Category: Transport

Allen v Coltart: 1883

‘Where goods are deliverable to the holder of a bill of lading on certain conditions being complied with, the act of demanding delivery is evidence of an offer on his part to comply with those conditions, and the delivery accordingly by the master is evidence of his acceptance of that offer.’

Judges:

Cave J

Citations:

(1883) 11 QBD 782

Jurisdiction:

England and Wales

Cited by:

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

Transport

Updated: 24 November 2022; Ref: scu.194558

The Laconian Confidence: 1997

Charterers appealed against the decision of the arbitrator on the meaning of the phrase ‘any other cause’. The performance of the contract had been interrupted by the intervention of the authorities in Chittagong.
Held: The appeal failed. The arbitrators were correct to decide that the vessel was not off-hire. Rix J said: ‘ In my judgment it is well established that those words, in the absence of ‘whatsoever’, should be construed either ejusdem generis or at any rate in some limited way reflecting the general context of the charter and clause . . A consideration of the named causes indicates that they all relate to the physical condition or efficiency of either vessel (including its crew) or, in one instance, cargo. There is, moreover, the general context . . that it is for the owners to provide an efficient ship and crew. In such circumstances it is to my mind natural to conclude that the unamended words ‘any other cause’ do not cover an entirely extraneous cause, like the boom in Court Line, or the interference of authorities unjustified by the condition (or reasonably suspected condition) of ship or cargo. Prima facie it does not seem to me that it can be intended by a standard off-hire clause that an owner takes the risk of delay due to the interference of authorities, at any rate where that interference is something beyond the natural or reasonably foreseeable consequence of some named cause. Where, however, the clause is amended to include the word ‘whatsoever’, I do not see why the interference of authorities which prevents the vessel performing its intended service should not be regarded as falling within the clause, and I would be inclined to say that that remains so whether or not that interference can be related to some underlying cause internal to the ship, or is merely capricious. That last thought may be controversial, but it seems to me that if an owner wishes to limit the scope of causes of off-hire under a clause which is deliberately amended to include the word ‘whatsoever’, then he should be cautious to do so.’
In the absence of the word ‘whatsoever’ in the clause, the unexpected and unforeseeable interference by the authorities at the conclusion of a normal discharge was: ‘a totally extraneous cause . . unconnected with, because too remote from, the merely background circumstance of the cargo residues of 15.75 tonnes. There was no accident to cargo, and there was nothing about the vessel herself, her condition or efficiency, nor even anything about the cargo, which led naturally or in the normal cause of events to any delay. If the authorities had not prevented the vessel from working, she would have been perfectly capable of discharging the residues or of sailing and dumping them without any abnormal delay.’

Judges:

Rix J

Citations:

[1997] 1 Lloyd’s Rep 139

Jurisdiction:

England and Wales

Cited by:

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

Transport, Contract

Updated: 23 November 2022; Ref: scu.416719

The Johnny: 1977

Where a charterer had overrun his time, and faced a claim for damages, under the provisions of the amended Baltime form, the market rate should be assessed by reference to the market rate for 11-13 month charters (the period of the charterparty) as at the date of the commencement of the overrun period and then applied to that period alone. Lord Denning said that in the case of an illegitimate last voyage, the measure of recovery, whether as damages or upon a quantum meruit, was as follows: ‘In either case the amount would be assessed at the market rate then ruling for a time charter trip for a voyage at that time. That is for a time charter for the period of time occupied by such a voyage based on spot rates for the voyage charter but adjusted to a time charter basis. That would be obviously fair and just. The charterer by sending her on that last illegitimate voyage would have received the high market rate then prevailing and should pay damages based on that rate for that voyage’.

Citations:

[1977] 2 LLR 1

Jurisdiction:

England and Wales

Cited by:

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

Transport, Damages

Updated: 23 November 2022; Ref: scu.246744

Fletcher and Campbell v City Marine Finance Ltd: 1968

A power of sale under a ship mortgage can only be exercised when a sum is due.

Citations:

[1968] 2 Lloyds Rep 520

Jurisdiction:

England and Wales

Cited by:

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

Transport

Updated: 23 November 2022; Ref: scu.242405

Empresa Cubana de Fletes v Lagonisi Shipping Co Ltd (The Georgios C): 1971

Citations:

[1971] 1 Ll R 7

Jurisdiction:

England and Wales

Cited by:

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

Litigation Practice, Transport

Updated: 23 November 2022; Ref: scu.225444

The Arawa: 1977

Judges:

Brandon J

Citations:

[1977] 2 Lloyd’s Rep 416

Statutes:

Hague-Visby Rules III r2

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Transport, Contract

Updated: 23 November 2022; Ref: scu.219879

Johnson v Royal Mail Steam Packet Co: 1867

‘Without entering into the question of mortgages of land further than to say we have given it out consideration – the case of a mortgagee and mortgagor of a ship appears to be one of a quite different complexion, because the mortgagee so long as he does not interfere and claim possession, may fairly be taken to have allowed the mortgagor to enter into all engagements for the employment of the ship of the sort usually entered into by a person who has the apparent control and ownership of a vessel.’

