods of carriage which involve an element of risk. No doubt the risk could be eliminated, if those concerned were to provide complex equipment, and enforce rigorous standards of performance. But for practical reasons, they do not. The existence of this gap between acceptable carriage and safe carriage means that there may be cases where an accident is due, neither to the unusual cargo, nor to any short-comings in the carrier, but to simple bad luck.
Who is to bear the risk of accidents falling into this category? In my judgment, the risk must fall on the carrier. By contracting to carry goods of a specified description, he assents to the presence on his ship of goods possessing the attributes of the goods so described; and in the case under discussion, those attributes include the capacity to create dangers which the accepted methods are not always sufficient to overcome.’

Judges:

Mustill J

Citations:

[1990] 1 Lloyds Rep 277

Jurisdiction:

England and Wales

Cited by:

Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 20 May 2022; Ref: scu.462942

Odfjfell Seachem A/S v Continentale Des Petroles Et D’Investissements and Another: ComC 15 Dec 2004

Application by the Claimants for summary judgment pursuant to CPR Part 24 upon the grounds that the Defendants have no real prospect of successfully defending the claim.

Judges:

Nigel Teare QC

Citations:

[2004] EWHC 2929 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 20 May 2022; Ref: scu.331184

Johnson And Another v Chapman: 10 Jul 1865

Deck-cargo {timber) lawfully laden pursuant to charterparty, having broken adrift in consequence of stormy weather, and impending the navigation and endangering the safety of the vessel, was necessarily thrown overboard.
Held: that the shipper was entitled to claim general average in respect thereof, as against the ship-owner.

Judges:

Cockburn CJ

Citations:

[1865] EngR 665, (1865) 19 CB NS 563, (1865) 141 ER 907

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Versloot 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 . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 20 May 2022; Ref: scu.281577

Channel Airways Ltd v Manchester Corporation: 1974

There are many species of lien which do not depend on possession, including for example certain equitable liens. The statutory right of detention but conferred by a Private Act was not strictly a lien.

Judges:

Forbes J

Citations:

[1974] 1 Lloyd’s Rep 456

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 19 May 2022; Ref: scu.181063

Regina (Jet Services Ltd) v Civil Aviation Authority: CA 1 May 2001

An operator who negotiated deals between bonded agents, but did not itself conclude a contract, did not require an Air Travel Operator’s Licence. It transmitted the purchase price through a separate account used only for this purpose. The regulations however only caught those who made accommodation available, and no extent of purposive construction could extend that phrase to catch the operator’s service. At its highest, the company could be described as assisting the principal, or facilitating the acquisition of flight accommodation. The fact that the company’s intervention led to a break in the chain of security protecting the consumer was not enough.

Judges:

Lord Phillips MR, Peter Gibson and Latham LJJ

Citations:

Times 15-May-2001, Gazette 14-Jun-2001, [2001] EWCA Civ 610, [2001] 2 All ER (Comm) 769, [2001] All ER (D) 08

Links:

Bailii

Statutes:

Civil Aviation (Air Travel Organisers’ Licensing) Regulations 1995 (1995 No 1054)

Jurisdiction:

England and Wales

Transport, Licensing

Updated: 19 May 2022; Ref: scu.85980

Regina v Secretary of State for the Environment, Transport, and the Regions, Ex Parte International Air Transport Association: QBD 3 Jun 1999

The Association sought judicial review to challenge the 1998 Order.
Held: Where an EC regulation was properly completed, it was valid even though different member states had, before joining the EC, had subscribed to International Treaties inconsistent with the Regulation, but were not bound by it because of such subscription.

Judges:

Jowitt J

Citations:

Times 03-Jun-1999, [1999] EWHC Admin 333, [1999] COD 315, [2000] 1 Lloyds Rep 242, [1999] Eu LR 811, [1999] 2 CMLR 1385

Links:

Bailii

Statutes:

Council Regulation 2027/97, EC Treaty 234, Warsaw Convention 1929, Air Carrier Liability Order 1998, Council Regulation (EC) Number 2027/97

Citing:

See Also – Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association Admn 6-Nov-1998
. .
Leave – Regina v Secretary of State for Environment Transport and Regions ex parte International Air Transport Association Admn 21-Apr-1999
. .
Lists of cited by and citing cases may be incomplete.

European, Transport

Updated: 19 May 2022; Ref: scu.85507

Handelsveem Bv and Others v Coreck Maritime GmbH: ECJ 1 Dec 2000

When a court looked at a choice of the jurisdiction clause, it was not necessary that the clause should withoutmore establish the jurisdiction. A clause could be effective where the forum will be ascertainable at the time by reference to a the circumstances. In this case of the clause required a dispute under a bill of lading to be decided in the country where the carrier had his principal place of business. The requirement under the convention, that the parties should have should of ‘agreed’ the jurisdiction was satisfied where they had agreed a method of establishing it. The Brussels convention applied only if, first, at least one of the parties to the original contract was domiciled in the contracting state and, second, the parties agreed to submit any dispute before the Court of a contracting state.
‘The Court has held that, by making the validity of a jurisdiction clause subject to the existence of an ‘agreement’ between the parties, article 17 of the Convention imposes on the court before which the matter is brought the duty of examining first whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by article 17 is to ensure that consensus between the parties is in fact established . . ‘

Citations:

Times 01-Dec-2000, C-387/98, [2000] ECR I-9337, [2000] EUECJ C-387/98

Links:

Bailii

Cited by:

Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Transport, European

Updated: 19 May 2022; Ref: scu.81216

Grand Duchy of Luxembourg v Linster and Others: ECJ 19 Sep 2000

Where a road or other development project would have a substantial impact on the environment, a law passed by a member state authorising the construction to proceed but which was in the absence of an impact assessment, was not in compliance with the Directive. It was not possible to bypass the procedure by use of special statutory powers. The Directive did not apply where its purposes were satisfied by a statutory process, but that implied the need for that process to produce a similar investigation.

Citations:

Times 05-Oct-2000, [2000] ECR I-6917, [2000] EUECJ C-287/98

Links:

Bailii

Statutes:

Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment

Jurisdiction:

European

Cited by:

Cited – HS2 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.

Environment, Transport

Updated: 19 May 2022; Ref: scu.80973

Glencore Grain Ltd v Flacker Shipping Ltd: QBD 25 Jan 2001

A ship’s captain was, under standard Syncomex contract terms, to arrive in port and then to give notice that the cargo was available for collection. He gave the notice before arriving. The owners’ claim for demurrage failed because it depended upon such notice having been given, as a condition precedent. The notice was invalid. Lay-time could not commence to run until a notice had been given. The carrier who was to collect the cargo was not empowered to waive the requirement or vary the charter agreement.

Judges:

Langley J

Citations:

Times 22-Feb-2001, [2001] EWHC 503 (Comm), [2001] 1 Lloyds Rep 754

Links:

Bailii

Cited by:

Appeal from – Flacker Shipping Ltd v Glencore Grain Ltd (Happy Day) CA 15-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 19 May 2022; Ref: scu.80867

Clarke (Inspector of Taxes) v Perks; MacLeod (Inspector of Taxes) v Same; Guild (Inspector of Taxes) v Newrick and Another: ChD 3 May 2000

The relief of foreign earnings given to those working as seafarers, did not apply to those working on a jack-up drilling rig with floating hull, and retractable legs., since this was not a ship. Being a seafarer involved the performance of duties on a ship. Definition in other acts suggested a vessel used in navigation. These rigs were without propulsion. Other decisions indicated the need for it to be used for navigation.

Citations:

Times 03-May-2000, Gazette 11-May-2000

Statutes:

Income and Corporation Taxes Act 1988 193 Sch 12

Cited by:

Appeal from – Perks and Others v Clark and Others CA 27-Jul-2001
Workers on North Sea drilling rigs which were capable of being moved, claimed relief as seafarers, since they were employed on a ship. The first instance court said the rigs were not ships. They appealed.
Held: The word ‘ship’ is an ordinary . .
Lists of cited by and citing cases may be incomplete.

Transport, Income Tax

Updated: 19 May 2022; Ref: scu.79200

Caspian Basin Specialised Emergency Salvage Administration and Another v Bouygues Offshore Sa and Others; Ultisol et Cetera v Same (4): AdCt 3 Jul 1997

Liability under a claim can be limited by the court under the Act even before liability has itself been decided. Shipping – declaration limiting liability – prior to admission of liability -permissible – article 2.1 – scope – misrepresentation – monetary claims – declaration of limitation – no admission of liability – stay – prejudice to proceedings in foreign jurisdiction.

