Category: Transport

Altera Voyageur Production Ltd v Premier Oil E and P UK Ltd: ComC 17 Jul 2020

The claimant claimed the sum of USD 12,108,072.50 plus contractual interest by way of adjusted hire for the floating production, storage and offloading vessel Voyageur Spirit. That sum is said to be due under the terms of a Sub-Bareboat Charter Party. The defendant disputes that claim and counterclaims for the sum of USD 3,837,580.91 by way of hire that it says that it has overpaid.
[2020] EWHC 1891 (Comm)
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.652960

Clearlake Chartering Usa Inc and Another v Petroleo Brasileiro Sa: ComC 31 Mar 2020

Mr. Justice Jacobs
[2020] EWHC 805 (Comm)
Bailii
England and Wales
Cited by:
See Also – Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd ComC 27-Apr-2020
Return date in respect of two mandatory injunctions requiring a voyage charterer, Clearlake, and a sub-voyage charterer, Petrobras, ‘forthwith’ to provide such bail or other security required to secure the release of the vessel MIRACLE HOPE from . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.649886

Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd: ComC 26 Mar 2020

The Claimant time charterer seeks an urgent mandatory injunction compelling the Defendant voyage charterer to provide security to enable the release of the MT ‘Miracle Hope’ (the ‘Vessel’), which is currently under arrest in Singapore. In summary, the Claimant alleges that the Defendant is contractually obliged to provide the security sought but has so far failed to do so.
Mr Justice Henshaw
[2020] EWHC 726 (Comm)
Bailii
England and Wales
Cited by:
See Also – Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd ComC 27-Apr-2020
Return date in respect of two mandatory injunctions requiring a voyage charterer, Clearlake, and a sub-voyage charterer, Petrobras, ‘forthwith’ to provide such bail or other security required to secure the release of the vessel MIRACLE HOPE from . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.649891

Ruby Tree Shipping Sa v General Motors Do Brasil Ltda and Another: ComC 22 May 2020

Application for judgment in default for an anti-suit injunction and declaratory relief – t the first defendant has complained that in the course of the voyage the machinery was damaged in such a way that it gives rise to a claim which has been put at something like $2 million.
Waksman J
[2020] EWHC 2198 (Comm)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.653083

The Gauntlet (No 2) (Dyke v Elliott): AdCt 2 Aug 1871

During the late war between the North German Confederation and France, a Prussian merchant vessel was captured in the English Channel, as prize of war, by a ship in the service of the government of France. A prize crew, under the command of an officer in the French naval service, was put on board the prize; afterwards the prize was driven, by stress of weather, to the Downs, and on the 24th of November, by order of an admiral in the French naval service, she anchored off Deal, within three marine miles of the shore. On the 26th of November, the collector of customs at Deal told the French consul there that it was time the prize left British waters. The French consul having found the Gauntlet, a British steam-tug, by accident at anchor in the Downs, the steam-tug, in pursuance of an agreement made between her master and the officer in command of the prize, and under the direction of such officer, towed the prize to Dunkirk Roads for the ordinary towage remuneration, which was afterwards paid by the French consul-general in London. At the time the agreement was made, the master, who was one of the owners of the steam-tug, had reasonable cause to believe that the prize was a prize of war, captured by the French. In a suit instituted on behalf of the Crown, for the condemnation of the steamtug :
Held: No offence against the Foreign Enlistment Act, 1870 (33 and 34 Viet, c. 90), had been committed.
Semble, that the steam-tug was not employed in the military or naval service of France.
Quaere, Whether it is necessary to complete the title of the captor to prize of war, that the prize should be carried within the territory of the captor
[1871] UKLawRpAE 15, (1869-1872) LR 3 AE 381
Commonliee
Foreign Enlistment Act 1870
England and Wales
Cited by:
Appeal from – Dyke v Elliott (The ‘Gauntlet’) PC 9-Feb-1872
A French Ship of War captured in the English Channel a Prussian Ship as prize of war. A prize crew under a French naval Officer was put on board. The prize Ship being driven by stress of weather into the Downs, anchored within British waters, and . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.653248

Burnside v Emerson: CA 1968

A car crashed as a result of running into a pool of storm-water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system, which had become blocked.
Held: The claim succeeded. Diplock LJ described the statutory obligation of a highway authority to maintain the highway as being: ‘The duty of maintenance of a highway which was, by section 38(1) of the Highways Act, 1959, removed from the inhabitants at large of any area, and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. I take most of those words from the summing-up of Blackburn J. in a case in 1859, Reg. v. Inhabitants of High Halden.’ Non-repair’ has the converse meaning. Repair and maintenance thus include providing an adequate system of drainage for the road; and it was in this respect that the judge found that the highway authority in this case had failed in their duty to maintain the highway.’
Lord Denning MR, after stating that the plaintiff had to prove that the road was dangerous to traffic, said: ‘Second: The plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair the highway. In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements. When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain. When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is no evidence of a failure to maintain.
Diplock LJ, Lord Denning MR
[1968] 1 WLR 1490, [1967] 1 QB 374
Highways Act 1959 44(1)
England and Wales
Citing:
Cited – Burgess v Northwich Local Board 1880
In the context of the duty of a local parish to maintain a highway, Lindley J said: ‘An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair.’
Counsel accepted . .

Cited by:
Cited – West Sussex County Council v Russell CA 12-Feb-2010
The council appealed against a finding that it had failed in its duty to keep the highway safe leading to an accident in which the claimant was severely injured. The road was narrow, and a significant drop had developed by the edge of the road. The . .
Cited – Kind v Newcastle-Upon-Tyne Council Admn 31-Jul-2001
The appellant complained that the local council had failed to maintain a highway. The road was a single track rural highway. The Crown Court allowed for the present-day character of the highway, and the appellant objected. The complainant sought to . .
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Pritchard v Clwyd County Council CA 16-Jun-1992
The plaintiff was injured wading through a flooded street. She claimed damages alleging a failure to maintain the storm water sewers. The defendants appealed a finding that they were responsible, and she appealed a contributory negligence . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.396762

Jennings v Great Northern Railway Company: 4 Nov 1865

A by-law of the defendants, a railway company, was as follows : ‘ No passenger will be allowed to enter any carriage without having first paid his fare and obtained a ticket. Each passenger, on payment of his fare, will be furnished with a ticket, which such passenger is to shew when required, and to deliver up, before leaving the company’s premises, upon demand.’ The plaintiff took tickets for himself, his servants, and horses, by a particular train, on the defendants’ railway. The train was afterwards divided into two. The plaintiff travelled in the first train, taking all the tickets with him. When the second train with the servants and horses was about to start, the plaintiffs servants were required to produce their tickets, and on their being unable to do so, the defendants refused to carry them.
Held: in an action by the plaintiff for not carrying his servants, that as the defendants contracted with the plaintiff, and delivered the tickets to him and not to the servants, the defendants could not, under the by-law, justify their refusal to carry.
[1865] UKLawRpKQB 4, (1865-1866) LR 1 QB 7
Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.653031

Le Conteur v London and S W Railway Company: QBD 14 Nov 1865

Where there is one entire contract to carry partly by land and partly by sea, the contract is divisible, and as to the land journey the carrier is within the protection of the Carriers Act, 11 Geo. 4 and 1 Wm. 4, c. 68
[1865] EngR 729, (1865) 6 B and S 961, (1865) 122 ER 1448, (1865-1866) LR 1 QB 54, [1865] UKLawRpKQB 17
Commonlii, Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.653034

Churchward v Palmer and Others (the Vivid): PC 4 Jul 1856

Neglect of the Admiralty regulations as to placing light at masthead, will not prevent a vessel from recovering, unless it appears that the collision was occasioned by such a neglect.
It is no excuse for a vessel steaming at the rate of 12 knots on a dark night through a fairway where vessels are accustomed to anchor that she was under contract to carry government mails at the rate of 13 knots.
[1856] EngR 752, (1856) 10 Moo PC 472, (1856) 14 ER 570, [1856] UKPC 26
Commonlii, Bailii
Commonwealth

Updated: 29 September 2021; Ref: scu.424577

Chatham Extra, Local Board of Health of v Rochester Pavement and Road Commissioners: QBD 8 Nov 1865

Section 3 of 12 and 13 Vict. c. 87, – which enacts that where the trustees of any turnpike-road shall hereafter borrow, charge, or secure any sum of money on the credit of the tolls arising on such road, they shall out of the tolls, in priority of all payments except the interest, set apart 51. per cent, per annum on the sum borrowed, as a sinking fund towards repaying it, – does not apply to a case in which the trustees had borrowed a sum at 51. per cent, for the purposes of their roads before the passing of the act, and after the act passed, borrowed money at 41. Per cent., in order to pay off the original debt. Semble, by Cockburn, C.J., and Mellor and S
Cockburn, CJ Mellor Sehh JJ
(1865-1866) LR 1 QB 24, [1865] UKLawRpKQB 9
Commonlii
England and Wales

Updated: 29 September 2021; Ref: scu.653033

Dearden v Townsend: QBD 11 Nov 1865

By a by-law of a railway company, no passenger was to be allowed to enter or travel in a carriage without having paid his fare and obtained a ticket, which the passenger was to shew whenever. required, and give up on demand before leaving the company’s premises. And any passenger not so producing or delivering up his ticket was to be required to pay the fare from the place whence the train originally started, or forfeit a sum not exceeding forty shillings.
Held: that this by-law only applied to the case of a person having and wilfully refusing to produce or give up his ticket, and not to the case of a person travelling without having paid for and obtained a ticket, with no intention to defraud the company.
Held: Also, that if the by-law extended to the latter case, it would have been illegal and void under the 8 Vict. c. 20, s. 109, as repugnant to section 103, which makes a fraudulent intention the gist of the offence of travelling without having paid the fare.
[1865] EngR 724, (1865) 6 B and S 861, (1865) 122 ER 1411, (1865-1866) LR 1 QB 10, [1865] UKLawRpKQB 12
Commonlii, Commonlii
England and Wales

Updated: 27 September 2021; Ref: scu.281636

Fothergill v Monarch Airlines Ltd: HL 10 Jul 1980

The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the citizen is bound should be ascertainable by reference to sources that are accessible. A court may in appropriate cases have regard to travaux preparatoires in construing a treaty but such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention. As to the Convention: ‘The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux preparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text. The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan and Co. Ltd v Babco Forwarding and Shipping (U.K.) Ltd [1978] A.C. 141, 152, `unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.’ and where a treaty is directly incorporated into English law by Act of the legislature, its terms become subject to the interpretative jurisdiction of the court in the same way as any other Act of the legislature.
Lord Diplock, Lord Wilberforce
[1980] 2 All ER 696, [1980] 3 WLR 209, [1981] AC 251, [1980] UKHL 6
mercatoria, Bailii
Warsaw Convention 1929 17, Vienna Convention on the Law of Treaties
England and Wales
Cited by:
Cited – BBC Enterprises Ltd v Hi-Tech Xtravision Ltd and Others CA 21-Dec-1989
The plaintiff sold television entertainment through subscriptions. The broadcasts were protected by encryption. The defendant sold equipment which could unscramble the broadcasts. They were sued under the section. At first instance, the claim was . .
Cited – Stevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
Cited – Christian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Cited – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.182178

James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd: HL 1978

A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of 30,000 pounds became payable. The plaintiffs claimed to recover the value including the duty, under Article 23.2 of the CMR.
Held: The liability to excise duty constituted ‘other charges’ under Article 23.4. The English text of the convention was incorporated through a schedule. A parallel Fench text had equal authenticity. The process of statutory interpretation required the court directly to interpret the English text of the convention while recognising that another authentic text existed. The court could interpret the statute on broad principles of general acceptation, assisted if need be by reference to the French text, without the need for a preliminary test of ambiguity.
Lord Wilberforce said:’I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo, Mango and Co Ltd [1932] AC 328, per Lord Macmillan, at p 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v Bradbeer [1975] 1 WLR 1204, 1206. There is no need to impose a preliminary test of ambiguity.’
Lord Wilberforce, Lord Salmon, Lord Dilhorne
[1978] AC 141
Customs and Excise Act 1952 85
England and Wales
Citing:
Cited – Stag Line v Foscolo, Mango and Company HL 1931
English statutes which give effect to international conventions need to be interpreted with the international origin of the rules well in mind. The Act only applies to contracts of carriage of goods outwards from ports in the United Kingdom, and the . .
Appeal from – James Buchanan and Company Ltd v Babco Forwarding and Shipping (UK) Ltd CA 2-Dec-1976
A trailer full of whisky had been stolen. Four fifths of its retail value was excise duty. Because it was to have been exported, duty had not been paid. On the theft the owners had had to pay the duty. The owners sued the carriers for the loss, but . .