Judges:

Willes J

Citations:

(1867) LR 3 CP 38

Jurisdiction:

England and Wales

Cited by:

Cited – Den Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 23 November 2022; Ref: scu.187671

Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Company Jordan Inc and Another: CA 13 Feb 2003

The question was whether a carrier is liable to cargo owners when the latter, or their stevedores, perform their duties improperly or carelessly; whether an agreement which transfers responsibility for these operations from the shipowners to shippers, charterers or consignees, is invalidated by article III, r. 8 of the Rules. The charterparty purported to transfer responsibility for loading, stowage and discharge from the shipowners to shippers, charterers and consignees. It was questioned whether the assignment was valid under the Rules

Citations:

[2003] EWCA Civ 144, [2003] 2 Lloyd’s Rep 87, [2003] 1 All ER (Comm) 747

Links:

Bailii

Statutes:

Hague-Visby Rules A2

Jurisdiction:

England and Wales

Cited by:

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

Transport, Contract

Updated: 23 November 2022; Ref: scu.181128

The Glasgow and South-Western Railway Co v Caledonian Railway Co: HL 27 Mar 1874

The Caledonian Railway Company had in 1849 leased the Barrhead Railway for 999 years at a rent of pounds 16,500. In 1851, under the Caledonian Railway Arrangements Act, it was agreed that this rent should be reduced to pounds 11,250 per annum, and that the Caledonian Company should issue to the shareholders of the Barrhead Company pounds 82,500 of the ordinary stock of their Company, which was then selling in the market at from 27 to 30 per cent., as the price of the redemption of the pounds 5250 of yearly rent. In 1869 an Act was passed admitting the Glasgow and South-Western Company to share equally with the Caledonian Company in the benefits of the Barrhead lease, upon the condition that the South-Western Company should pay one-half the year’s rent, and should repay to the Caledonian Company ‘a sum equal to one equal moiety of all sums expended by the Caledonian Company on capital account in connection with the Barrhead Railway.’
Held that the pounds 82,500 stock issued by the Caledonian to the Barrhead Company in redemption of rent was to be considered a payment on capital account, in terms of this section, and that the Glasgow and South-Western were bound to relieve the Caledonian of one-half, taken at its nominal value.

Judges:

Lord Chancellor Cairns, Lords Chelmsford, Hatherley, and Selborne

Citations:

[1874] UKHL 484, 11 SLR 484

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 22 November 2022; Ref: scu.650211

East West Corporation v DKBS 1912 and Another: ComC 27 Feb 2002

‘The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word. It is to compensate the claimant who has made an offer that should have been accepted for the risk of continuing with the action and to bring home to the defendant the risks being run by not accepting it.’

Judges:

Thomas J

Citations:

[2002] EWHC 253 (Comm), [2003] 1 Lloyd’s Rep 239

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – East West Corporation v DKBS 1912 and Another ComC 7-Feb-2002
. .

Cited by:

See also – East West Corporation v DKBS 1912 and Another ComC 7-Feb-2002
. .
Appeal from – P and O Nedlloyd B v Dampskibsselskabet Af, 1912, Aktieselskab, Aktieselskabet Dampskibsselskabet Svendborg v Utaniko Limited, East West Corporation CA 12-Feb-2003
The claimants shipped goods to Chile through the defendant shipping line. The goods were lost. The shippers rights of suit under the contract of carriage had been transferred to a third party.
Held: The shippers as the bank’s principals . .
Cited – DSN v Blackpool Football Club Ltd QBD 20-Mar-2020
Indemnity costs award on ADR refusal
The claimant succeeded in his claim for damages for historic sexual abuse, and recovered more than his rejected offer for settlement. He now claimed his costs on an indemnity basis.
Held: ‘It is correct that an order for indemnity costs means . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages, Costs

Updated: 20 November 2022; Ref: scu.178914

Caledonian Railway Co v Wemyss Bay Railway Co: HL 24 Apr 1874

Circumstances in which held (aff. judgment) that a dispute between two Railway Companies, whether the working out of an agreement into which they had entered, as to the disposal of nett revenue, could be reconciled with the rights of mortgagees was a difference as to the mode of carrying out the agreement, and so fell under a clause of the incorporating Act of Parliament, referring all such cases to arbitration.