Citations:

Times 03-Jul-1997, Gazette 17-Sep-1997, [1997] 2 Lloyd’s Rep 507, [1997] CLC 1463

Statutes:

Merchant Shipping Act 1995, Merchant Shipping Act 1979, Convention on Limitation of liability for Maritime Claims 1976 A2.1

Jurisdiction:

England and Wales

Transport

Updated: 19 May 2022; Ref: scu.78938

Biggin Hill Airport Ltd v Bromley London Borough Council: ChD 9 Jan 2001

Applicants sought the right to fly from the airport. Local residents sought to intervene on the basis that if the lease controlling such rights was construed in such a way as to allow such an extension, this would interfere with their human rights. The lease had to be construed against the factual background as at the time it was entered into, and the Act could not affect that interpretation, and there was no basis for implying any such term into the lease. The local authority was not acting unlawfully in granting a declaration in the terms it proposed.

Citations:

Gazette 18-Jan-2001, Times 09-Jan-2001

Statutes:

Human Rights Act 1998

Landlord and Tenant, Human Rights, Transport

Updated: 18 May 2022; Ref: scu.78394

Mediolanum Shipping Co v Japan Lines Ltd (“The Mediolanum”): CA 1984

The charterers had contracted to provide and pay for fuel. They ordered her to a safe port but she was directed to an unsafe place in that port by the refinery with whom the charterer had contracted for the supply of bunkers. The court was asked to construe the safe port warranty.
Held: The charterer was not in breach of the safe port warranty because even on the assumption that the refinery’s authority as agent extended to designating a bunkering place, it was not at fault in designating this particular bunkering place.
However, Kerr LJ said: ‘Although, in relation to the charterers, the refinery was in the position of an independent contractor, we naturally accept that for the purposes of the charterers’ obligation, under clause 2 of the charter-party, to provide the fuel, the refinery was the agent of the charterers as between the charterers and the owners. The reason is that, in that respect, the refinery was used by the charterers in order to perform one of the charterers’ obligations under the contract.’

Judges:

Kerr LJ

Citations:

[1984] 1 Lloyds Rep 136

Jurisdiction:

England and Wales

Cited by:

Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . .
Cited – NYK Bulkship (Atlantic) NV v Cargill International SA CA 8-Apr-2014
The court was asked as to ‘the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the . .
Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa SC 11-May-2016
The ship ‘Global Santosh’ had been arrested as a side issue in a dispute as to its cargo between its anticipated receiver and a sub-sub charterer.
Held: (Lord Clarke dissenting) The appeal succeeded. Any responsibility of Cargill under the . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 18 May 2022; Ref: scu.616909

Richmond Shipping v D/S and A/S Vestland (“The Vestland”): 1980

The court was asked whether the charterer was in breach of a positive obligation imposed on him by the charter.

Citations:

[1980] 2 Lllyds Rep 171

Jurisdiction:

England and Wales

Cited by:

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

Transport

Updated: 18 May 2022; Ref: scu.616910

Adelfamar SA v Silos e Mangimi Martini Spa (“the Adelfa”): 1988

Judges:

Evans J

Citations:

[1988] 2 Lloyd’s Rep 466

Jurisdiction:

England and Wales

Cited by:

Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . .
Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 18 May 2022; Ref: scu.616913

The Mozart: 1985

C took a charter of the Mozart from O, to carry coal from Port Arthur to Rotterdam. A conveyor belt failed in loading causing delay. O claimed demurrage. C had not given notice of the breakdown or claimed a deduction of time. C now appealed against the arbitral award to O.
Held: The stoppage was not the fault of C even though it occurred on its side of the arrangement. The requirement for due notice did refer to a notice under the charterparty, it did not import an element that it was to be relied upon for demurrage. O was well aware of the circumstances, and therefore C was not obliged to inform C.

Judges:

Mustill J

Citations:

[1985] 1 Lloyds Rep 239

Jurisdiction:

England and Wales

Transport

Updated: 18 May 2022; Ref: scu.616912

The “Goodpal”: 2000

The court dealt with the apportionment of claims under the Interclub NYPE Agreement

Citations:

[2000] 1 Lloyd’s Rep 638

Jurisdiction:

England and Wales

Cited by:

Cited – NYK Bulkship (Atlantic) NV v Cargill International SA CA 8-Apr-2014
The court was asked as to ‘the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the . .
Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa SC 11-May-2016
The ship ‘Global Santosh’ had been arrested as a side issue in a dispute as to its cargo between its anticipated receiver and a sub-sub charterer.
Held: (Lord Clarke dissenting) The appeal succeeded. Any responsibility of Cargill under the . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 18 May 2022; Ref: scu.617003

The Walter D Wallet: 1893

The vessel was arrested by a defendant who had been, but no longer was, a part owner of the vessel, having forgotten or forgotten the importance of that fact.
Held: Procuring the wrongful arrest of a ship can found a cause of action similar to malicious prosecution.
Sir Francis H. Jeune P said ‘In the present case, I think that actual damage there was none. I doubt if, as was urged before me, the ship could have been arrested, when she was, by any proper process, though perhaps an injunction to prevent leaving port until the stipulated policies were given, and the stipulated sums paid, could have been obtained. But she was not detained in port by the arrest, nor was her loading interfered with. Still, the action of the defendants was, I think, clearly, in common law phrase, without reasonable or probable cause; in common law phrase, without reasonable or probable cause; or, in equivalent Admiralty language, the result of crassa negligentia, and in a sufficient sense mala fides, and the plaintiffs’ ship was in fact seized. Therefore, I think the plaintiffs must be supposed to have suffered some damage, and I fix that damage at 11.’

Judges:

Sir Francis H. Jeune P

Citations:

[1893] P 202

Jurisdiction:

England and Wales

Cited by:

Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Crawford v Jenkins CA 24-Jul-2014
The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were . .
Cited – Willers 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.

Torts – Other, Transport

Updated: 18 May 2022; Ref: scu.536419

Astro Vencedor Compania Naviera SA v Mabanaft GmbH: CA 1971

For an arbitration clause in a contract between parties to be used to enforce arbitration of a tortious claim, the tortious claim must arise out of the contractual matters. In this case damages were sought for the wrongful arrest of a ship in consequence of an alleged breach of the contract.
Lord Denning MR said: ‘The arrest of the ship was the direct consequence of the charterers’ claim for damages against the shipowners. . The arrest was simply the follow-up to that claim. It was so closely connected with it that the rightness or wrongness of the arrest is also within the scope of the arbitration. This is borne out by the practice of the Admiralty Court. There have not been many claims for wrongful arrest recently. But the practice of the Court of Admiralty is to deal with a claim for wrongful arrest at the same time as the claim for which the arrest was made. In The Evangelismos . . the Privy Council said that such procedure is very ‘convenient’.’

Judges:

Lord Denning MR

Citations:

[1971] Lloyd’s R 502, [1971] 2 QB 588

Cited by:

Cited – S Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Transport

Updated: 18 May 2022; Ref: scu.375637

Knight v Cambridge: 1795

If the master of a sbip, intending to avoid the payment of port duties, attempt to run her out of port, and is stopped, and the ship thereby forfeited, this is barratry in the master, and renders the underwriter of the ship liable, within the terms of a policy insuring against the barratry of the master.

Citations:

[1795] EngR 2308, (1795) 8 Mod 229, (1795) 88 ER 165 (B)

Links:

Commonlii

Transport, Insurance

Updated: 18 May 2022; Ref: scu.354653

The Sea Insurance Company Of Scotland v Gavin, And Others: SCS 1829

Under a policy insuring a brigantine ” at and from L. to S., and thence to ‘Barcelona, and at and from thence and two other ports in Spain, to a ‘port in Great Britain : ‘–held, that Saloe, a place lying in a bay, having warehouses and a jetty, with a depth of water sufficient for feluccas, but not for large ships, and a good roadsted anchorage where ships lie and are loaded by means of small craft ; having also a custom-house and officers is a ”port’ within the meaning of the policy.