Cited by:
Distinguished – Sandeman Coprimar Sa v Transitos Y Transportes Integrales S L , Bradford Cargo Terminal Limited, Spain Tir Centro Transportes Internacionales S A , Interserve International Freight Plc, Joda Freight CA 11-Feb-2003
Sub-bailees had lost Spanish tax seals which vouched for the respective tax having been paid whilst whisky was being transported from Scotland to Spain. The seals themselves were made of paper and had no intrinsic value. The importers claimed for . .
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Mitsui and Co Ltd and Others v Beteiligungsgesellschaft Lpg Tankerflotte Mbh and Co Kg and Another SC 25-Oct-2017
This appeal raises the issue whether the daily vessel-operating expenses of shipowners incurred while they were negotiating to reduce the ransom demands of pirates should be allowed in general average – ie whether those expenses should be shared . .
Cited – Smallwood v Revenue and Customs ChD 8-Apr-2009
The taxpayer had settled company shares for the benefit of himself and his family. He appealed from an amendment to his tax returns creating a CGT liability of 6 million pounds.
Held: The appeal was successful. . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.179737

Abnett v British Airways Plc (Scotland): IHCS 28 Apr 1995

A passenger wrongfully detained in Kuwait, whilst travelling at the time when Iraq invaded Kuwait, only has right to claim damages under Warsaw Convention.
Lord Allanbridge, Lord Mayfield and Lord Clyde
Times 22-Jun-1995, 1996 SLT 529
Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929
Scotland
Citing:
Distinguished – Gatewhite v Iberia Lineas Aereas de Espana SA 1990
In a contract for the carriage of goods by air, the court considered whether the owner of goods who had not been named as the consignor or consignee on the air waybill was entitled to sue the carrier for damages to the goods while in transit.
Cited by:
Appeal from – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.77611

Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same: HL 13 Dec 1996

The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw Convention rules. The courts should take a purposive construction of the Act: ‘the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the High Contracting Parties without reference to the rules of their own domestic law.’ If a remedy for the injury is not available under the Convention, it is not available at all.
Lord Hope reached the conclusion that the Convention was intended to be comprehensive and exclusive, allowing for the existence of no liabilities other than those for which it provided. He said: ‘The phrase ‘the cases covered by article 17’ extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19. The words ‘however founded’ which appear in article 24(1) and are applied to passenger’s claims by article 24(2) support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carrier’s freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.’ and
‘Here again it seems that a balance has been struck in the interests of uniformity of treatment and of certainty. I see no sign in the generality with which these provisions have been expressed of a recognition that there may be some actions of damages arising from the international carriage of passengers by air which are not subject to these rules. It would be largely destructive of the system which this chapter seems to have been designed to lay down if a passenger were to be able, for example, to maintain a claim of damages for non-bodily injury, for loss of or damage to the personal possessions which he had with him inside the aircraft or for economic loss, outside the conditions and limits set by the Convention while maintaining a claim under the Convention for the bodily injury. . ‘
Otherwise Abnett v British Airways
Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn, Lord Hope of Craighead
Gazette 15-Jan-1997, Times 13-Dec-1996, [1996] UKHL 5, [1997] AC 431, [1997] All ER 193, [1997] 2 WLR 26,
House of Lords, Bailii
Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929, Carriage by Air Act 1961
Scotland
Citing:
Appeal from – Abnett v British Airways Plc (Scotland) IHCS 28-Apr-1995
A passenger wrongfully detained in Kuwait, whilst travelling at the time when Iraq invaded Kuwait, only has right to claim damages under Warsaw Convention. . .
Cited – Grein v Imperial Airways Ltd CA 1937
A passenger met his death whilst travelling on a return air ticket between London and Antwerp. Belgium was not a state contracting under the Convention.
Held: Belgium was engaged on ‘international carriage’ within the meaning of the . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Gatewhite v Iberia Lineas Aereas de Espana SA 1990
In a contract for the carriage of goods by air, the court considered whether the owner of goods who had not been named as the consignor or consignee on the air waybill was entitled to sue the carrier for damages to the goods while in transit.
Cited – T v Secretary of State for the Home Department HL 22-May-1996
The applicant for asylum had been involved in an airport bomb attack killing 10 people. Asylum had been refused on the basis that this was a non-political crime. Though the organisation had political objectives, those were only indirectly associated . .

Cited by:
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Barclay v British Airways Plc CA 18-Dec-2008
The claimant sought damages for personal injury. The airline said that the injury was not the result of an accident within article 17.1. She was walking down the aisle and slipped.
Held: The appeal was dismissed. The meaning of ‘accident’ . .
Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Cited – Dawson v Thomson Airways Ltd CA 19-Jun-2014
The claimant’s flight had been delayed for six hours. The airline said that the claim having been made outside the two year period applicable under the Montreal convention, no compensation was payable.
Held: The claimant’s appeal failed. ‘We . .
Cited – Stott v Thomas Cook Tour Operators Ltd SC 5-Mar-2014
The Court was asked whether a person may recover damages for discomfort and injury to feelings caused by a breach of the 2007 Regulations, which implement EC Regulation No. 1107/2006. The disabled passenger claimant alleged failure by the defendant . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.89254

Warner v Scapa Flow Charters (Scotland): SC 17 Oct 2018

This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of actions. The pursuer’s son was fatally injured diving from a boat hired from the defenders, who now appealed from a decision that the claim was not time-barred.
Held: Mrs Warner’s claim as Vincent’s guardian was not time barred by the Athens Convention. The court should not give a technical meaning to the words ‘suspension and interruption’ which, the appellant asserted, can be derived from certain civil law systems. It is not appropriate to look to the domestic law of certain civil law systems for a technical meaning of the words in an international convention which was designed to be operated in many common law systems as well. Even within civil law systems and mixed legal systems which are strongly influenced by the civil law there was no uniformity in the use of the expression ‘suspension’ in 1974 when the Athens Convention was adopted. Furthermore: ‘an interpretation of article 16(3) of the Athens Convention as excluding domestic rules which have the effect of postponing the start of a limitation period would give rise to serious anomalies. Many legal systems suspend the operation of prescription or limitation when a claimant is a minor or is subject to a recognised legal disability such as mental incapacity. If Mr Howie were correct in his interpretation of ‘suspension’ in the Athens Convention, the Convention would recognise as a ground of suspension a legal incapacity which arose after the prescription or limitation period commenced but not such incapacity that predated the start of that period. A minor born before the commencement of the prescription or limitation period could not take advantage of the added year which article 16(3) provides but a minor born after the commencement of the period would benefit from that added year. A similar anomaly would arise depending on the date on which a creditor or claimant was affected by an incapacity such as mental illness.’ The words in article 16(3) of the Athens Convention, ‘the grounds of suspension . . of limitation periods’ are sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun.
Lady Hale, President, Lord Reed, Deputy President, Lord Sumption, Lord Hodge, Lord Briggs
[2018] UKSC 52, 2019 SCLR 413, [2018] 1 WLR 4974, [2019] 2 All ER 1042, [2018] WLR(D) 651, 2019 SC (UKSC) 1, 2018 SLT 1057, 2018 GWD 32-411, [2019] 1 Lloyd’s Rep 529, [2019] 2 All ER (Comm) 1, UKSC 2017/0103, https://www.supremecourt.uk/cases/docs/uksc-2017-0103-press-summary.pdf
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Jun 28 am Video
Convention relating to the Carriage of Passengers and their Luggage by Sea 16, Prescription and Limitation (Scotland) Act 1973
Scotland
Citing:
At Outer House – Warner v Scapa Flow Charters SCS 14-Jul-2016
(Outer House) The pursuer’s son had died in a diving accident from a boat hired from the defenders whose negligence, she said, was the cause of the injury. The defenders argued that the claim was time-barred.
Held: The Lord Ordinary upheld the . .
Cited – Stag Line v Foscolo, Mango and Company HL 1931
English statutes which give effect to international conventions need to be interpreted with the international origin of the rules well in mind. The Act only applies to contracts of carriage of goods outwards from ports in the United Kingdom, and the . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines HL 28-Feb-2002
Psychiatric Injury under Warsaw Convention
The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That . .
Cited – Higham v Stena Sealink Ltd CA 26-Feb-1996
The Convention limitation period of two years overrode the national period where it was applied. . .
Cited – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.625869

Stag Line v Foscolo, Mango and Company: HL 1931

English statutes which give effect to international conventions need to be interpreted with the international origin of the rules well in mind. The Act only applies to contracts of carriage of goods outwards from ports in the United Kingdom, and the rules will often have to be interpreted in the courts of the foreign consignees, and should be read according to their own meaning without too great reliance on earlier cases.
The Hague Rules are an international convention. Their interpretation is ‘not to be rigidly controlled by domestic principles of antecedent date but they are rather to be construed on broad principles of general acceptation.’ – Lord Macmillan.
Because the rules of an international convention will be applied in the courts of many countries with differing domestic legal systems, our courts have adopted an approach to interpretation which respects the international character of such a document. Lord Macmillan stated: ‘As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation.’
Lord Atkin, Lord Macmillan
[1932] AC 328, (1931) 2 KB 48, (1931) 41 Lloyds Rep 165
Carriage of Goods by Sea Act 1924
England and Wales
Cited by:
Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.181888

Churchward v Rina: QBD 24 Nov 1865

By articles of agreement between the Lords Commissioners of the Admiralty, on behalf of the crown, and C., in consideration of the payments therein stipulated, C. covenanted that he would during the continuance of the contract convey to the satisfaction of the commissioners the mails which should from time to time by the commissioners or the Postmaster-General be required to be conveyed between Dover and Calais, and Dover and Ostend, by means of a sufficient number (not less than six) of vessels of certain tonnage, and properly officered, manned, and equipped. That one or more of such vessels should be at all times ready to convey the Bombay, India, and other distant mails, or for other special service for the government between Dover and Calais, without any charge beyond the subsidy thereinafter mentioned, and also for the like special service between Dover and Ostend, for which the commissioners were to pay 58 pounds. each voyage. In addition, it was to be lawful for the commissioners to require the contractor to provide vessels to convey distinguished persons not exceeding twelve voyages from port to port in any one year free of all charge beyond the said subsidy; but if more than twelve in a year, the voyages in excess to be paid for at the rate of 23 pounds. each. That one of such vessels should leave Dover and Calais respectively every week-day, and one leave Dover and Ostend respectively every alternate week-day. Penalties were then provided for the observance of the contract by the contractor. The commissioners in consideration of the premises, and of the contractor at all times strictly performing the covenants and agreements on his part, agreed, on behalf of the crown, that they would pay him by bills at seven days a sum out of moneys to be provided by parliament, after the rate of 18,000 pounds per annum, by quarterly payments; the first payment to be three months from the commencement of the service. The contract was to commence from the date and continue for eleven years. The contractor was to be at liberty to employ the vessels in other services, subject to the penalties provided, if he was unable also to perform the services contracted for.
Held: that there was in the above agreement only a covenant by the Commissioners, on behalf of the crown, that, in consideration of the contractor performing his part of the contract, by having vessels always ready for the service, the crown would pay him if parliament provided the funds; and that there was no implied covenant on the part of the commissioners to employ the contractor ; and that a petition of right, founded on the agreement, and alleging that the commissioners had refused to employ the contractor to carry the mails, and did not nor would permit him to perform the agreement, and prevented him from carrying the mails, and claiming damages, could not he maintained. On the argument of cross demurrers, the late practice in the Court of Queen’s Bench will at present be adhered to; and the plaintiff, and not the party first demurring, has a right to begin.
(1865-1866) LR 1 QB 173, [1865] UKLawRpKQB 27
Commonlii
England and Wales