Citations:

[1829] EngR 244, (1829) 4 Bligh NS PC 578, (1829) 5 ER 206

Links:

Commonlii

Scotland, Transport, Insurance

Updated: 18 May 2022; Ref: scu.322112

Regina, and Francis Hart Dyke, Her Majesty’s Procurator-General v Johann Peter Hildebrandt;The Aline and Fanny: PC 9 Jul 1856

Rule as to the admission of further proof by the Captors [IO Moo. P.C. 197]. By the law of Prize, the evidence, whether to acquit or condemn the ship, must, iri the first instance, come from the ship’s papers and the primary depositions of the master and crew : aud the captors are not, except under circumstances of suspicion arising from the primary evidence, entitled to adduce any intrinsic evidence in opposition.
In a case where no suspicion of an intention to break a blockade appeared from the ship’s papers, or the primary depositions, the Judicial Committee (affirming the interlocutory decree of the Admiralty Court) refused the admission of further proof by the captors to contradict the depositions with respect to the place of capture.
The principle laid down in the Ostee (9 Moore’s P.C. Cases, l57), that a clairnant upon restitution of the ship is entitled to costs and damages from the Captors, only in circumstances where the ship was in no fault, and was not by any act of her own, voluntarily or involuntarily, open to any fair ground of suspicion, approved.

Citations:

[1856] EngR 764, (1856) 10 Moo PC 491, (1856) 14 ER 577

Links:

Commonlii

Jurisdiction:

England and Wales

Transport

Updated: 18 May 2022; Ref: scu.291519

Corbyn v Saunders: 1978

The defendant appealed a conviction for fare evasion, saying that it had been his intention to pay at the end of his journey.
Held: The section references to ‘dishonestly’ and the specific intention ‘to avoid payment’ were not two separate elements in the mens rea of the offence. Woolf LJ said: ‘It is clear from the first clause of section 5(3)(a) that the traveller is not to travel on the railway without paying the fare for the intended journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, ie, payment of the proper fare before he begins his journey.’

Judges:

Cummin-Bruce J, Woolf LJ

Citations:

[1978] 1 WLR 400

Statutes:

Regulation of Railways Act 1889 5(3)

Crime, Transport

Updated: 18 May 2022; Ref: scu.276465

Atkins v Wrekin District Council and Another: ECJ 11 Jul 1996

A concessionary fares scheme did not fall within the scope of sex discrimination laws. Equal treatment of men and women – Concessionary fares on public passenger transport services – Scope of Directive 79/7/EEC – Link with retirement age.
ECJ On a proper interpretation of Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a scheme under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.
First, a benefit consisting of concessionary fares on public passenger transport services does not afford direct and effective protection against one of the risks listed in Article 3(1) and the fact that the recipient of a benefit is, as a matter of fact, because of his age, in one of the situations envisaged by that article does not suffice to bring that benefit as such within the scope of the Directive.
Secondly, it cannot be concluded from the fact that, besides referring to the field of social security, Article 1 of Directive 79/7 refers to other elements of social protection provided for in Article 3 and that Article 3(1)(a) refers to statutory schemes which provide protection against the risks listed, without specifying that those schemes must fall under social security, that the scope of the Directive extends to social protection as a whole, and consequently to measures such as the said concessionary fares. In view of the unequivocal terms of the title of Directive 79/7, the various recitals in its preamble and Article 1 thereof, which all state that the Directive is intended to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security, the reference to other elements of social protection provided for in Article 3 cannot be interpreted otherwise than as referring to provisions concerning social assistance, which generally fall outside the area of social security but fall within the scope of the Directive pursuant to Article 3(1)(b) where they are intended to supplement or replace the schemes referred to in Article 3(1)(a).

Judges:

G.C. Rodriguez Iglesias, P

Citations:

Times 02-Aug-1996, C-228/94, [1996] EUECJ C-228/94

Links:

Bailii

Statutes:

Transport Act 1985 93(7), Directive 79/7/EEC

Discrimination, European, Transport

Updated: 17 May 2022; Ref: scu.77938

Vehicle Inspectorate v Bruce Cook Road Planing Ltd and Another: HL 8 Jul 1999

The transport of motorway maintenance vehicles and plant to and from sites on the back of a low loader is not sufficiently closely connected with the use of such machines on the motorways, to attract exemption as for such use from the general regulation of transport, including in particular, the need for the use of tachograph recording of drivers hours.

Judges:

Lord Slynn of Hadley, Lord Jauncey of Tullichettle, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hobhouse of Wood-borough

Citations:

Times 26-Oct-1999, Gazette 03-Nov-1999, [1999] UKHL 34, [1999] 4 All ER 761, [1999] 1 1907

Links:

House of Lords, House of Lords, Bailii

Statutes:

EEC Regulation 3821/85 15(2), Transport Act 1968 97(1)(a)(iii)

Jurisdiction:

England and Wales

Citing:

Cited – Licensing Authority South Eastern Traffic Area v British Gas plc ECJ 25-Jun-1992
Europa The derogation from the requirement to install and use a tachograph in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, laid down for vehicles used in . .
Cited – Swain v McCaul and Others QBD 11-Jul-1996
A lorry used for delivering skips was not used for refuse collection and was subject to the tachograph regime. The providing of skips for rubbish was a purely commercial enterprise not carried out for a public authority. . .
Appeal from – Vehicle Inspectorate v Bruce Cook Road Planing Ltd and Another Admn 18-Feb-1998
The transport of road maintenance vehicles from one site to another was not itself part of highway maintenance and a tachograph was required. . .
Cited – Firma Stadtereinigung K. Nehlsen KG v Freie Hansestadt Bremen ECJ 6-Dec-1979
Transport – common policy – social provisions – regulation no 543/69 of the council – material scope – vehicles of public authorities – exclusion – vehicles of a private undertaking used to perform a public service – inclusion (regulation no 543/69 . .
Cited – Regina v Thomas Scott and Sons Bakers Ltd 1984
In the field of road transport, Community social legislation ‘aims at the harmonisation of conditions of competition between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and road . .
Cited – Amtsgericht Reckinghausen (Germany) v Mrozek and Jager ECJ 21-Mar-1996
Europa Transport – Road transport – Social legislation – Derogations – Vehicles used in refuse collection and disposal – Definition (Council Regulation No 3820/85, Art. 4(6)) 2. Transport – Road transport – . .

Cited by:

Appealed to – Vehicle Inspectorate v Bruce Cook Road Planing Ltd and Another Admn 18-Feb-1998
The transport of road maintenance vehicles from one site to another was not itself part of highway maintenance and a tachograph was required. . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 17 May 2022; Ref: scu.159017

W. Angliss v Peninsular and Oriental Steam Navigation Co: 1927

Wright J held: ‘The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the liability of common carriers, were free by contract to vary and limit their liabilities. In particular, the Acts have expressly abolished the previous absolute obligation to provide a seaworthy ship and have substituted an obligation to use due diligence to that effect. The carrier may not be the owner of the ship, but merely the charterer; he may not have contracted for the building of the ship, but merely have purchased her, possibly years after she has been built. In the two latter cases the builders and their men cannot possibly be deemed to have been the agents or servants of the carrier and it is illogical that there should be such difference in the carrier’s obligations merely because he has bought the ship by the method of contracting with the builders to build it for him. In addition, if the carrier were held liable for the bad workmanship of the builders’ men, he might equally be held liable for bad workmanship by the men employed by the various sub-contractors who supply material for the builders, such as steel-workers in furnaces and rolling mills, or who supply special articles such as castings, pumps or proprietary machines, which would involve an almost unlimited retrogression.’

Judges:

Wright J

Citations:

[1927] 1 KB 456

Cited by:

Cited – Parsons Corporation and others v CV Scheepvaartonderneming ‘Happy Ranger’ ComC 9-Feb-2006
A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 17 May 2022; Ref: scu.252502

The Coral: CA 1993

Judges:

Beldam LJ

Citations:

[1993] 1 Lloyds Rep 1

Statutes:

Hague-Visby Rules A2

Jurisdiction:

England and Wales

Citing:

Applied – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 16 May 2022; Ref: scu.219884

Anderson v Martin: 1907

Takings at sea had been covered and the subjects of marine insurance–ships and cargoes–are properly treated as objects of war to be taken in prize or by way of reprisal: this was the meaning of the word ‘capture’ in marine insurance policies.

Citations:

[1907] 2 KB 253

Jurisdiction:

England and Wales

Cited by:

Cited – Kuwait Airways Corporation and Another v Kuwait Insurance Company SAK and others HL 11-Mar-1999
The airline’s airplanes were taken in the invasion of Kuwait. The company sought to claim on its insurance.
Held: This was a matter of construing the particular terms of the insurance contracts. As regards the claims under the insurance . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 16 May 2022; Ref: scu.190117

The Ot Sonja: CA 1993

The time limit under the Rules applied where goods had not been loaded and that time would start to run from the date when the goods ought to have been delivered.