Updated: 27 September 2021; Ref: scu.653039

Autorita Garante Della Concorrenza E Del Mercato (Attribution Directe D’Un Contrat De Service Public De Transport) (Transport – Rail Transport – Public Service Contracts – Judgment): ECJ 24 Oct 2019

Reference for a preliminary ruling – Regulation (EC) No 1370/2007 – Public passenger transport services – Rail transport – Public service contracts – Direct award – Obligation to publish a prior information notice in relation to the direct award – Scope
C-515/18, [2019] EUECJ C-515/18
Bailii
European

Updated: 27 September 2021; Ref: scu.665317

Friends of The Earth Ltd and Others, Regina (on The Application of) v Heathrow Airport Ltd: SC 16 Dec 2020

The Court considered a challenge to the proposal for a third runway at Heathrow Airport
Lord Reed, President, Lord Hodge, Deputy President, Lady Black, Lord Sales, Lord Leggatt
[2020] UKSC 52, [2021] PTSR 190
Bailii, Bailii Press Summary, Bailii Issues and Facts
England and Wales

Updated: 27 September 2021; Ref: scu.656804

Blanche v Easyjet Airline Company Ltd: CA 6 Feb 2019

Claim for compensation due to a delayed flight, in circumstances where the respondent carrier asserts that the delay was due to the impact of an air traffic management decision and therefore amounted to ‘extraordinary circumstances’ within the meaning of the relevant European Regulation, namely Regulation (EC) No. 261/2004
[2019] EWCA Civ 69
Bailii
Regulation (EC) 261/2004
England and Wales

Updated: 25 September 2021; Ref: scu.633096

Seismic Shipping Inc and Another v Total E and P UK plc, “The Western Regent”: AdCt 22 Mar 2005

Ships had collided. The ship at fault sought to limit its liability according to its tonnage under the Convention, and requested appropriate directions to calculate its liability.
Held: The court did have jurisdiction to apply the Convention even though no underlying proceedings by way of arbitration or otherwise yet existed in England.
Julian Flaux QC
Times 04-May-2005
Convention on Limitation of Liabillity for Maritime Claims 1976
England and Wales
Cited by:
Appeal from – Seismic Shipping Inc and Another v Total E and P UK Plc ‘The Western Regent’ CA 29-Jul-2005
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.224879

Easyjet Airline Co Ltd (Air Transport – Long Delay of A Flight – Passengers’ Right To Compensation): ECJ 24 Oct 2019

Reference for a preliminary ruling – Rules of Procedure of the Court of Justice – Article 99 – Air transport – Regulation (EC) No 261/2004 – Long delay of a flight – Passengers’ right to compensation – Proof of the passenger’s presence for check-in – Reservation confirmed by the air carrier
C-756/18, [2019] EUECJ C-756/18_CO
Bailii
European

Updated: 15 September 2021; Ref: scu.665342

Compagnie Commercial Andre S A v Artibell Shipping Company Limited and the Governor and Company of the Bank of Scotland: SCS 7 Jan 1999

The pursuers employed the defenders to carry sugar across Iraq. The voyage had been abandoned. The defenders challenged the proceedings as to jurisdiction and otherwise.
Lord MacFadyen
[1999] ScotCS 2
Bailii
Scotland
Cited by:
See also – Compangnie Commerciale Andre S A v Artibell Shipping Co Ltd and the Governor and Company of the Bank of Scotland SCS 21-Feb-2001
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.163434

Edinburgh Street Tramways Co v Black and Others: HL 8 Jul 1873

This was an appeal from a judgment of the First Division in an action of suspension and interdict, raised by Messrs Black and others, owners and occupiers in North Bridge Street, against the Edinburgh Tramways Company, and its object was to compel the Company to remove their rails at certain points ex adverso of the suspenders’ property, on the ground that the statutory distance of 9 feet 6 inches had not been left between the outer rails of the tramway and the curb-stone.
The First Division, adhering to the interlocutor of the Lord Ordinary (Gifford), gave judgment for the suspenders.
The Tramways Company appealed.
Where the provisions of a Special Act of Parliament conflicted with those of a General Act incorporated with it- Held (reversing the judgment of the Court of Session) that the latter must prevail, and that the deposited plans and sections had by reference been made part of the Special Act, to which it was too late to object.
[1873] UKHL 2 – Paterson – 206, [1873] UKHL 654, 10 SLR 654
Bailii, Bailii
Scotland

Updated: 14 September 2021; Ref: scu.652919

Brand and Wife v Hammersmith, and co, Railway Company: QBD 27 Nov 1865

The owner of a house, none of whose lands have been taken for the purposes of the railway, cannot under the Lands Clauses Consolidation Act, 1845, or the Railway Clauses Consolidation Act, 1845, recover compensation in respect of injury to the house depreciating its value, caused by vibration, smoke, and noise, in running locomotives with trains in the ordinary manner, after the construction of the railway.
(1865-1866) LR 1 QB 130, [1865] UKLawRpKQB 31
Commonlii
England and Wales

Updated: 14 September 2021; Ref: scu.653042

Lloyd v Guibert and Others: QBD 27 Nov 1865

Where the contract of affreightment does not provide otherwise, as between the parties to the contract, in respect of sea damage and its incidents, the law of the country to which the ship belongs must be taken to be the law to which they have submitted themselves. The plaintiff, a British subject, chartered a French ship belonging to French owners, at a Danish West India port, for a voyage from St. Marc, in Hayti, to Havre, London, or Liverpool, at charterer’s option. The charter-party was entered into by the master in pursuance of his general authority as master. The plaintiff shipped a cargo at St. Marc for Liverpool, with which the vessel sailed. On her voyage she sustained sea damage and put into Fayal, a Portuguese port, for repair. There the master properly borrowed money on bottomry of ship, freight, and cargo, and repaired the ship, and she completed her voyage to Liverpool. The bondholder proceeded in the Court of Admiralty against the ship, freight, and cargo. The ship and freight were insufficient to satisfy the bond; and the deficiency with costs fell on the plaintiff as owner of the cargo, for which he sought indemnity against the defendants, the French shipowners. The defendants gave up the ship and – freight to the shipper, so as that, by the alleged law of France, the abandonment absolved them from all further liability on the contract of the master.
Held: that the parties must be taken to have submitted themselves, when making the charter-party, to the French law as the law of the ship, and therefore that, assuming the law of France to be as alleged, the plaintiff’s claim was absolutely barred.
[1865] EngR 750, (1865) 6 B and S 100, (1865) 122 ER 1134, [1865] UKLawRpKQB 30, (1865-1866) LR 1 QB 115
Commonlii, Commonlii
England and Wales

Updated: 12 September 2021; Ref: scu.281662

Commission v France: ECJ 20 Sep 2001

Europa Failure by a Member State to fulfill its obligations – Directive 96/50/EC – Carriage of goods and passengers in the Community – Harmonisation of the conditions for obtaining national boat masters’ certificates for inland waterways – Non-implementation within the prescribed period.
[2001] EUECJ C-468/00, C-468/00
Bailii
European

Updated: 10 September 2021; Ref: scu.166214

Norwich Corporation v Norwich Electric Tramways: CA 18 May 1906

There was a provision made by the Legislature that disputes mentioned in the section of the Act were to be determined by an Expert nominated by the Board of Trade and it was contended that though not in the strict technical sense estoppel, it was a waiver of the provisions introduced into the Statute for the benefit of private rights.
Held: An objection as to jurisdiction can be taken at any stage of the proceedings, and not only can but should be taken by the court of its own motion if apparent.
Vaughan Williams LJ said: ‘The case is not like that of a provision in an agreement which is for the benefit of one of the parties and which he may waive. This is a provision in an Act of Parliament, which, though to some extent it may be for the benefit of the parties to the difference, must be regarded as inserted in the interest of the public also.’
Vaughan Williams LJ, Stirling LJ, Fletcher Moulton LJ
[1906] 2 KB 119, [1906] UKLawRpKQB 69, (1906) 22 TLR 553, (1906) 95 LT 12, (1906) 70 JP 401, (1906) 75 LJKB 636
Commonlii
Tramways Act 1870 33
England and Wales
Cited by:
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.229697

Dyke v Elliott (The ‘Gauntlet’): PC 9 Feb 1872

A French Ship of War captured in the English Channel a Prussian Ship as prize of war. A prize crew under a French naval Officer was put on board. The prize Ship being driven by stress of weather into the Downs, anchored within British waters, and after lying there two days the French Consul at Dover engaged an English Steam-tug, then lying in the Downs, to tow the captured Ship from British waters to a port of the Captors and under such agreement the Tug towed the prize to Dunkirk Roads. In a suit instituted on behalf of the Crown for condemnation of the Tug for violation of the Foreign Enlistment Act of 1870 (33 and 34 Viet. c. 90), the Judge of the Court of Admiralty held, that no offence had been committed under that Statute, as the Steam-tug was not employed in the military or naval service of France, as declared by the 8th section of the Act, and dismissed the suit, condemning the Crown in costs. On appeal, Held, by the Judicial Committee (reversing such decree), that the engagement by the Owners of the Tug for the express purpose of towing the detached prize crew, its Prisoners and prize Vessel, speedily and safely to French waters, where the Prisoners and prize would be taken charge of by the French authorities, and the prize crew set free, was dispatching a Ship, within the meaning of sect. 8 of the Foreign Enlistment Act of 1870, for the purpose of taking part in the naval service of a belligerent, and condemned the Tug as a forfeiture to the Crown.
Whether a Court of Admiralty has power, under the Foreign Enlistment Act, 1870, to condemn the Crown in costs, Quaere.
James LJ said: ‘No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’
James LJ
[1872] UKLawRpPC 6, (1871-1873) LR 4 PC 184
Commonlii
Foreign Enlistment Act 1870
England and Wales
Citing:
Appeal from – The Gauntlet (No 2) (Dyke v Elliott) AdCt 2-Aug-1871
During the late war between the North German Confederation and France, a Prussian merchant vessel was captured in the English Channel, as prize of war, by a ship in the service of the government of France. A prize crew, under the command of an . .

Cited by:
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.653249

Republic of India v India Steamship Co Ltd (Indian Endurance and Grace (No 2): CA 1 May 1996

An action against ship in rem prevents a personal action against the owner; there would be a risk of double jeopardy.
Times 01-May-1996
Civil Jurisdiction and Judgments Act 1982 34
England and Wales
Citing:
See Also – Republic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1) HL 29-Mar-1993
Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo . .

Cited by:
Appeal from – Republic of India and Another v India Steamship Co Ltd (Indian Endurance and Indian Grace) (No 2) HL 23-Oct-1997
When a action in rem against a ship was in fact parallel to an action in personam begun in India and awaiting a decision; an action was not to be allowed here.
Lord Steyn: ‘It is settled that an estoppel by convention may arise where parties to . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.88742

Colley v Overseas Exporters: 1921

Sellers brought an action for the price of goods sold on terms fob Liverpool. The buyers made five successive nominations of vessels to take delivery of the cargo but in each case the vessel was eventually unable to take the goods. No effective nomination was made, the goods remained at the dock awaiting shipment, and the sellers brought an action for the price. The argument advanced on behalf of the sellers was that because it was the buyers’ own fault which had prevented the goods being put on board, the buyers were disabled from saying that the price, which would have been payable if and when the goods had actually been put on board, was not now due to the sellers.
Held: The argument was rejected. Judgment was given for the buyers, there being no alternative claim for damages. Having found that s. 49(1) did not apply because property would not pass until the goods were loaded on board under standard fob terms, and that s. 49(2) did not apply because there was no agreement as to payment of the price on a day certain, he held at p. 310 that those findings were fatal to an action on the price because s. 49 was exclusive:
‘The existing condition of the law is put in Benjamin on Sale, 6th ed., p. 946, where it is rightly stated that the old principles ‘are by implication preserved by s. 49 of the code’. And the learned editor adds: ‘Where property has not passed, the seller’s claim must, as a general rule, be damages for non-acceptance.’ An exception to the general rule is to be found in the cases provided for by s. 49, sub-s. 2, of the code. In my opinion (subject to what I say hereafter as to estoppel), no action will lie for the price of goods until the property has passed, save only in the special cases provided for by s. 49, sub-s. 2. This seems plain both on the code and on common law principle. I have searched in vain for authority to the contrary.’
McCardie J
[1921] 3 KB 302, [1921] All ER 596
England and Wales
Cited by:
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.618133

Liberty Insurance Pte Ltd and Another v Argo Systems Fze: CA 15 Dec 2011

‘Saying nothing and ‘standing by’, ie. doing nothing, are, to my mind, equivocal actions. This court has stated that, in the absence of special circumstances, silence and inaction are, when objectively considered, equivocal and cannot, of themselves, constitute an unequivocal representation as to whether a person will or will not rely on a particular legal right in the future’
Lord Justice Aikens
[2011] EWCA Civ 1572
Bailii
England and Wales
Citing:
Appeal from – Argo Systems FZE v Liberty Insurance (PTE) and Another ComC 21-Feb-2011
. .

Cited by:
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.450051

Republic of India and Another v India Steamship Co Ltd (Indian Endurance and Indian Grace) (No 2): HL 23 Oct 1997

When a action in rem against a ship was in fact parallel to an action in personam begun in India and awaiting a decision; an action was not to be allowed here.
Lord Steyn: ‘It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being shared by them both or made by one and acquiesced in by the other . . It is not enough that each of the parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.’
Lord Steyn
Gazette 12-Nov-1997, Times 23-Oct-1997, [1997] UKHL 40, [1997] 4 All ER 380, [1997] 3 WLR 818, [1998] AC 878
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982
England and Wales
Citing:
Appeal from – Republic of India v India Steamship Co Ltd (Indian Endurance and Grace (No 2) CA 1-May-1996
An action against ship in rem prevents a personal action against the owner; there would be a risk of double jeopardy. . .

Cited by:
Cited – Ace Insurance Sa-Nv v Surendranath Seechurn CA 6-Feb-2002
The claimant sought payment under an insurance policy for his permanent disability. The judge had found that the defendant insurers had indicated a readiness to continue negotiations beyond the limitation period, and that they would apply for a stay . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Scottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.88739

Fram-Jee Cowas-Jee v William Thompson And Henry Kebbel: 20 Jun 1845

Goods contracted to be sold and delivered ‘free on board,’ to be paid for by cash or bills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lighterman, employed by the sellers, who handed the same over to them. The sellers apprized the purchasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purchasers. The sellers retained the mate’s receipts for the goods, but the master signed the bill of lading in the purchasers’ names, who, while the bill they accepted was running, became insolvent. In such circumstances, held by the Judicial Committee of the Privy Council (reversing the verdict and judgment of the Supreme Court at Bombay), that trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the sellers; and that the retention of the receipts by the sellers was immaterial, as after their election to be paid by a bill, the receipts of the mate were not essential to the transaction between the seller and purchaser.
[1845] EngR 1007, (1845) 3 Moo Ind App 422, (1845) 18 ER 560
Commonlii
England and Wales

Updated: 24 August 2021; Ref: scu.304149

Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No 2)): HL 1982

Lord Diplock regarded the nature of the contractual promise by the charterer in what he called the safe port clause as having been well settled for a quarter of a century at the very least: ‘It was correctly and concisely stated by Sellers L.J. in Leeds Shipping Co. Ltd. v. Societe Francaise Bunge (The Eastern City) [1958] 2 Lloyd’s Rep. 127 in a classic passage which, in its reference to ‘abnormal occurrence,’ reflects a previous statement in the judgment of Morris L.J. in Compania Naviera Maropan S.A. v. Bowaters Lloyd Pulp and Paper Mills Ltd. Sellers L.J. said . . ‘a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship’ . . It is with the prospective safety of the port at the time when the vessel will be there for the loading or unloading operation that the contractual promise is concerned and the contractual promise itself is given at the time when the charterer gives the order to the master or other agent of the shipowner to proceed to the loading or unloading port.’
Lord Roskill explained the ‘abnormal occurrence’ exception: ‘In order to consider the scope of the contractual promise which these eight words impose upon a charterer, it must be determined how a charterer would exercise his undoubted right to require the shipowner to perform his contractual obligations to render services with his ship, his master, officers and crew, the consideration for the performance of their obligation being the charterer’s regular payment of time charter hire. The answer must be that a charterer will exercise that undoubted contractual right by giving the shipowner orders to go to a particular port or place of loading or discharge. It is clearly at that point of time when that order is given that that contractual promise to the charterer regarding the safety of that intended port or place must be fulfilled. But that contractual promise cannot mean that that port or place must be safe when that order is given, for were that so, a charterer could not legitimately give orders to go to an ice-bound port which he and the owner both knew in all human probability would be ice-free by the time that vessel reached it. Nor, were that the nature of the promise, could a charterer order the ship to a port or place the approaches to which were at the time of the order blocked as a result of a collision or by some submerged wreck or other obstacles even though such obstacles would in all human probability be out of the way before the ship required to enter. The charterer’s contractual promise must, I think, relate to the characteristics of the port or place in question and in my view means that when the order is given that port or place is prospectively safe for the ship to get to, stay at, so far as necessary, and in due course, leave. But if those characteristics are such as to make that port or place prospectively safe in this way, I cannot think that if, in spite of them, some unexpected and abnormal event thereafter suddenly occurs which creates conditions of unsafety where conditions of safety had previously existed and as a result the ship is delayed, damaged or destroyed, that contractual promise extends to making the charterer liable for any resulting loss or damage, physical or financial. So to hold would make the charterer the insurer of such unexpected and abnormal risks which in my view should properly fall upon the ship’s insurers under the policies of insurance the effecting of which is the owner’s responsibility under clause 3 unless, of course, the owner chooses to be his own insurer in these respects.’
Lord Denning set out to define a ‘safe port’: ‘What then are the characteristics of a ‘safe port’? What attributes must it possess and retain if the charterer is to fulfil his warranty? To my mind it must be reasonably safe for the vessel to enter, to remain, and to depart without suffering damage so long as she is well and carefully handled. Reasonably safe, that is, in its geographical configuration on the coast or waterway and in the equipment and aids available for her movement and stay. In short, it must be safe in its set-up as a port. To elaborate a little, every port in its natural state has hazards for the ships going there. It may be shallows, shoals, mudbanks, or rocks. It may be storms or ice or appalling weather. In order to be a ‘safe port’, there must be reasonable precautions taken to overcome these hazards, or to give sufficient warning of them to enable them to be avoided. There must be buoys to mark the channel, lights to point the way, pilots available to steer, a system to forecast the weather, good places to drop anchor, sufficient room to manoeuvre, sound berths, and so forth. In so far as any of these precautions are necessary – and the set-up of the port is deficient in them – then it is not a ‘safe port’. Once the set-up of the port is found to be deficient – such that it is dangerous for the vessel when handled with reasonable care – then the charterer is in breach of his warranty and he is liable for any damage suffered by the vessel in consequence of it. To illustrate this proposition, I will give some of the deficiencies in set-up which have been held to render a port unsafe: Its tendency to be ice-bound during that very winter: see G. W. Grace and Co. v. General Steam Navigation Co. Ltd., (1950) 83 Ll.L.Rep. 297; [1950] 2 K.B. 383. Its tendency to sudden storms, endangering a vessel of this size in this bay: see The Stork, [1955] 1 Lloyd’s Rep. 349; [1955] 2 Q.B. 68. The absence of navigational aids such as a hauling-off buoy or waling-piece: see The Houston City, [1956] 1 Lloyd’s Rep 1; [1956] AC 266. The lack of reliable holding ground in the anchorage area: see The Eastern City, [1958] 2 Lloyd’s Rep. 127 . . The absence of an adequate weather forecasting system: see The Dagmar, [1968] 2 Lloyd’s Rep. 563. The absence of adequate room to manoeuvre in bad weather: see The Khian Sea, [1979] 1 Lloyd’s Rep. 545. The tendency of the channel to become silted up so as to produce narrowing or shoaling: see The Pendrecht, [1980] 2 Lloyd’s Rep. 56 and Transoceanic Petroleum Carriers v. Cook Industries Inc. (The Mary Lou), [1981] 2 Lloyd’s Rep. 272.
On the other hand, if the set-up of the port is good but nevertheless the vessel suffers damage owing to some isolated, abnormal or extraneous occurrence – unconnected with the set-up – then the charterer is not in breach of his warranty. Such as when a competent berthing-master makes for once a mistake, or when the vessel is run into by another vessel, or a fire spreads across to her, or when a hurricane strikes unawares. The charterer is not liable for damage so caused.
Lord Diplock, Lord Roskill, Lord Denning
[1982] 2 Lloyds Rep 307, [1982] 3 WLR 637, [1983] 1 AC 736, [1982] 3 All ER 350
England and Wales
Citing:
Cited – Reardon Smith Line Limited v Australian Wheat Board (The Houston City) PC 26-Jan-1956
(Australia) . .
Cited – Compania Naviera Maropan S/A v Bowater’s Pulp and Paper Mills Limited (The Stork) CA 1954
Where, in breach of charterparty, charterers order a vessel to proceed to an unsafe port, the conduct of the vessel’s master in obeying the order (placed as he well may be, on the horns of a dilemma) will be judged sympathetically, in context and . .
Appeal from – Kodros Shipping Corporation of Monrovia v Empresa Cubana De Fletes (The Evia (No 2)) CA 1982
. .

Cited by:
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.641387

China Pacific SA v Food Corpn of India (The Winson): HL 1982

A cargo of wheat was loaded in the US for delivery to Bombay. The ship was stranded on a reef in the South China Sea. Salvors entered into a salvage agreement with the shipowners and cargo owners on Lloyds open form. In performance of that contract the salvors lightened the vessel by offloading part of the cargo into barges and carrying it to Manila as a place of safety. There the salvors arranged for it to be stored under cover, in part on a vessel in the harbour and in part in a bonded warehouse ashore. The salvors sought to recover the costs of such storage from the cargo owners, being the stevedoring and charter costs of arranging storage on the vessel in the harbour, and the warehouse charges they had to pay for the warehousing ashore. The storage was both reasonable and necessary for the preservation of the cargo and to prevent its deterioration. The claim had succeeded before Lloyd J, but overturned at the Court of Appeal.
Held: The decision was re-instated. The case turned on the application of ‘well known and basic principles of the common law of salvage, of bailment and of lien.’ The bailee was left in possession of the goods after the termination of the contract under which the bailment had originally been made, and in the absence of any contrary instructions from the cargo-owner, the warehousing of the goods was necessary for their preservation.
Lord Diplock noted that the case had been argued throughout on the basis that the salvage contract had come to an end at the time the cargo arrived in Manila, whilst leaving open whether that assumption was correct. The salvors were entitled to recover the storage costs from cargo owners because as bailees they: ‘the bailment which up to the conclusion of the salvage services had been a bailment for valuable consideration became a gratuitous bailment; and so long as that relationship of bailor and bailee continued to subsist the salvors, under the ordinary principles of the law of bailment too well known and too well-established to call for any citation of authority, ‘owed a duty of care to the cargo owner to take such measures to preserve the salved wheat from deterioration by exposure to the elements as a man of ordinary prudence would take for the preservation of his own property . . and if he fulfils that duty he has, in my view, a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so.’
and ‘It is, of course, true that in English law a mere stranger cannot compel an owner of goods to pay for a benefit bestowed upon him against his will; but this latter principle does not apply where there is a pre-existing legal relationship between the owner of the goods and the bestower of the benefit, such as that of bailor and bailee, which imposes upon the bestower of the benefit a legal duty of care in respect of the preservation of the goods that is owed by him to their owner.’
Lord Simon of Glaisdale, concurring, thought that to confine agency of necessity to cases where the issue was the bailee’s authority to bind the bailor to contracts with third parties was ‘justified by the fact that the law of bailment will often resolve any issue between alleged principal and agent of necessity, as it has done here.’
Diplock, Keith, Roskill and Brandon LL
[1982] AC 939
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.
Updated: 22 August 2021; Ref: scu.462940

Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos): HL 28 Oct 1994

In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter terms. Time was of the essence. The correct date for assessment of the legitimacy of the order was the date on which the vessel completed discharged and was ready to proceed on her last voyage, by which time, on the facts it had become apparent that she could not complete that voyage and be redelivered in accordance with the charterparty. The order previously given then became invalid and the charterers’ persistence in requiring it to be obeyed was repudiatory.
Lord Mustill said: ‘Questions of this kind are better decided by looking at what the contract says than by speculating on the practical outcome of preferring one solution to another. Naturally, no judge will favour an interpretation which produces an obviously absurd result unless the words used drive him to it, since it is unlikely that this is what the parties intended. Where there is no obvious absurdity and simply assertions by either side that its own interpretation yields a more sensible result, there is room for error.’
. . And ‘Finally, some of the legal consequences of late redelivery have been worked out. There remain a number of unanswered questions, with some of which your Lordships are now concerned.’
and ‘At first sight, this apparently anomalous result is a good reason for questioning whether the claim for repudiation was soundly based. On closer examination, however, the anomaly consists, not so much in the size of the damages, but in the fact that damages were awarded at all. Imagine that the without prejudice agreement had not been made, and that the owners, having treated the charter as wrongfully repudiated, had accepted a substitute fixture with Navios. If one then asked what loss had the repudiation caused the owners to suffer, the answer would be – None. On the contrary, the charterers’ wrongful act would have enabled the owners to make a profit. Even if they had not accepted the substitute employment they might very well have suffered no loss, since they would have been in the favourable position of having their ship free in the right place at the right time to take a spot fixture on a rising market. In neither event would the owners ordinarily recover any damages for the wrongful repudiation.’
Lord Mustill
Independent 15-Nov-1994, Times 28-Oct-1994, [1994] 1 WLR 1465, [1995] 1 Lloyd’s Rep 1
England and Wales
Citing:
At First Instance – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .
Appeal from – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .

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 . .
Cited – Digital Integration Limited v Software 2000 CA 16-Jan-1997
The parties had entered into a contract for the distribution of software by the plaintiff. The contract was terminated by the plaintiff and the defendant argued that this was in breach of the agreement, and that a sub-clause which apparently gave . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Century 2000 Enterprises Ltd and Another v SFI Group Plc CA 11-Dec-2001
The claimants appealed against rejection of their claim that an agreement entitled them to take a 35 years lease of the defendants. The contract had depended on complex conditions as to planning consents.
Held: The appeal failed: ‘Ultimately, . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.89921

Union Transport Plc v Continental Lines Sa and Another: HL 15 Jan 1992

Two obligations in a charterparty which had not been fulfilled, namely the obligation to nominate a vessel, to be the subject matter thereof, and the obligation to provide it.
Held: The former was the principal obligation. Lord Goff said: ‘Nomination of a vessel under such a contract is not a mere naming of a vessel; it is rather the identification of the subject matter of the contract, with the effect that the name of the vessel, once nominated, becomes written into the contract . . nomination of the vessel triggers certain other obligations under the contract, notably in the present case obligations on the plaintiffs to keep the defendants and their agents fully informed of the position of the vessel so nominated, and to give advance notice of her arrival on each of the five days preceding her arrival at the loading port . . Furthermore under such a charter, I do not see how, until there has been a nomination, there can be any duty to cause any particular vessel to proceed to the loading port . . I do not reach this conclusion on the ground that the performance of the obligation to nominate precedes in point of time the performance of the obligation to provide the vessel. I do so because the obligation to nominate it is for the reasons I have given a more fundamental obligation.’
As to jurisdiction, English courts had jurisdiction to hear a claim because under the charterparty contract, the place of performance of the ship and tonnage nomination was deemed to be in London. Accordingly the Belgian company could be sued in England for damages.
Lord Goff of Chievely
Gazette 15-Jan-1992, [1992] 1 All ER 161, [1992] 1 WLR 15, [1992] 1 Lloyds Rep 229
Civil Jurisdiction and Judgments Act 1982 3(1) Sched 1 Art 5(1)
England and Wales
Citing:
Cited – Hassan Shenavai v Klaus Kreischer ECJ 15-Jan-1987
ECJ Whereas in the case of an action based on an obligation under a contract of employment or another contract with the same particularities for work other than on a self-employed basis the relevant obligation . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.90063

Landcatch Limited v The Braer Corporation and Williams and Jones and Hudner and Assurance Foreningen Skuld and the International Oil Pollution Compensation Fund: IHCS 19 May 1999

The pursuers raised freshwater salmon (smolt) to the age of two before selling them on. An oil spill prevented them trading. They appealed a refusal of damages on the baiss that this was pure relational economic loss.
Held: The appeal failed. Losses which arose following an environmental accident but which were related to particularly advantageous market conditions but for a prospective contract only were properly secondary economic losses and not recoverable under the Act. No distinction was drawn between the smolt that were sold for less than expected and those which were culled.
Lord Justice Clerk and Lord Cowie and Lord McCluskey
Times 14-Jun-1999, [1999] ScotCS 117, [1999] 2 Lloyd’s LR 316
Bailii, ScotC
Merchant Shipping (Oil Pollution) Act 1971 5(3)
Scotland
Citing:
Appeal from – Landcatch Ltd v The Braer Corporation and Others OHCS 6-Mar-1998
The pursuers reared salmon eggs to the age of two years (smolt), before then selling them on. The defenders caused an oil spill, and the area was designated as an exclusion zone preventing the pursuers continuing their trade and could not sell their . .

Cited by:
Cited – R J Tilbury and Sons (Devon) Ltd t/A East Devon Shellfish v Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’), Assurance Foreningen Skuld (Gjensidig) and the International Oil Pollution Compensation Fund 1971 CA 7-Feb-2003
The applicants had a business processing whelks. After the loss of the Sea Empress, an order was made prohibiting the sale of seafood from the area. They appealed a refusal of compensation for their losses. The respondents would be liable to make . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
See Also – Landcatch Limited v International Oil Pollution Compensation Fund IHCS 19-May-1999
. .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.163549

Dornoch Ltd and Others v Westminster International Bv and Others: AdCt 29 Apr 2009

The vessel, a mega trailer having been lost, the underwriters claimed rights in it having paid under the policies, and the owners tendered notice of abandonment to the hull and machinery underwriters. The next day underwriters declined to accept notice of abandonment but agreed to place the assured in the same position as if a writ/claim form had been issued that day. This is time honoured and common if not universal practice.
Tomlinson J
[2009] EWHC 889 (Admlty), [2009] 2 Lloyd’s Rep 191, [2009] Lloyd’s Rep IR 573, [2009] 1 CLC 645, [2009] 2 All ER (Comm) 399
Bailii
England and Wales
Citing:
See Also – Dornoch Ltd and Others v Westminster International Bv and Others AdCt 12-Feb-2009
Claim following total loss of a mega trailer hopper dredger, the WD Fairway. The underwriters say that they had impliedly accepted the abandonment and exercised their rights to take over the vessel pursuant to Sections 63(1) and/or 79(1) of the . .

Cited by:
See Also – Dornoch Ltd and Others v Westminster International Bv and Others Adct 17-Jul-2009
. .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.347099

Dornoch Ltd and Others v Westminster International Bv and Others: AdCt 12 Feb 2009

Claim following total loss of a mega trailer hopper dredger, the WD Fairway. The underwriters say that they had impliedly accepted the abandonment and exercised their rights to take over the vessel pursuant to Sections 63(1) and/or 79(1) of the Marine Insurance Act 1906. That implied acceptance and/or exercise of rights was confirmed when the insured offered to purchase the vessel from the hull and machinery underwriters for 25 million Euros, which offer was rejected.
The underwriters say that in these circumstances they were entitled to possession of the vessel and to call for registration in their name. They also say that the insured held the vessel on trust for the hull and machinery underwriters, alternatively that the hull and machinery underwriters had an equitable lien on the vessel in their respective proportions.
Tomlinson J
[2009] EWHC 201 (Admlty), [2009] Lloyd’s Rep IR 540
Bailii
England and Wales
Cited by:
See Also – Dornoch Ltd and Others v Westminster International Bv and Others AdCt 29-Apr-2009
The vessel, a mega trailer having been lost, the underwriters claimed rights in it having paid under the policies, and the owners tendered notice of abandonment to the hull and machinery underwriters. The next day underwriters declined to accept . .
See Also – Dornoch Ltd and Others v Westminster International Bv and Others Adct 17-Jul-2009
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.347098

BP Exploration Operating Co Ltd v Chevron Transport (Scotland): HL 18 Oct 2001

A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was now time barred.
Held: Subject to interruption, the limitation period continued to run whatever the cause of the delay. For the purposes of the 1847 Act, any charterer, including a bareboat charterer was not the ‘owner’ of a vessel.
Lord Slynn of Hadley Lord Hope of Craighead Lord Clyde Lord Hobhouse of Wood-borough Lord Millett
Times 19-Oct-2001, Gazette 22-Nov-2001, [2001] UKHL 50, 2001 SLT 1394, 2002 SC (HL) 19, 2001 SCLR 1029, [2002] 1 All ER (Comm) 1, [2002] 1 LLR 77, 2001 GWD 33-1316, [2003] 1 AC 197, [2001] 3 WLR 949
House of Lords, Bailii
Prescription and Limitation (Scotland) Act 1973 6(4), Harbours, Docks and Piers Clauses Act 1847 74, Zetland County Council Act 1974 4
Scotland
Citing:
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) QBD 1978
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’. . .
Cited – Workington Harbour and Dock Board v Towerfield (Owners) (‘The Towerfield’) HL 1951
The occasions upon which the master is called upon to exercise his reserve of authority either by interfering with the conduct of the ship or by taking the navigation out of the hands of a competent pilot are rare and should the master exercise that . .
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
At Outer House – BP Exploration Operating Company Ltd v Chevron Shipping Company; Same v Chevron Tankers (Bermuda) Ltd; Same v Chevron Transport Corporation OHCS 26-Jan-1999
Where an action had been delayed beyond the five year prescription period because of an error induced by the party sued, the prescriptive period did not restart until the party was disabused of its mistake. . .
Appeal from – BP Exploration Operating Co Ltd v Chevron Shipping Company and Chevron Tankers (Bermuda) Ltd and Chevron Transport Corporation SCS 13-Apr-2000
. .