Citations:

[1993] 2 Lloyds Rep 435

Statutes:

Hague Visby Rules

Jurisdiction:

England and Wales

Cited by:

Cited – Trafigura Beheer Bv v Golden Stavraetos Maritime Inc CA 15-May-2003
The owners of cargo claimed damages from the carriers for a cargo of jet oil rejected at the port of destination because of contamination suffered on board.
Held: In interpreting the rules, the court must adopt a process of construction which . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 16 May 2022; Ref: scu.182896

Kum and Another v Wah Tat Bank Ltd: HL 1971

‘Negotiable’, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a better title than the transferor has got, but it can by endorsement and delivery give as good a title. The bill of lading obtains its symbolic quality from the commercial custom which makes bills of lading ‘negotiable and transferable’ by endorsement and delivery or transmission.
Lord Devlin said:
‘It is well settled that ‘Negotiable’, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a better title than the transferor has got, but it can by endorsement and delivery give as good a title. But it has never been settled whether delivery of a non-negotiable bill of lading transfers title or possession at all. The bill of lading obtains its symbolic quality from the custom found in Lickbarrow v. Mason and that is a custom which makes bills of lading ‘negotiable and transferable’ by endorsement and delivery or transmission. To the same effect the Bills of Lading Act, 1855, recites that a bill of lading is by the custom of merchants ‘transferable by endorsement’. There appears to be no authority on the effect of a non-negotiable bill of lading. This is not surprising. When consignor and consignee are also seller and buyer, as they most frequently are, the shipment ordinarily serves as delivery (Sale of Goods Act, 1893, sect. 32(1) and also as an unconditional appropriation of the goods (sect. 18, rule 5(2)) which passes the property. So as between seller and buyer it does not usually matter whether the bill of lading is a document of title or not.’

Judges:

Lord Devlin

Citations:

[1971] AC 439, [1971] 1 Lloyd’s Rep 439

Jurisdiction:

England and Wales

Cited by:

Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 May 2022; Ref: scu.181891

The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’: ComC 2000

Judges:

Colman J

Citations:

[2000] 1 Lloyd’s Rep 85

Cited by:

Appeal from – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ CA 23-Jan-2001
. .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 16 May 2022; Ref: scu.180512

The Okehampton: CA 1913

The plaintiff, sub-charterer of the Okehampton had issued bills of lading under their own name. They sought to recover their loss of freight from the defendants who were owners of a third party vessel which, by negligence, had sunk the Okehampton.
Held: they had a sufficient possessory interest in the Okehampton to do this: ‘I think that it may be inferred as a matter of fact that the goods were in the possession of the [plaintiffs], the contracting carriers, performing their contract by means of a hired ship, so long as they were discharging their obligation with regard to the payment of hire; but the passage cited from Pollock and Wright on Possession in the Common Law, at p.166 par.4 is, I think quite sufficient authority for saying that even if the shipowners had possession so as to make them sub-bailees to [the plaintiffs], such bailment was revocable at pleasure, and there was no adverse right in the shipowners, so long as the time-hire was paid by [the head charterers]. Accordingly, there was interest enough in the plaintiffs to entitle them to bring this action.’ The court must construe the whole instrument before it in its factual context, and cannot ignore the terms of the contract. But it must seek to give effect to the contract as intended, so as not to frustrate the reasonable expectations of businessmen. If an obviously inappropriate form is used, its language must be adapted to apply to the particular case.

Judges:

Hamilton LJ

Citations:

[1913] P 173

Jurisdiction:

England and Wales

Contract, Transport

Updated: 16 May 2022; Ref: scu.180646

Gilroy Sons and Co v W R Price and Co: HL 21 Nov 1892

A bill of lading exempted the shipowner from liability for ‘any act, neglect, or default whatsoever of pilots, master, or crew in the navigation of the ship in the ordinary course of the voyage.’ A cargo shipped thereunder was damaged by the absence of casing on the pipe of a water-closet, which was broken by the pressure of the cargo in rough weather. The master and crew had before the commencement of the voyage removed the casing, and considered it unnecessary to replace it, trusting to other means for the protection of the pipe. According to usual practice in jute-carrying vessels, such a pipe is cased before the cargo is loaded and the ship starts on her voyage. After the vessel was loaded the pipe in question was not visible or accessible without the removal of part of the cargo.
In an action at the instance of the onerous indorsee of the bill of lading against the owners- held ( rev. the decision of the Second Division) that without casing on the pipe, the vessel was not in a condition to carry her cargo with reasonable safety, and as this defect ought to have been remedied before the voyage began, it was a breach of the implied warranty of seaworthiness on the part of the shipowner, who was accordingly not protected by the terms of the bill of lading.

Judges:

Lord Chancellor (Herschell), and Lords Watson, Halsbury, Morris, and Field

Citations:

[1892] UKHL 169, 30 SLR 169

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 16 May 2022; Ref: scu.634562

Boson v Sandford and Others: 1629

A shipper of goods sued the ship owner for damage caused by the negligence of the master. Eyre J held that there was no difference between a land carrier and a water carrier, and therefore the owners were under a special liability as carriers for the acts of their servants; but Holt CJ rested his judgment on the broad principle that ‘whoever employs another is answerable for him, and undertakes for his care to all that make use of him’.
Both master and part owners of a ship are liable; but part-owners must be joined. Trespass on the case on a special verdict, the case was, A. loaded goods in good plight on board a ship, which commonly carried goods in safety from Topsham to London, and from London to Topsham, for reasonable freight (the danger of the seas only excepted) ; and ’tis found that these goods were damnify’d otherwise than by the sea ; that the goods were delivered to the master of the ship, that the plaintiff did not know the part-owners ; that the owners had the money agreed for the freight;
and farther, that there were more owners than the now
defendant.
Upon this case three points do arise.
1. Whether the action lay against the owners or against the master.
2. Whether the action be well brought against some of the part-owners only.
3. Admitting it is not, whether it be good nom, it being waved, arid not pleaded in abatement’?

Judges:

Eyre J, Holt CJ

Citations:

(1691) 2 Salk 440

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
See Also – Boson v Sandford and others 1724
. .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Transport

Updated: 16 May 2022; Ref: scu.606512

Regina v Secretary of State for Transport Ex Parte Richmond Upon Thames London Borough Council and Others: QBD 21 Mar 1996

An order restricting the number of night flights but without apportioning those numbers between different categories was valid.

Citations:

Gazette 17-Apr-1996, Times 21-Mar-1996

Statutes:

Civil Aviation Act 1982

Jurisdiction:

England and Wales

Transport, Environment

Updated: 16 May 2022; Ref: scu.87961

The Oinoussian Friendship: 1987

A claim was made for physical damage to a vessel.
Held: Where the owners take advantage of the fact that repairs are being done by having owners’ work done at the same time, and (1) the owners’ work does not extend the cost of or period of repairs, and (2) the owners’ work was not immediately necessary so that the vessel would have been out of commission irrespective of the wrongful damage, in which case the owner cannot recover at all save insofar as the wrongful damage repairs add to the period of detention, there is no principle of law that requires apportionment by way of owners’ contribution to the outlay.

Citations:

[1987] 1 Lloyd’s Rep 258

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 15 May 2022; Ref: scu.425901

Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago: CA 1976

The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs required would have cost far more than the repaired value of the vessel. Mocatta J had accepted this proposition.
Held: The appeal succeeded. If the vessel was out of repair when redelivered, the charterers were liable in damages, but the redelivery without first repairing the vessel was nevertheless valid.
Lord Denning MR considered whether, if the redelivery had been a repudiation of the contract, the owners would have been entitled to refuse to accept it and sue for hire thereafter. The decision in White and Carter had no application ‘in a case in which the plaintiff ought, in all reason, to accept the repudiation and sue for damages, provided that damages would provide an adequate remedy for any loss suffered by him’.
Orr LJ discussed the White and Carter point, saying that in this case, first, the owners could not perform the contract without the co-operation of the charterers and, secondly, the charterers had set out to prove that the owners had no legitimate interest in claiming the hire rather than damages.
Browne LJ agreed with Lord Denning on the principal point and with Orr LJ on the White and Carter point.