Cited by:
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
See Also – BP Exploration Operating Co Ltd v Chevron Shipping Company Chevron Transport Corporation Chevron Tankers (Bermuda) Limited OHCS 13-Nov-2002
. .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.166630

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 European Directive, and, secondly, whether the hybrid bill procedure, as proposed, would comply with the procedural requirements of European law. The Court of Appeal decided both issues against the appellants, the first by a majority (Sullivan LJ dissenting).
Held: The appeal failed, and a reference to the ECJ was refused.
The strategy document was not itself a plan requiring setting the framework for future development consent: ‘It is a very elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament.’
Lord Reed set out the nature of a hybrid bill: ‘A hybrid bill shares certain characteristics of a public bill and a private bill. The Speaker has defined a hybrid bill as ‘a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class’ (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath
[2014] UKSC 3, [2014] 2 All ER 109, [2014] PTSR 182, [2014] WLR(D) 28, [2014] 1 WLR 324, UKSC 2013/0172
Bailii, WLRD, Bailii Summary, SC, SC Summary
Strategic Environmental Assessment Directive (Parliament and Council Directive 2001/42/EC, Town and Country Planning (Environmental Impact Assessment) Regulations 2011, Bill of Rights 1689 9, Directive 85/337/EEC, OJ 1985, L 175/40
England and Wales
Citing:
At First Instance – Buckinghamshire County Council and Others, Regina (on The Application of) v Secretary of State for Transport Admn 15-Mar-2013
The claimants challenged the strategy published by the government for the development of the propose HS2 railway line, saying that it required first a strategic environmentalimpact assessment under European law.
Held: The claim failed. The . .
Appeal from – HS2 Action Alliance Ltd and Others v Secretary of State for Transport CA 24-Jul-2013
The claimants challenged the plan for a major railway development, saying that an environmental impact assessment should have been made first.
Held: (Sullivan LJ dissenting) The claimant’s appeal failed. The strategy as proposed was not such . .
Cited – Terre Wallonne v Wallonia ECJ 17-Jun-2010
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Nomarchiaki Aftodioikisi Aitoloakarnanias And Others ECJ 13-Oct-2011
ECJ Opinion – Environmental protection – Directive 200/60/CE – Policy of the Union in the field of water – Deviation of the course of a river – Concept of time limit for establishing management plans for river . .
Cited – Inter-Environnement Bruxelles v Gouvernement de la Region de Bruxelles-Capitale ECJ 22-Mar-2012
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Concept of plans and programmes ‘which are required by legislative, regulatory or administrative . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Wiener SI GmbH v Hauptzollamt Emmerich ECJ 20-Nov-1997
ECJ Subheading 60.04 B IV b 2 bb of the Common Customs Tariff, in the version resulting from Regulation No 3400/84 amending Regulation No 950/68 on the Common Customs Tariff, must be construed as covering under . .
Cited – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – Lee v Bude and Torrington Junction Railway Co 1871
It was alleged that Parliament had been induced to pass an Act by fraudulent recitals.
Held: Willes J said: ‘Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Cited – Nomarchiaki Aftodioikisi Aitoloakarnanias And Others ECJ 13-Oct-2011
ECJ Opinion – Environmental protection – Directive 200/60/CE – Policy of the Union in the field of water – Deviation of the course of a river – Concept of time limit for establishing management plans for river . .
Cited – Boxus And Roua (Environment And Consumers) ECJ 18-Oct-2011
ECJ Grand Chamber – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Scope – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in . .
Cited – Boxus And Roua (Environment And Consumers) ECJ 18-Oct-2011
ECJ Grand Chamber – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Scope – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in . .
Cited – Marie-Noelle Solvay and Others v Region wallonn ECJ 16-Feb-2012
ECJ Assessment of the effects of projects on the environment – Concept of legislative act – Force and effect of the guidance in the Aarhus Convention Implementation Guide – Consent for a project given without an . .
Cited – WWF and Others v Autonome Provinz Bozen and Others C-435/97 ECJ 16-Sep-1999
ECJ Environment – Directive 85/337/EEC – Assessment of the effects of certain public and private projects . .
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Franklin v Minister of Town and Country Planning HL 2-Jul-1947
A government minister had decided to confirm a draft new town order following a public local inquiry. One of the grounds on which the decision was challenged was that the minister could not consider the report and the objections without a . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – 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 . .
Cited – International Association of Independent Tanker Owners and others v Secretary of State for Transport ECJ 3-Jun-2008
Maritime transport Ship-source pollution Directive 2005/35/EC – Validity United Nations Convention on the Law of the Sea Marpol 73/78 Convention – Legal effects of the Conventions – Ability to rely on them Serious negligence – Principle of legal . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Commission v Ireland C-50/09 ECJ 3-Mar-2011
ECJ (Environment And Consumers) Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain . .

Cited by:
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.520061

Watson and Co v Shankland and Others: HL 17 May 1873

A ship was chartered to proceed to Calcutta and there load a cargo from the charterers for the United Kingdom,’ the freight to be paid on unloading and right delivery of the cargo.’ The charter-party contained the following clause:-‘Sufficient cash for ship’s ordinary disbursements to be advanced the master against freight, subject to interest, insurance, and 2 1 2 per cent. commission.’ Advances were made by the charterers at Calcutta, and the ship was lost on the homeward voyage.- Held (affirming judgment of Court of Session) that the charterers had given up their right to recover their advances from the owners.
Lord Chancellor Selborne and Lords Chelmsford, Colonsay, and Cairns
[1873] UKHL 450
Bailii
England and Wales

Updated: 11 August 2021; Ref: scu.652915

Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited: ChD 16 Dec 2003

The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the parties had agreed to secure jointly, and that the new licence was held in trust for all parties.
Held: There was no partnership; each company operated separately. Even so, the defendants were in breach of the agreement they made to make a joint tender and it was not conscionable for them to have made a bid without reference to the Claimant and to retain the benefit of that bid without recompense to the Claimant.
The Honourable Mr Justice Peter Smith
[2003] EWHC 3093 (Ch)
Bailii
England and Wales
Citing:
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
banner_luffCA2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Weiner v Harris CA 18-Nov-1909
The plaintiff, a manufacturing jeweller, was accustomed to send articles of jewellery to F, a retail jeweller, for sale on the terms of a letter written by F to the plaintiff, in which F, after acknowledging that he had had from the plaintiff ‘on . .
Cited – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Cited – Hampton and Sons v Garrard Smith (Estate Agents) CA 2002
(Year?) A joint venture can give rise to an obligation for good faith as between the parties. . .
Cited – Brostoff v Clarke Kenneth Leventhal 11-Mar-1996
No partnership between supposed partners where genuinely separate businesses were carried on. . .
Cited – Seager v Copydex (No. 2) CA 1969
. .
Cited – Island Holdings Ltd v Birchington Engineering Co Ltd 7-Jul-1981
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.188916

William N Watson and Co, Merchants, Calcutta, and Mandatory v Robert Shankland, Merchant, Greenock, and Others: HL 16 Mar 1873

W. chartered a ship to proceed to Calcutta and load, and then proceed to a port in the United Kingdom, the charter party containing this clause: ‘Sufficient cash for ship’s ordinary disbursements to be advanced the master against freight, subject to interest, insurance, and 2 1 2 per cent, commission.’ W. at Calcutta advanced to the master pounds 441, but did not insure the ship, and she was totally lost during the voyage.
Held (affirming judgment), That the charter party implied, that W. was to secure his advances by insurance, and as he failed to insure, he was not entitled to repayment by the owners of the sum he advanced.
[1873] UKHL 2 – Paterson – 204
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652911

Spurrier, Regina (on The Application of) v The Secretary of State for Transport: Admn 1 May 2019

Challenge to policy supporting establishment of third runway at Heathrow Airport
Hickinbottom LJ, Holgate J
[2019] EWHC 1070 (Admin)
Bailii
England and Wales
Citing:
See Also – Spurrier, Regina (on The Application of) v The Secretary of State for Transport Admn 2019
Live streaming of video and audio from a court room is prohibited. . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.637794

Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others: ECJ 27 Feb 1997

Europa 1 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Measures to detain and confiscate vessels suspected of having breached the prohibition of commercial traffic entering Yugoslav territorial waters – Scope – Vessel flying the flag of a non-member country, belonging to a non-Community company and sailing in international waters at the time of its boarding – Included
(Council Regulation No 990/93, Arts 1(1)(c), 9, 10 and 11)
2 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Prohibition of commercial traffic entering Yugoslav territorial waters and prohibition of activities designed to promote such entry – Scope
(Council Regulation No 990/93, Art. 1(1)(c) and (d))
3 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Breach – Penalties – National provision providing for confiscation of the cargo transported by one of the means of transport referred to in the second paragraph of Article 10 of the Regulation – Whether permissible – Conditions – Assessment by the national courts
(EC Treaty, Art. 5; Council Regulation No 990/93, Arts 1 and 10)
4 It follows from the wording of Articles 9 and 10 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia that the detention and confiscation measures for which they provide apply to all vessels suspected of having breached the prohibition of entry for commercial purposes into the territorial sea of the Federal Republic of Yugoslavia, with no distinction being drawn on the basis of the vessel’s flag or owner. Further, the application of those measures is not subject to the condition that the breach of the prohibitions set out in the Regulation should take place within Community territory.
The competent authorities of the Member State concerned must therefore, under Article 9 of the Regulation, detain all vessels suspected of having breached the sanctions imposed against the Federal Republic of Yugoslavia, even if they are flying the flag of a non-member country, belong to non-Community nationals or companies, or if the alleged breach of sanctions occurred outside Community territory. Likewise, national authorities may, under the second paragraph of Article 10 of the Regulation, confiscate those vessels and their cargoes once the infringement has been established.
Furthermore, Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, to which Articles 9 and 10 of the Regulation give effect within the Community, expressly requires all States to detain vessels suspected of violation that are found in their territory and provides that such vessels may, where appropriate, be forfeited to those States.
Since, under Article 11, Regulation No 990/93 applies within the whole territory of the Community, Articles 9 and 10 thereof are applicable once those vessels are within the territory of a Member State and thus under the territorial jurisdiction of that State, even if the alleged infringement occurred outside its territory.
5 Article 1(1)(c) and (d) of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia prohibits not only the actual entry of commercial traffic into the territorial sea of the Federal Republic of Yugoslavia but also conduct occurring in international waters which gives good reason to believe that the vessel concerned is on course for that territorial sea for the purposes of commercial traffic.
6 A domestic provision which, in the event of an ascertained breach of any of the prohibitions laid down in Article 1 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, prescribes confiscation of the cargo carried by one of the means of transport indicated in the second paragraph of Article 10 of Regulation No 990/93 is compatible with that Regulation, in particular with Article 10 thereof.
With the exception of the Italian and Finnish versions, all the language versions of the second paragraph of Article 10 of the Regulation, which correspond in this regard to the wording of Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, provide that, when the breach of the Regulation has been established, cargoes may be forfeited to the Member State concerned. The second paragraph of Article 10 of the Regulation cannot on any view be understood as limiting the Member States’ general power under the first paragraph of Article 10 to determine the penalties to be imposed where the provisions of the Regulation are infringed.
Moreover, even if it were to be assumed that the national provision in question introduces a system of strict criminal liability or fails to take into account the degree of involvement of the various traders concerned, it is for the national court to determine whether that penalty is dissuasive, effective and proportionate. In making that determination, the national court must take account, in particular, of the fact that the objective pursued by the Regulation, which is to bring to an end the state of war in the region concerned and the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, is one of fundamental general interest for the international community.
Where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. In this regard, a system of strict criminal liability penalizing breach of a regulation is not in itself incompatible with Community law.
C-177/95, [1997] EUECJ C-177/95, [1997] ECR I-1111
Bailii
European
Cited by:
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.161603