Judges:

Lord Denning MR, Orr LJ

Citations:

[1976] 1 Lloyds Reports 250

Jurisdiction:

England and Wales

Cited by:

Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Cited – Clea Shipping Corp v Bulk Oil International, The Alaskan Trader (No 2) 1984
The 24 month charterparty vessel suffered a major engine breakdown after nearly a year. The repairs would take several months. The charterers said they had no further use for the vessel but the owner did the repairs and sought to hold the charterers . .
Distinguished – Salaried Staff London Loan Company Ltd v Swears and Wells Ltd SCS 15-Feb-1985
. .
Cited – MSC Mediterranean Shipping Co Sa v Polish Ocean Lines (The Tychy) CA 31-Mar-1999
A slot charterer had a right in a ship, even if only of a part of the ship, and so a claim under the agreement to arrest a sister ship of the chartering company could be heard within the Admiralty Court’s jurisdiction. . .
Cited – Ocean Marine Navigation Ltd v Koch Carbon Inc (‘The Dynamic’) ComC 31-Jul-2003
The arbitrator had held in favour of the charterers that the owners were limited to damages and could not claim hire. The owners appealed.
Held: The arbitrator had not applied the law correctly in rejecting the owners’ claim to hire, and he . .
Cited – Isabella Shipowner Sa v Shagang Shipping Co Ltd ComC 26-Apr-2012
The claimant ship owners challenged an award on two grounds. First, with permission, the owners appealed under section 69 of the Arbitration Act 1996 on the following question of law: ‘Whether, as a matter of law, owners were entitled to refuse . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 15 May 2022; Ref: scu.396612

Pavia and Co SPA v Thurmann-Nielsen: CA 1952

In cif contracts the credit must be opened at the latest at the beginning of the shipment period. The seller is entitled, before he ships the goods to be assured that when he does so, he will get paid.

Citations:

[1952] 2 QB 84

Jurisdiction:

England and Wales

Cited by:

Binding – Ian Stach v Baker Bosley Ltd 1958
The parties contracted for the sale of ship plates fob Benelux port for shipment to Canada in August-September 1956 with payment to be by confirmed irrevocable credit. The buyers failed to open the credit either by August 1st or by August 8th when . .
Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 15 May 2022; Ref: scu.396480

The ‘Columbus’: 9 Mar 1849

Where a vessel is sunk in a collision, and compensation is awarded by the Court of Admiralty to the full value of the vessel as for a total loss, the plaintiff will not be able to recover anything in the nature of a demurrage for loss of the employment of his vessel or his own earnings in consequence of the collision.

Citations:

[1849] EngR 380, (1849) 3 W Rob 158, (1849) 166 ER 922

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – The Kate 1899
The Kate was totally lost in a collision with the defendants’ ship, whilst on the ballast leg of a charterparty. The issue was whether in a case of total loss as opposed to partial loss of a ship without a cargo, the plaintiffs could recover only . .
Cited – The Mayor’s Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd and Others SC 20-Apr-2016
The Court considered the quantification of damages to be awarded to a business suffering under riots under the 1886 Act, and in particular whether such recoverable losses included compensation for consequential losses, including loss of profits and . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 15 May 2022; Ref: scu.298685

Willoughby And Others v Horridge: 19 Nov 1852

The lessees of a ferry provided steam-boats for the conveyance of passengers, goods, and cattle from A. to B., and also slips for landing and embark ing, which were (generally) sufficient for the purpose :—Held, that they were liable for an injury sustained by the horse of a passenger, in consequence of the side-rail of the landing slip (of the dangerous state of which they had been forewarned) giving way, although the horse was at the time under the control and management of its owner.

Citations:

[1852] EngR 1026, (1852) 12 CB 742, (1852) 138 ER 1096

Links:

Commonlii

Jurisdiction:

England and Wales

Transport, Animals

Updated: 15 May 2022; Ref: scu.296149

Regina v The Caledonian Railway Company: 20 Nov 1850

A railway company, before applying for a Deviation Act, deposited with the clerk of the peace for the county, plans and sections of the proposed line, and cross sections shewing the manner in which roads were to be carried over the line. On one of those cross sections, No. 3, were delineated the manner in which it was proposed to carry a road at I. over the line by a bridge, and the proposed inclination of the altered line of road. The Deviation Act, when obtained, incorporated the Railway Clauses Consolidation Act, 1845, and enacted (sect. 9) that it should be lawful to the company to construct the bridges, for carrying the railway thereby authorized over any roads, or for carrying any roads over the said railway, of the heights and spans and in the manner shewn on the sections deposited. The company made the line, and at I. deviated two feet vertically from the level marked on the plans. They carried the road over the line on a bridge of the proposed height and span, but with a different inclination of the altered road. A mandamus having issued, commanding the company to make the bridge and carry the road over it in conformity with crass section, No. 3, and at the rates of inclination delineated thereon as the rates of inclination of the road when altered. 1, That the exhibition of the plans and sections imposed no obligation on the company, except in so far as the plans, andc., were incorporated in the Act. 2. That nothing in the Railway Clauses Consolidation Act, 1845, rendered the cross sections obligatory on the company. 3. That, if sect. 9 in the special Act was obligatory (which, semble, it was so far as regarded the height and spans of the bridges), the obligation did not extend to the rates of inclination of the altered road, and that, Held, on demurrer to a plea to the return, 1, That
the exhibition of the plans and sections imposed no obligation on the company, except in so far as the plans, andc., were incorporated in the Act. 2. That nothing in the Railway Clauses Consolidation Act, 1845, rendered the cross sections obligatory on the company. 3. That, if sect. 9 in the special Act was obligatory (which, semble, it was so far as regarded the height and spans of the bridges), the obligation did not extend to the rates of inclination of the altered road, and that, the mandatory part of the writ going in this respect beyond the obligation
imposed by law, the writ was bad altogether.
Distinguished,

Citations:

[1850] EngR 868, (1850) 16 QB 19, (1850) 117 ER 782

Links:

Commonlii

Jurisdiction:

England and Wales

Transport

Updated: 15 May 2022; Ref: scu.298215

Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons (No 2): CA 2 Jan 1929

The Company had constructed a jetty under powers granted by a private Act of Parliament. It asserted a claim to own the subsoil.
Held: It did so own the sub-soil and had the right under the statute to control who used the jetty.

Citations:

[1929] 144 LT 132, 95 JP 9, 47 TLR 16, 29 LGR 22

Citing:

Cited – Liverpool and North Wales SS Co Ltd v Mersey Trading Co 1908
A company was authorised by Order to construct a pier and to charge vessels for mooring. It did so but went into liquidation. The assignee from the liquidator discovered that the pier had not been constructed as ordered. It leased the pier to the . .
See Also – Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons CA 1929
In construing a private statute, it should be viewed so as not to prevent persons carryong out otherwise lawful acts unless expressly so stated.
Scrutton LJ said that clear and unequivocal words were necessary to deprive persons of the power . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 15 May 2022; Ref: scu.272211

Regina v Secretary of State for Environment Transport and Regions ex parte International Air Transport Association: Admn 21 Apr 1999

Citations:

[1999] EWHC Admin 332

Citing:

See Also – Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association Admn 6-Nov-1998
. .

Cited by:

Leave – Regina v Secretary of State for the Environment, Transport, and the Regions, Ex Parte International Air Transport Association QBD 3-Jun-1999
The Association sought judicial review to challenge the 1998 Order.
Held: Where an EC regulation was properly completed, it was valid even though different member states had, before joining the EC, had subscribed to International Treaties . .
Lists of cited by and citing cases may be incomplete.

Transport, European

Updated: 15 May 2022; Ref: scu.139596

Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association: Admn 6 Nov 1998

Citations:

[1998] EWHC Admin 1052

Cited by:

See Also – Regina v Secretary of State for Environment Transport and Regions ex parte International Air Transport Association Admn 21-Apr-1999
. .
See Also – Regina v Secretary of State for the Environment, Transport, and the Regions, Ex Parte International Air Transport Association QBD 3-Jun-1999
The Association sought judicial review to challenge the 1998 Order.
Held: Where an EC regulation was properly completed, it was valid even though different member states had, before joining the EC, had subscribed to International Treaties . .
Lists of cited by and citing cases may be incomplete.

Transport, European

Updated: 15 May 2022; Ref: scu.139173

Smit Tak Offshore Services and Others v Youell and Others: CA 15 Jan 1992

A marine insurance policy did not cover the cost of compliance with an unlawful threat from the state of Dubai to revoke a licence if a wreck was not removed. The threat did not create a legal responsibility covered by the insurance. An umbrella policy designed to cover risks not otherwise insured against, could not thereby be expected to cover all other risks.

Citations:

Gazette 15-Jan-1992

Jurisdiction:

England and Wales

Insurance, Transport

Updated: 15 May 2022; Ref: scu.89310

K A and S B M Feakins Ltd v Dover Harbour Board: QBD 9 Sep 1998

A wrongful decision by a harbour authority not to allow exports of live animals through the port, did not give a right to a private claim for damages, even though it was in breach of a statutory duty.