National Dock Labour Board v John Bland and Company Ltd and others: HL 25 May 1971

The parties disputed whether the timber companies with yards adjacent to the regulated ports were in those Ports so as to make their workers ‘dock workers’. Timber would be unloaded from ships and stored within the docks, before, when needed, it would be transported by dock workers to the yards of the timber merchants outside the docks for the companies involved.
Held: The appeal was dismissed. When taken from the rented area in the dock estates, it may be three months after storage there and delivered to John Bland and Co.’s yard and the yards of the other respondents whether in or outside the dock estates, it cannot properly be described still as cargo. The scheme covered the dock yards, but in this case, did not cover adjacent premises. Lord Cross of Chelsea said: ‘I cannot agree that the definition of ‘cargo’ in the 1946 Act obliges one to depart from the ordinary meaning of the word so far as concerns anything which has been carried in a ship. In ordinary parlance all things carried in a ship do not automatically cease to be cargo as soon as the ship berths and they are taken out of her. Depending on how they are dealt with they may continue to be fairly describable as ‘cargo’ for a period – in some cases possibly a considerable period – after they have left the ship. On the other hand, goods which are to be carried on a ship – prospective cargo – are not so naturally described as ‘cargo’ and that perhaps is why the legislature thought it necessary to make it clear by express words that ‘cargo’ in this Act was to include prospective cargo.’
Lord Donovan, Viscount Dilhorne, Lord Pearson, Lord Diplock, and, Lord Cross of Chelsea
[1971] UKHL 4, [1971] 2 Lloyd’s Rep 2, [1971] 2 All ER 779, [1972] AC 222, [1971] 2 WLR 1491, [1972] 14 KIR 137, [1971] ITR 152
Bailii
Docks and Harbours Act 1966 1(1), Dock Workers (Regulation of Employment) Act 1946, Dock Workers’ Employment Scheme 1967
England and Wales
Citing:
Cited – Isabella Dilworth (Widow) and Others v The Commissioner for Land and Income Tax and The Commissioner of Stamps PC 26-Nov-1898
(New Zealand) Lord Watson discussed the meaning of the word ‘include’ in a list in a statute: ‘The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.279732

SIB International SRL v Metallgesellschaft Corporation (“The Noel Bay”): CA 1989

The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought the difference in return as damages and demurrage for 72 hours which they would have earned together with the cost of getting the ship to the new port. They appealed refusal of the award of these additional sums.
Held: The appeal failed. Though they would have earned the demurrage had the contract continued, since it had not been, the proper basis for delay, giving credit for earnings in that period. The cost of getting the ship to the new port (the approach voyage) was part of the cost of the new contract for which the owner had to give credit. Staughton LJ accepted counsel’s submission that the value of the contract which the owners lost ‘must be assessed as at . . the date when repudiation was accepted’ and ‘It is established law that, at any rate if the option has not already been exercised at the date of the breach, the charterer must be assumed to have exercised that option in a way most favourable to himself.’
Staughton LJ
[1989] 1 Lloyd’s Rep 361
England and Wales
Citing:
Approved (Megaw LJ) – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
mihalisCA1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

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

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.252491

J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The “Miss Jay Jay”): CA 1987

The owner claimed for damage to the hull of the Jay Jay.
Held: Where there are two operative causes, one covered by the policy risks and one not, then provided that the second cause is not an excluded peril, the Assured can recover. There was only one loss and the total repair bill for the hull had to be paid by the insurer.
A loss may be said to be caused by perils of the sea even where the seastate is that which could reasonably have been expected. The words ‘proximate cause’ and ‘direct cause’ came to be used interchangeably, and there can be more than one proximate cause of loss.
Slade LJ
[1987] 1 Lloyd’s Rep 32
Marine Insurance Act 1906 55(1)
England and Wales
Citing:
Appeal from – J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd ‘The Miss Jay Jay’ 1985
Mustill J considered liability under a marine insurance where damage was suffered when the sea state was within what might reasonably be anticipated: ‘The cases make it quite plain that if the action of the wind or sea is the immediate cause of the . .

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

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.428479

Wilson v Rankin: CEC 28 Nov 1865

The plaintiff, the owner of a ship, effected a policy on freight from a British port in North America to Liverpool. The ship sailed with a cargo of timber between the 1st of September and the 1st of May. The master, without the knowledge or privity of his owner, stowed a portion of the cargo on deck, and sailed without any certificate from a clearing officer that the whole cargo was below deck, contrary to 16 and 17 Vict. c. 107, ss. 170, 171, and 172. On a loss by perils insured against:
Held: That although the master had general authority from his owner to stow the cargo, no authority could be implied to load it so as to violate the statute, neither was it an act of the master which the owner must be presumed to have assented to; that the fact of the ship having sailed without the certificate did not render her unseaworthy at the commencement ,of her voyage so as to prevent the policy attaching, and, consequently, that the plaintiff was not precluded from recovering against the underwriter.
[1865] EngR 755, (1865) 6 B and S 208, (1865) 122 ER 1173, (1865-1866) LR 1 QB 162, [1865] UKLawRpKQB 35
Commonlii, Commonlii
England and Wales

Updated: 07 August 2021; Ref: scu.281667

Van Der Lans v Koninklijke Luchtvaart Maatschappij NV: ECJ 17 Sep 2015

ECJ Judgment – Reference for a preliminary ruling – Air transport – Passengers’ rights in the event of delay or cancellation of a flight – Regulation (EC) No 261/2004 – Article 5(3) – Denied boarding and cancellation – Long flight delay – Compensation and assistance to passengers – Extraordinary circumstances
C-257/14, [2015] EUECJ C-257/14, ECLI:EU:C:2015:618
Bailii
Regulation (EC) No 261/2004
European

Updated: 07 August 2021; Ref: scu.552684

Roads v Central Trains Ltd: CA 5 Nov 2004

The court considered the meaning of the ‘duty to provide a reasonable alternative method’.
Held: The policy of the 1995 Act was to provide access to a service as close as it was reasonable possible to get to the standard offered to the public at large, and so far as reasonable practicable to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.
The defendant train company was found to have failed to comply with its reasonable adjustments duty in not making arrangements for a free taxi, so that wheelchair users – who could not use the footbridge nor reasonably navigate the half-mile detour along Station Lane – could access eastbound trains from Thetford, rather than the alternative relied on by the train company (a 60 minute-plus train journey west to Ely to change platforms there and travel back eastwards).
Buxton LJ said: ‘Steps might be unreasonable for a person to take if they unreasonably impact on third parties.’
Sedley, Buxton, Jacob LJJ
[2004] EWCA Civ 1541, (2005) 21 Const LJ 456, (2004) 104 Con LR 62
Bailii
Disability Discrimination Act 1995
England and Wales
Cited by:
Cited – Ross v Ryanair Ltd and Another CA 21-Dec-2004
The claimant said that the airline and airport had failed to provide proper access arrangements for him as a disabled person. No wheelchair had been provided to transfer him through the airport to the airplane.
Held: It was the duty of both . .
Cited – Firstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Cited – Rowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .
Cited – Firstgroup Plc v Paulley SC 18-Jan-2017
The claimant wheelchair user alleged discrimination by the bus company. The space reserved for wheelchair users on a bus had been wrongly occupied by a passenger who refused to vacate the space. The claimant said that the bus driver should have . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.220294

Septo Trading Inc v Tintrade Ltd: CA 18 May 2021

The issue in this appeal is whether a quality certificate issued by an independent inspector at the load port was intended to be conclusive evidence of the quality of a consignment of fuel oil supplied under an international sale contract. The email confirmation of the parties’ transaction (‘the Recap’) said that the certificate would be binding on the parties in the absence of fraud or manifest error, but it also provided for the BP 2007 General Terms and Conditions for FOB Sales (‘the BP Terms’) to apply ‘where not in conflict with the above’. Those terms say that the quality certificate will be conclusive and binding ‘for invoicing purposes’, but without prejudice to the buyer’s right to bring a quality claim.
Lord Justice Males
[2021] EWCA Civ 718
Bailii, Judiciary
England and Wales

Updated: 05 August 2021; Ref: scu.662480

Strive Shipping Corporation and Another v Hellenic Mutual War Risks Association (Bermuda) Ltd: ComC 25 Mar 2002

Grecia Express

[2002] EWHC 203 (Comm), [2002] Lloyds Rep IR 669, [2002] 2 All ER (Comm) 213, [2002] 2 Lloyd’s Rep 88
Bailii, Bailii
England and Wales
Cited by:
Cited – AXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2021; Ref: scu.171175

Global Process Sytems Inc and Another v Syarikat Takaful Malaysia Berhad: ComC 31 Mar 2009

The Cendor MOPU

The insurance company had refused a claim after the failure of an oil rig, saying that the loss of the rig legs during transit was the inevitable consequence of the voyage, and that since insurance was against risks, not certainties, they were under no liability for the loss of the legs.
Held: The insurer’s argument was rejected, concluding ‘that the failure of the legs as this rig was towed round the Cape was very probable, but it was not inevitable.’ and ‘a developed crack would not, on its own, have been sufficient to cause one of the legs to come off. That required in addition a ‘leg breaking’ or ‘final straw’ stress that finally fractured the weakened steel. As Mr Colman [one of the experts called at the trial] put it, ‘you’ve got to catch it just right, if you want to make it actually fail all the way round.” The insurers had proved that ‘the proximate cause of the loss was the fact that the legs were not capable of withstanding the normal incidents of the insured voyage from Galveston to Lumut, including the weather reasonably to be expected.’ Accordingly, the cause of the loss was inherent vice within the meaning of the policy and the insurers were not liable for the claim.
Blair J
[2009] EWHC 637 (Comm), [2009] 2 Lloyd’s Rep 72, [2009] 2 All ER (Comm) 795, [2009] Lloyd’s Rep IR 511
Bailii
Marine Insurance Act 1906 55(1)
England and Wales
Cited by:
Appeal from – Global Process Systems Inc and Another v Berhad CA 17-Dec-2009
An oil rig suffered major damage in transit in rough seas. The insurers repudiated liability saying that the damages was the result of a natural vice rather than perils at sea.
Held: The fact that the sea conditions were within the range of . .
At first instance – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 August 2021; Ref: scu.328003

Shagang Shipping Company Ltd v HNA Group Company Ltd: ComC 16 May 2016

It was said that a contract had been procured only by bribery. The defendant said that the so called confessions had been obtained by torture, and were inadmissible. No one with first-hand knowledge of the alleged bribery or torture gave evidence and the documentation available at the trial was substantially incomplete. It was agreed that, unless HNA succeeded in its defence that the charterparty was procured by bribery, Shagang was entitled to judgment on its claim under the guarantee.
Held: Torture could not be ruled out as a reason for the confessions and in any case the allegations of bribery had not been proved. The contract was enforceable and awarded damages to the claimant.
Knowles CBE J
[2016] EWHC 1103 (Comm)
Bailii
England and Wales
Cited by:
Appeal from – Shagang Shipping Company Ltd v HNA Group Company Ltd CA 23-Jul-2018
Appeal from finding that a contract award had not been obtained by bribery. The defendant said that the confessions of bribery had been extracted by torture and appealed a finding that the contract was enforceable.
Held: The appeal succeeded. . .
At First Instance – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.564510