Citations:

Gazette 23-Sep-1998, Times 09-Sep-1998

Statutes:

Harbours, Docks and Piers Clauses Act 1847 33

Jurisdiction:

England and Wales

Damages, Transport

Updated: 15 May 2022; Ref: scu.82654

Hussain v Bradford City Council: QBD 15 Feb 1993

If a complaint was made that a private hire vehicle was acting in contravention of the regulation, requiring it to display the licence plate issued by the local authority, indicating the maximum number of passengers, it was necessary for the prosecution to prove that the vehicle was plying for hire at the time of the alleged offence.

Citations:

Ind Summary 15-Feb-1993

Statutes:

Local Government (Miscellaneous Provisions) Act 1976 48 (6)(b)

Local Government, Licensing, Transport, Crime

Updated: 15 May 2022; Ref: scu.81565

Stanton v Richardson: 1874

The shipowner contracted to carry wet sugar but the ship was not fit to carry it. The jury found also that it could not be made fit in time to avoid frustrating the purpose of the voyage. The molasses had drained from the wet sugar into the hold in large quantities and the ship’s pumps were unable to deal with it. The cargo was unloaded.
Held: The charterers were entitled to refuse to reload it or to provide any other cargo. If the defect had been or could have been remedied within a reasonable time so as not to frustrate the adventure the charterer’s right would not have been to terminate the charter-party but to have claimed damages for any loss occasioned by the delay.

Citations:

[1874] 9 Common Pleas 390

Jurisdiction:

England and Wales

Cited by:

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

Contract, Transport

Updated: 15 May 2022; Ref: scu.266193

Freeman v Taylor: 1846

The charterer claimed a deviation by the owner. The jury found the deviation of such a nature and description as to deprive the freighter of the benefit of the contract.
Held: The verdict was upheld.

Judges:

Tindal CJ

Citations:

[1846] 8 Bingham 124

Cited by:

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

Contract, Transport

Updated: 15 May 2022; Ref: scu.266197

The Black Falcon: 1991

The ship under charter was returned late. The arbitrators had awarded the market rate of hire from the date when the vessel would have been delivered if she had not undertaken her last (illegitimate) voyage rather than from the last date when she could have been delivered without a breach of charterparty.
Held: The courtoverturned the award: ‘In my judgement the arbitrators’ approach conflicts with the principle governing the calculation of damages which was enunciated in The Dione . . A study of the judgments of the majority reveals that this case is authority for the proposition that in circumstances where the owners undertook the illegitimate last voyage without waiving their rights to claim damages, the charterers’ obligation is to pay the charter rate until the last permissible date for redelivery, and thereafter pay the market rate until the actual redelivery . . I am of course bound by this decision. But . . I would have come to the same conclusion in the absence of authority.’

Judges:

Steyn J

Citations:

[1991] I LLR 77

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 14 May 2022; Ref: scu.246799

Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace: QBD 1994

The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London.’
Held: The proceedings in a foreign jurisdiction were to be restrained by reason of agreement to submit to arbitration in England.
Rix J said: ‘collision claims I n the present case raised disputes which are within the arbitration clause. To some extent the claims in contract and in tort are true alternatives (for example the charterers’ counterclaim). To some extent they may not be true alternatives, but they clearly overlap (as in the owners’ claims for breach of the warranty of safety and for fault in collision) In any event all claims and cross-claims arise out of the same incident, the identical set of facts which have to be investigated by the arbitrators . . The parties clearly contemplated that a collision or other accident of navigation could give rise to a charterparty dispute.’

Judges:

Rix J

Citations:

[1994] 1 Lloyds Rep 168

Jurisdiction:

England and Wales

Citing:

Followed – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .

Cited by:

Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Appeal from – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Arbitration

Updated: 14 May 2022; Ref: scu.245558

Wehner v Dene Steam Shipping Co: 1905

Channell LJ said: ‘Now, although the owner has the right to demand the bill of lading freight from the holder of the bill of lading because the contract is the owner’s contract, yet the owner has also, of course contracted by the charterparty that for the use of his ship he will be satisfied with a different sum, which will also in the great majority of cases be less than the total amount of the bills of lading freights; and, therefore, if the owner were himself to demand and receive the bills of lading freight as he might do if he chose, he would still have to account to the charterer or the sub-charterer, as the case may be, for the surplus remaining in his hands after deducting the amount due for hire of the ship under the charterparty. Of course, in practice an agent is usually appointed to receive the bill of lading freight, though not necessarily, because the captain may receive it himself; and under this charterparty the captain has to appoint as agent any person whom the charterers may select, which is a very reasonable arrangement, because if the business goes smoothly and the charterparty hire is duly paid, the charterers are the persons really interested in receiving the bill of lading freight. But, if I am right as to the bill of lading contract being with the owner, then it seems to me to follow that the agent appointed to receive the bill of lading freight becomes by the very act of appointment the agent of the shipowner to receive the freight for him, and the agent’s receipt binds the shipowner.’

Judges:

Channell LJ

Citations:

[1905] 2 KB 92

Contract, Transport

Updated: 14 May 2022; Ref: scu.237421

Britain Steamship Company Limited v The King and Others (“The Matiana”): HL 1921

The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant ships convoyed, whose task was simply to sail peacefully on the course they might be directed to follow, and to keep their proper places in the convoy, became so identified with the ships of war directing and protecting them, as to be treated as members of a joint flotilla on a common enterprise. I concur with Atkin LJ in thinking that the learned judge treats as he said the sheep and the shepherd as both engaged in the operation of shepherding. The duties and proper tasks of convoying warships and the ships they convoy are respectively indicated in ss 30 and 31 of the Naval Discipline Act of 1866 . . The naval officers are to diligently perform the duties of convoying and protecting the ships they are appointed to convoy according to instructions, to defend these ships and the goods they carry without deviation, to fight in their defence if they are assailed and not to abandon them or expose them to hazard. Every master or other officer in command of any merchant or other vessel convoyed is bound to obey the commanding officer of the ships of war in all matters relating to the navigation or security of the convoy, and is also bound to take such precautions for avoiding the enemy as may be directed by this commanding officer. It does not appear, however, that this latter officer has any power to require the master, officers or crew of any merchant ship which is being convoyed to take combative action against a vessel of any kind, or to join in such action if taken by all or any of the ships of war. The roles of the two classes of ships are entirely different in nature and character. That of the ships of war is protective and if need be combative; that of the merchantmen is not at all combative in nature and character as would be their enterprise in time of peace’ Viscount Cave: ‘But in the present case the orders were a part of the convoying operation which included the choice of the route, the setting of the course, and the precautions taken on the voyage; and I do not think that the transaction can be split up and treated as in part an operation and in part something other than an operation . . .’
Lord Shaw: ‘ . . I think that the putting of a vessel under convoy, with all that that involves, is an actual and accomplished change of circumstances and an operation which is conducted in the course of hostilities or war . . .’ and ‘To all intents and purposes it is the same as if he had placed on the convoyed ship a naval officer in command as subordinate to himself. In short, so far as the direction of the course of the vessel was concerned, the merchant captain and officers were no longer in control. The naval officers were. Not only so, but the orders of the commander of the convoy were clothed with the instant sanction of force . . . I myself see great force in the view which Bailhache J. so clearly expresses to the effect that all the vessels – those acting as convoy and those under convoy – must be treated as a unity. . . . I am humbly of opinion that, so far as ships under convoy are concerned, all these ships are, along with the ships acting as convoy, under a unified command, and that command issuing from the commander of the convoy is, as part of the direction of the convoy, a military operation.’

Judges:

Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw

Citations:

[1921] 1 AC 99

Statutes:

Naval Discipline Act 1866 30

Jurisdiction:

England and Wales

Citing:

At First instance – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . .
Appeal from – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .

Cited by:

Applied – Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd 1942
In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and . .
Cited – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Applied – Fogg and Another, Regina (on the Application of) v Secretary of State for Defence CA 5-Oct-2006
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Transport

Updated: 14 May 2022; Ref: scu.237694

Crows Transport Ltd v Phoenix Assurance Co Ltd: 1965

The insured goods were stolen from temporary storage whilst awaiting being loading.
Held: They were ‘in transit’ under the insurance policy, everything done thereafter was incidental to and part of that transit.

Citations:

[1965] 1 WLR 383, [1965] 1 All ER 596

Jurisdiction:

England and Wales

Cited by:

Applied – Eurodale Manufacturing Ltd v Ecclesiastical Insurance Office Plc CA 10-Feb-2003
Goods were insured whilst in transit. They were stored in a secure warehouse over a weekend pending delivery but were stolen. The insurance covered them ‘during the ordinary course of transit’.
Held: The goods were covered. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 14 May 2022; Ref: scu.181632

Hammerton and Another v Earl of Dysart and Another: HL 23 Jul 1915

The plaintiff sought a declaration that he owned an ancient right of ferry over the Thames, and that th edefendant had disturbed it by setting up a new ferry a short diatnce downstream.
Held: The traffic for the new ferry was largely generated by the park opened to the public by the defendant, and therefore the custom of the new ferry service was largely derived from this new business, was new traffic, and was not a disturbance of the plaintiff’s ferry rights.
Lord Parker said: ‘A ferry may thus be regarded as a link between two highways on either side of the water, or as part of a continuous highway crossing the water’.

Judges:

Viscount Haldane, Lord Parker of Waddington, Lord Sumner, Lord Strathclyde, and
Lord Parmoor

Citations:

[1916] 1 AC 57

Jurisdiction:

England and Wales

Citing:

Appeal from – Earl of Dysart v Hammerton and Co CA 1914
. .
Lists of cited by and citing cases may be incomplete.

Transport, Litigation Practice

Updated: 13 May 2022; Ref: scu.225325

Hansson v Hamel and Horley Ltd: HL 1922

Appeal dismissed

Citations:

[1922] 2 AC 36

Jurisdiction:

England and Wales

Citing:

Appeal from – Hansson v Hamel and Horley Ltd 1921
The court explained the role of a contract of carriage: ‘What is meant by the expression ‘Contract of Affreightment’? In my opinion, to satisfy the requirements with reference to contract of affreightment, the seller must bring into existence a . .

Cited by:

Appealed to – Hansson v Hamel and Horley Ltd 1921
The court explained the role of a contract of carriage: ‘What is meant by the expression ‘Contract of Affreightment’? In my opinion, to satisfy the requirements with reference to contract of affreightment, the seller must bring into existence a . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.222778

Hansson v Hamel and Horley Ltd: 1921

The court explained the role of a contract of carriage: ‘What is meant by the expression ‘Contract of Affreightment’? In my opinion, to satisfy the requirements with reference to contract of affreightment, the seller must bring into existence a contract embodied in a form capable of being transferred to the buyer and which when transferred will give the buyer two rights: (a) a right to receive the goods, and (b) a right against the shipowner, who carries the goods, should the goods be damaged or not delivered’. . . ‘

Citations:

1921 Lloyd’s List LR 432

Citing:

Appealed to – Hansson v Hamel and Horley Ltd HL 1922
Appeal dismissed . .

Cited by:

Appeal from – Hansson v Hamel and Horley Ltd HL 1922
Appeal dismissed . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.222777

International Marine Sales Incorp: AdCt 29 Jul 1997

ComC Action in rem. Arrest set aside. Standard of proof. Not arguable that owners liable for bunkers. Bunkers suppliers arrested ship to recover payment for bunkers ordered by time charterers. Owners not liable in personam for bunkers. Plaintiffs had no arguable case that owners liable. It followed that arrest should be set aside.

Judges:

Clarke J

Citations:

Unreported, 29 July 1997

Jurisdiction:

England and Wales

Transport

Updated: 13 May 2022; Ref: scu.220786

Thomas Cook Group Ltd and Ors v Air Malta Ltd: ComC 6 May 1997

The court considered the circumstances in which the court would apply the misconduct exceptions under the Convention: ‘The starting point when considering whether in any given circumstances the acts or omissions of a person entrusted with goods of another amounted to wilful misconduct is an enquiry about the conduct ordinarily to be expected in the particular circumstances.
The next step is to ask whether the acts or omissions of the defendant were so far outside the range of such conduct as to be properly regarded as ‘misconduct’. (An important circumstance would be a deliberate disregard of express instructions clearly given and understood.)
It is next necessary to consider whether the misconduct was wilful.
What does not amount to wilful misconduct? Wilful misconduct is far beyond negligence, even gross or culpable negligence.
What does amount to wilful misconduct? A person wilfully misconducts himself if he knows and appreciates that it is misconduct on his part in the circumstances to do or to fail or omit to do something and yet (a) intentionally does or fails or omits to do it or (b) persists in the act, failure or omission regardless of the consequences or (c) acts with reckless carelessness, not caring what the results of his carelessness may be. (A person acts with reckless carelessness if, aware of a risk that goods in his care may be lost or damaged, he deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.)
The final step is to consider whether the wilful misconduct (if established) caused the loss of or damage to the goods.’ and

‘Wilful misconduct in such a special condition means misconduct to which the will is a party as contradistinguished from accident and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persist in the act, failure or omission regardless of the consequences.’ Per Johnson J. in Graham v Belfast and Northern Counties Railway [1901] 2.I.R. 13, which was cited with approval by Lord Alverstone in Forder v GWR [1905] 2 KB 532, who added ‘or acts with reckless carelessness, not caring what the results of his carelessness may be.
Wilful misconduct, to put it most shortly, as it has often been put in the past, is misconduct to which the will is a party, and it is something which is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. I think the first thing for you to remember is that the will must be party to the misconduct, and not merely a party to the conduct of which complaint is made. Let us take an example: if the pilot of an aircraft knowingly does something which subsequently a jury find amounted to misconduct, those facts alone do not show that he is guilty of wilful misconduct. To establish wilful misconduct on the part of this imaginary pilot it must be shown not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that when he did it he was aware that it was a wrongful act – that is to say, he was aware that he was committing misconduct.’per Barry J. in Horabin v BOAC [1952] 2 Lloyd’s Law Reports 450 at page 459.
‘If I summarise the principle in my own words, it would be to say that for wilful misconduct to be proved there must be either (one) an intention to do something which the actor knows to be wrong or (two) a reckless act in the sense that the actor is aware that loss may result from his act and yet does not care whether loss will result or not or, to use Mr Justice Barry’s words in Horabin’s case, ‘he took a risk which he knew he ought not to take’ per Longmore J. in National Semiconductors v UPS [1996] 2 Lloyd’s Reports 212 at 214.
Further, a person could be said to act with reckless carelessness towards goods in his care if, aware of a risk that they may be lost or damaged, he nonetheless deliberately goes ahead and takes the risk when it is unreasonable in all the circumstances for him to do so.’ per Beldam LJ. in Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] 2 Lloyd’s Reports 369, at page 374.

Judges:

Cresswell J

Citations:

[1997] 2 Lloyd’s Rep 39

Statutes:

Warsaw Convention Article 25(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Micro Anvika Ltd and others v TNT Express Worldwide (Euro Hub) Nv and others ComC 20-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.220775

Caspian Basin Specialised Emergency Salvage Administration and Anr v Bouyges Offshore SA (No. 3): AdCt 26 May 1997

ComC Third party notices – application to set aside – loss of barge under tow – port authority held not to be a necessary and proper party

Judges:

Colman J

Citations:

[1997] 2 Lloyd’s Rep 493, [1997] CLC 1443

Jurisdiction:

England and Wales

Transport, Litigation Practice

Updated: 13 May 2022; Ref: scu.220777

Global Container Lines ltd v State Black Sea Shipping and Ors: ComC 11 Sep 1997

Agreement for exclusive selling rights over vessel – authority of president of parent company to enter into ratification- whether terms (relating to period etc) sufficiently certain to be enforceable. Repudiation – interlocutory instruction restraining sale through other means.

Judges:

Mance J

Citations:

Unreported, 11 September 1997

Jurisdiction:

England and Wales

Citing:

See Also – Global Container Lines Limited v Bonyan Shipping Company CA 9-Nov-1998
. .

Cited by:

Appeal from – Global Container Lines Limited v State Black Sea Shipping Company; Amber Seatrade SA and Clifton Navigation SA CA 16-Dec-1997
. .
See Also – Global Container Lines Ltd v Bonyad Shipping QBD 14-Jul-1998
Where companies had amalgamated and one had been a party to litigation, it was possible for the court to order the retrospective substitution of the new company even though the original party had disappeared in law. . .
See Also – Global Container Lines Limited v Bonyan Shipping Company CA 9-Nov-1998
. .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.220793

Chandris v Isbrandtsen-Moller Co Inc: CA 1950

Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, including so much of that law as is to be found in the section. The Hague Rules were designed to achieve a part harmonisation of the diverse laws of trading nations. It achieved this by regulating freedom to contract on certain topics only.
Devlin J said: ‘A rule of construction cannot be more than a guide to enable the court to arrive at the true meaning of the parties.’