Railtrack Plc v Smallwood: QBD 16 Feb 2001

It was not incorrect for an inspector to proceed to issue a prohibition notice to the rail operator, with regard to the use of a signal set, which had been deemed unsafe, even where the operator had given formal undertakings with regard to its’ use. The overwhelming need was to re-assure the public as to their safety, and the additional imposition of the notice operated as a belt and braces method of ensuring such safety. The section should be read purposively. The inspector would have been free to issue the notice before the accident. The accident had merely confirmed the need for a notice. ‘Activities’ might include suspended activities.
Sullivan J said: ‘In the light of those factors, and of the authorities cited in De Smith Woolf and Jowell’s Judicial Review of Administrative Law (1999), pp 251-252, paragraph 6-010, I expressed the provisional view during the course of argument that a Tribunal hearing an appeal under section 24 of the 1974 Act was not limited to reviewing the genuineness and/or the reasonableness of the Inspector’s opinions. It was required to form its own view, paying due regard to the Inspector’s expertise, see in particular Sagnata Investments Ltd v Norwich Corporation [1971} 2QB 614.’
Sullivan J
Times 16-Feb-2001, Gazette 01-Mar-2001, [2001] ICR 714
Health and Safety at Work Act 1974 22
England and Wales
Cited by:
Cited – Chilcott v Thermal Transfer Ltd Admn 17-Jul-2009
The company had successfully appealed against a prohibition notice relating to its arrangements for working at height. By the time of the prohibition notice, it had implemented a plan satisfactory to the inspector.
Held: The tribunal had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.85650

Panamanian Oriental Steamship Corporation v Wright (The Anita): CA 1971

The burden is on Underwriters to bring themselves within an exclusion clause they seek to rely on.
Lord Denning distinguished between what might be described as justified or ‘connected’ political interference on the one hand and unjustified or unconnected interference on the other: ‘Yet again, if there were evidence of political interference with the course of justice – so that the court acted on the instructions of the politicians and not on its own judgment – it might be different. I can conceive of some instructions which would not render the confiscation invalid. For instance, if the government were to say to the court: ‘Smuggling is very prevalent and serious. The penalties should be more severe’: there would be nothing sinister in it. But, if there was direct intervention by politicians commanding the court to confiscate the vessel, without any foundation for it, then, of course, the loss would not be covered: because the confiscation would not be by reason of customs regulations, but by reason of the political interference.’
Lord Denning MR
[1971] 1 Loyd’s Rep 487, [1971] 1 WLR 882
England and Wales
Cited by:
Cited – Sunport Shipping Limited, Prometheus Maritime Corporation, Celestial Maritime Corporation, Surzur Overseas Limited v Tryg-Baltica International (UK) Ltd (Formerly Know As Colonia Baltica Insurance Ltd) and others CA 24-Jan-2003
(The ‘Kleovoulos of Rhodes’) A large quantity of cocaine was discovered by divers behind a grille in a sea chest at the vessel’s discharge port, Aliveri – having been placed there by unknown third persons at the load port in Colombia, South America. . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.181624

Cory v Burr: HL 30 Apr 1883

In a time policy of marine insurance on ship the ordinary perils insured against (including ‘ barratry of the master ‘) were enumerated, and the ship was warranted ‘free from capture and seizure and the consequences of any attempts thereat.’ In consequence of the barratrous act of the master in smuggling, the ship was seized by Spanish revenue officers, and proceedings were taken to procure her condemnation and confiscation. In an action on the policy to recover expenses incurred by the owner in obtaining her release, it was argued that the master’s barratrous smuggling was the cause of the vessel’s loss, rather than the capture or seizure or its consequences from which the vessel was warranted free by the FC and S clause.
Held: affirming the decision of the Court of Appeal, that the loss must be imputed to ‘ capture and seizure ‘ and not to the barratry of the master, and that the underwriter was not liable. There is no question of dismissing a vessel’s capture and detainment in such circumstances as a mere incident of, or sequela to, an underlying cause such as barratry.
The Earl of Selborne viewed such a construction of the policy and the warranty taken together as ‘leading to consequences altogether destructive of the whole operation of the warranty’
Lord Blackburn said that it was true that the insurance had not been warranted free from barratry, but went on: ‘the barratry would itself occasion no loss at all to the parties insured. If it had not been that the Spanish revenue officers, doing their duty (they were quite right in that respect), had come and seized the ship, the barratry of the captain, in coasting along there, hovering as we should call it along the coast, in order that the small smuggling vessel might come and take the tobacco, would have done the assured no harm at all. The underwriters do undertake to indemnify against barratry; they do undertake to indemnify against any loss which is directly sustained in consequence of the barratry; and in this case, as I said before, I think the seizure was as direct a consequence of the barratry as could well be. But still, . . it was the seizure which brought the loss into existence – it was a case of seizure. Then why should it not be protected by this warranty?’
Lord Bramwell noted the argument that the loss was not from the seizure but in truth from the barratry, and the ‘ingeniously’ made suggestion that the seizure was ‘an intermediate step’, and responded: ‘But it was the ultimate and final step which occasioned the loss’
Lord Fitzgerald, after observing that barratry ‘may be either harmless or effect but a small loss’ put the question: ‘By what was the loss occasioned? I apprehend that there can be but one answer to this question, namely, that the loss arose from the seizure. There was no loss occasioned by the act of barratry. The barratry created a liability to forfeiture or confiscation, but might in itself be quite harmless; but the seizure, which was the effective act towards confiscation, and the direct and immediate cause of the loss, was not because the act of the master was an act of barratry but that it was a violation of the revenue laws of Spain.’
Earl of Selborne LC, Lord Blackburn, Lord Bramwell, Lord Fitzgerald
1882-1883) 8 App Cas 393, [1883] UKLawRpAC 22
Commonlii
England and Wales
Cited by:
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.666172

Nishina Trading Co Ltd v Chiyoda Fire and Marine Insurance Co Ltd (The Mandarin Star): CA 1968

The ship owners had not been paid two months of charter hire due to them, so the master took the cargo. The cargo did not belong to the defaulting charterer, however, but rather to an innocent third party. The insurance clause provided that ‘it is hereby agreed that this policy covers the risk of theft’.
Held: On the facts, the act of the ship master acting on the request of his masters, was not theft. the ship owners did not sell the cargo but raised money on it by way of mortgage. They may have had an honest but mistaken belief that they had some sort of lien on the cargo for their charter hire. If they honestly thought that they had a right to do what they did, no ordinary person would call it ‘theft’.
Lord Denning MR said: ‘The word ‘theft’ is not used here in the strict sense of the criminal law. It does not bring in all the eccentricities of the law of larceny. It means only what an ordinary commercial man would consider to be theft: and before finding theft, the court should be satisfied that it is an appropriate description of what took place. The court need not be satisfied beyond reasonable doubt (as in the criminal law) but it should find on balance that there is sufficient to warrant the serious imputation of ‘theft’.’
Edmund Davies LJ held that the ‘persons acting maliciously’ peril was inapplicable on the facts.
Phillimore LJ observed that the clause was ‘obviously intended to deal with damage effected in the course of some civil disturbance’.
Lord Denning MR, Edmund Davies LJ, Phillimore LJ
[1968] 1 WLR 1325, [1969] 2 QB 449, [1969] 2 All ER 776
England and Wales
Cited by:
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.666166

Oceanic Freighters Corporation v MV Libyaville Reederei und Schiffahrts GmbH (The Libyaville): QBD 1975

In charterparty disputes guidance may sometimes be found in landlord and tenant law. Using such a principle in this case, Mocatta J held that the acceptance of a smaller sum than the hire due, albeit under strong protest, precluded the shipowner from withdrawing the vessel for short payment.
Mocatta J said: ‘the courts should do their best, consistently with legal principles, to give effect to this clause, which . . shows a praiseworthy effort to reduce the technicalities, inappropriate to a commercial relationship, which so often arise in connection with the right to withdraw a ship under a time charter.’
Mocatta J
[1975] 1 Lloyds Rep 537
England and Wales
Cited by:
Cited – Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa ComC 15-Mar-2012
The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.459945

North Star Shipping Ltd and others v Sphere Drake Insurance Plc and others: ComC 22 Apr 2005

[2005] EWHC 665 (Comm), [2005] 2 Lloyd’s Rep 76, [2005] 2 CLC 238
Bailii
England and Wales
Citing:
See Also – North Star Shipping Ltd. and others v Sphere Drake Insurance Plc and others ComC 27-Oct-2004
. .

Cited by:
Appeal from – North Star Shipping Ltd and others v Sphere Drake Insurance Plc and others CA 7-Apr-2006
A claim was made under a marine insurance policy for damage caused to a vessel by an explosion. Underwriters alleged that they were entitled to avoid the policies for (inter alia) non-disclosure of the existence of criminal proceedings in Greece . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.224563

Royal Greek Government v Minister of Transport (The Ann Stathatos): 1949

The ship had been chartered, but the crew refused to sail without an escort, in war conditions. The charterer sought to be excused liability under a clause making allowance for ‘insufficiency of crew’.
Held: The presumption against surplusage is of little value in the interpretation of commercial contracts. Devlin J said: ‘A charter-party is built up of clauses generally agreed in the trade; and when they are added to or varied from time to time, as not infrequently they are, I doubt that the commercial draftsmen pay much attention to overlapping or that they are afraid of repetition. Secondly, the argument based on superfluity, which, as has often been said, is of little value in the construction of commercial documents, is hardly applicable at all to Clause 13. Whatever construction is put upon Clause 9, the second part of Clause 13 is, from a lawyer’s point of view, superfluous. All that it is saying legally is that the charterer is responsible for breach of the charter-party or for negligence’ and ‘if [the owner] is to surrender his freedom of choice and put his master under the orders of the charterer, there is nothing unreasonable in his stipulating for a complete indemnity in return.’
The existence of an exceptions clause is itself likely to affect what falls to be regarded as dominant, proximate or relevant; and that this is because ‘the whole of what one might call the area naturally appurtenant to the excepted event must be granted to it’.
Devlin J
[1949] 83 Ll Rep 228
England and Wales
Cited by:
Appeal from – Royal Greek Government v Minister of Transport CA 2-Jan-1949
The charterers had ordered the vessel to sail but her crew refused to do so, except in convoy, because of the war. A dispute arose as to whether, the charterers’ order to sail having been disobeyed, the vessel was off-hire.
Held: The appeal . .
Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
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 . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.462284

Atlasnavios-Navegacao, LDA v Navigators Insurance Company Ltd and Others: ComC 8 Dec 2014

The claimant’s vessel and its crew had been detained after illegal drugs were found to be attached to its hull in port in Venezuela by ship crew members. The ship owners asserted effective total loss.
Held: The owners were entitled to recover from insurers. The cause of the vessel’s loss was the malicious act of unknown third parties in attaching the drugs to the hull, and the exclusion of detainment, etc ‘by reason of infringement of any customs . . regulations’ in clause 4.1.5 was to be read as subject to an implied limitation where the only reason for such infringement was such an act.
Flaux J
[2014] EWHC 4133 (Comm), [2015] All ER (Comm) 439, [2015] CN 59
Bailii
England and Wales
Citing:
Preliminary Issues – Atlasnavios-Navegacao, Lda v Navigators Insurance Company Ltd and Others ComC 29-Mar-2012
Trial of preliminary issues in an action in which the Claimant claims under its war risks insurance for the constructive total loss of the vessel ‘B Atlantic’ (‘the Vessel’). Between 7 and 12 August 2007 the Vessel loaded a cargo of coal at . .

Cited by:
At ComC – Atlasnavios-Navegacao, Lda v Navigators Insurance Company Ltd and Others CA 1-Aug-2016
(The B Atlantic) The court was asked whether Flaux J was right to find that the owners of a ship were entitled to be indemnified by the insurers in respect of the constructive total loss of the vessel under war insurance after detention ‘by reason . .
At ComC – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.539960