Judges:

Devlin J

Citations:

[1951] 1 KB 240, (1950) 2 All ER 618, (1950) 84 Lloyds Rep 347

Statutes:

Hague-Visby Rules, Law Reform (Miscellaneous Provisions) Act 1934 3(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – 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.
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 13 May 2022; Ref: scu.219886

The Panaghia Tinnou: 1986

Judges:

Steyn J

Citations:

[1986] 2 Lloyd’s Rep 586

Statutes:

Hague-Visby Rules A2

Citing:

Applied – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.219882

The Sitarem: 2001

The court considered the use of plots in cases involving collisions at sea. A plot shows what might have happened not what did happen.

Citations:

[2001] 2 Lloyd’s Rep 107

Jurisdiction:

England and Wales

Cited by:

Cited – ‘Bow Spring’, Owners of Ship v ‘Manzanillo Ii’, Owners of Ship CA 28-Jul-2004
There had been a collision at sea.
Held: (Addendum) Where the admiralty court sought advice from assessors, modern good practice required that the advice should be disclosed to the parties advisers and that they have opportunity to comment. . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 May 2022; Ref: scu.200451

Goulandris Bros v Goldmann and Sons: 1958

An insurance clause ensuring ‘loss or damage in connexion with the goods’ under the Hague Rules for carriage of goods by sea includes economic loss even in the absence of such physical damage.

Judges:

Pearson J

Citations:

[1958] 1 QB 74

Jurisdiction:

England and Wales

Cited by:

Cited – Pilkington United Kingdom Limited v CGU Insurance Plc QBD 28-Jan-2004
The claimants had installed glass tiles in a roof. They fractured, and facing a claim for damages, they sought payment from their insurers. The claimants argued that the risk of fracture meant that the damage occurred upon installation, the insurers . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 13 May 2022; Ref: scu.198320

In re the Oropesa: CA 1943

Two steam vessels collided. One’s Master sent fifty of his crew in boats to the other ship and about an hour and a half after the collision decided himself to go to that ship and confer with her Master on measures to be taken. He transferred in another lifeboat, which he embarked with sixteen men. The weather was rough and before the lifeboat could reach the other ship it capsized and sank with nine of the occupants drowning. The badly damaged vessel subsequently sank and its owners sued the owners of the other ship. In addition, the parents of one of the deceased sailors joined as plaintiffs. They recovered against the other shipowners. It was argued that the drowning was not caused by the collision and therefore no liability should ensue.
Held: The plea failed: ‘If the master and the deceased in the present case had done something which was outside the exigencies of the emergency, whether from miscalculation or from error, the plaintiffs would be debarred from saying that a new cause had not intervened. The question is not whether there was new negligence, but whether there was a new cause. I think that is what Lord Sumner emphasized in The Paludina. To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.’ They were not prepared to say that in all the circumstances the fact that the deceased’s death was due to his leaving the ship in the lifeboat and its unexpected capsizing prevented it from be a direct consequence of the casualty.

Judges:

Lord Wright

Citations:

[1943] P 32

Jurisdiction:

England and Wales

Cited by:

Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Green and Another v Alexander Johnson (A Firm) and Another ChD 26-May-2004
The judgment related to the assessment of damages for professional negligence by the defendants. The court deprecated the practice of separating off assessments of damages from the principal claim, since this created a risk of confusion. The . .
Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 13 May 2022; Ref: scu.197925

Industrie Chimiche v Nea Ninemia Shipping: 1983

Construction of exemption clause in time charterparty: ‘Since it is inherently improbable that one party to a contract should intend to absolve the other party from the consequences of the latter’s own negligence, the court will presume a clause not to have that effect unless the contrary is plainly shown by clear words or by implication.’ and ‘In carrying out that task of construction, the court should not treat commercial parties as if they were law students.’

Judges:

Bingham J

Citations:

[1983] 1 All ER 686

Citing:

Cited – Lamport and Holt Lines v Coubro, The Raphael CA 1982
The court considered how it should treat the construction of a contractual clause claiming that one party should be exempt from liability for its own negligence: ‘Thus, if an exemption clause of the kind we are considering excludes liability for . .

Cited by:

Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport

Updated: 13 May 2022; Ref: scu.195681

Attorney-General v Wright: CA 1897

The nouns ‘mooring’ and ‘moorings’ have been judicially defined as ‘a mode of anchoring a vessel by means of a fastening in the ground, either an anchor or something heavy or a chain and buoy, as will allow a vessel picking up the buoy when she returns to it and so coming to rest’. A public right of navigation includes the right to moor or to drop anchor on the soil of the river bed for purposes incidental to passage.

Judges:

Lord Esher MR

Citations:

[1897] 2 QB 318

Jurisdiction:

England and Wales

Cited by:

Cited – Regina on the Application of Dart Harbour and Navigation Authority v the Secretary of State for Transport Local Government and the Regions QBD 26-Jun-2003
Captain Wyatt owned land near the harbour and wanted to moor his boat by it. The Harbour authority said he needed a licence. The Harbour authority requested him to move the boat as a danger to navigation. The Captain sought a judicial review of the . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 12 May 2022; Ref: scu.188216

Orr Ewing v Colqhoun: 1887

In the case of tidal rivers the public right of way extends over the whole watercourse but in the case of non-tidal rivers the public rights (at least ordinarily) are confined to the channel of the river.

Judges:

Lord Blackburn

Citations:

(1887) 2 App Cas 839

Cited by:

Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Lists of cited by and citing cases may be incomplete.

Land, Transport

Updated: 12 May 2022; Ref: scu.187531

Jackson v Union Marine Insurance Co Ltd: CCP 1874

The plaintiff ship owner, contracted under a charterparty to proceed with all possible dispatch to Newport. He insured the cargo. The ship ran aground before the cargo could be collected, and was delayed. The charterers threw up the charterparty and contracted elsewhere for the delivery of the goods. The plaintiff claimed under his insurance.
Held: The delay had been so long as to put an end to the contractual obligations. The charterers were therefore not obliged to load the cargo, and the loss constituted a loss of the chartered freight by perils of the sea. It was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations: ‘There are the cases which hold that, where the shipowner has not merely broken his contract, but has so broken it that the condition precedent is not performed, the charterer is discharged. Why? Not merely because the contract is broken. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse? Not arriving with due diligence or at a day named is the subject of a cross-action only. But not arriving in time for the voyage contemplated, but at such a time that it is frustrated is not only a breach of contract, but discharges the charterer. And so it should though he has such an excuse that no action lies’.

Judges:

Baron Bramwell

Citations:

[1874] LR 10 CP 125, [1874-80] All ER REP 317, 44 LJCP 27, [1874] 31 LT 789, [1874] 23 WR 169, [1874] 2 Asp MLC 435

Jurisdiction:

England and Wales

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Insurance

Updated: 12 May 2022; Ref: scu.185676

Pera Shipping Corporation v Petroship SA: 1985

Citations:

[1985] 2 Lloyd’s Law Rep 103

Jurisdiction:

England and Wales

Cited by:

Cited – Carter v Lotus Leisure Group Limited CA 25-Jul-2001
The claimant operated by taking commission from arrangements between holiday chalet owners and tour operators, such as the respondent, for letting the chalets to holidaymakers. Under an agreement, the tour operators were prevented from renting from . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 12 May 2022; Ref: scu.183144

Voaden v Champion, “The Baltic Surveyor”: 2001

Judges:

Colman J

Citations:

[2001] 1 Lloyd’s Rep 739

Jurisdiction:

England and Wales

Cited by:

Appeal from – Voaden v Champion ( ‘Baltic Surveyor’ ) CA 31-Jan-2002
The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 12 May 2022; Ref: scu.183030

Rich v Commissioner for Railways (NSW): 1959

The Board considered a claim arising from an accident occurring at a railway level crossing

Citations:

[1959] 101 CLR 135

Jurisdiction:

Australia

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Transport, Personal Injury

Updated: 12 May 2022; Ref: scu.182850

The Ship “Marlborough Hill” v Alex Cowan and Sons Limited: PC 1921

The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper’s order.
Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that ‘If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods’; and that it ‘ends in the time honoured form’, viz ‘In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void’ The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.

Judges:

Lord Phillimore

Citations:

[1921] AC 444

Statutes:

Admiralty Court Act 1861

Cited by:

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

Transport, Contract, Commercial

Updated: 12 May 2022; Ref: scu.181886