Judges:

Lord Chancellor Cairns, Lords Chelmsford, Hatherley, and Selborne

Citations:

[1874] UKHL 494, 11 SLR 494

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 20 November 2022; Ref: scu.650212

The Lord Advocate v The Clyde Steam Navigation Co: HL 11 Mar 1875

Certain alterations made on a steam vessel necessitated a new registration owing to increase of tonnage thereby. The ship carried an awning deck above the main or tonnage deck, and separated from the forecastle by two gaps completely extending across the vessel, these gaps being only closed by moveable hatches, not fastened down and not watertight. Held that the space between the awning deck and the main-deck did not fall to be reckoned in computing the increase of tonage, as it was not (1) a ‘permanent closed-in space’ in terms of sub-section 4 of the Act; and (2) that it was not a ‘third deck commonly called a spar-deck’ within the meaning of sub-section 5.

Judges:

Lord Chancellor Cairns, Lords Hatherley, and O’Hagan

Citations:

[1875] UKHL 407, 12 SLR 407

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 20 November 2022; Ref: scu.650103

Glasgow and South-Western Railway (Ayr Harbour Transfer): HL 4 Oct 1918

The Glasgow and South-Western Railway Company promoted this Order for the purpose of acquiring the harbour of Ayr, taking power also to spend pounds 50,000 upon it. The harbour had always been in financial troubles, and had received help at various times from the Railway Company. Money was again required partly to remedy defects, partly to improve and equip the harbour for the handling of the traffic. The Harbour Trust had not seen its way to raise the required funds, and had approached the Railway Company, with whom terms for a transfer had been arranged. Opposition to the proposal had become restricted to that on the part of (1) the Lanarkshire and Ayrshire Railway Company and (2) the Royal Burgh of Irvine.
Of the harbours on the Ayrshire coast the most northerly, Ardrossan, was owned by a public company, served by the lines of the Glasgow and South-Western and the Lanarkshire and Ayrshire Railway Companies; Irvine was a burgh harbour managed by a Harbour Trust, and served by the lines of the Glasgow and South-Western Railway, the other railway company’s line not coming beyond the burgh itself; Troon had been a private harbour, and had recently been acquired by the Glasgow and South-Western Railway Company, whose lines served it; Ayr was the fourth, and was served by the Glasgow and South-Western Railway Company’s lines, over which, however, the Caledonian Railway Company had certain running powers.
The Lanarkshire and Ayrshire Railway Company was an owning company, its line being worked and managed in perpetuity by the Caledonian Railway Company. The nearest point to Ayr on its line was about 11 miles distant. It objected to the present proposal as conferring virtually a monopoly of the harbour accommodation of the Ayrshire coast, excepting Ardrossan, on the Glasgow and South-Western Railway Company, and as being detrimental to Ardrossan, the only harbour to which it had access. Ardrossan Harbour Company had settled with the promoters on the basis of equality of rates.
Objection was taken to the locus of the Lanarkshire and Ayrshire Railway Company, but this the Commissioners granted. On the evidence this opposition came down to a demand for running powers into Ayr harbour over the Glasgow and South Western Company’s lines, with which a connection would require to have been made. This the Commissioners refused.

Citations:

[1918] UKHL 664, 56 SLR 664

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 20 November 2022; Ref: scu.631486

British American Tobacco Switzerland SA and Others v Exel Europe Ltd: CA 30 Oct 2013

Large quantities of tobacco had been stolen from containers whilst in transit across Euurope. The consignors, now the appellants sought recovery from the sub-contractors who had custody of them at the time.
Held: The consignors appeal succeeded.

Judges:

MacFarlane LJ, Sir Bernard Rix, Sir Timothy Lloyd

Citations:

[2013] EWCA Civ 1319, [2014] RTR 12, [2015] 1 All ER (Comm) 52, [2014] 1 Lloyd’s Rep 503, [2013] 2 CLC 683, [2014] 1 WLR 4526, [2013] WLR(D) 417

Links:

Bailii, WLRD

Statutes:

Convention on the Contract for the International Carriage of Goods by Road, Carriage of Goods by Road Act 1965

Jurisdiction:

England and Wales

Citing:

Appeal from – British American Tobacco Switzerland Sa and Others v Exel Europe Ltd and Others ComC 23-Mar-2012
Defendants (companies registered in Holland) denied that the UK court had jurisdiction to try the claim against them.
Held: The consignors could not succeed, and the court set aside the proceedings against the sub-contractors. The ‘defendant’ . .

Cited by:

Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Appeal from – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 20 November 2022; Ref: scu.517232

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 reserve authority he must justify his action. Section 15 was not limited to cases where the owners of a vessel under compulsory pilotage were facing claims by third parties but extended to a claim by the owners themselves.
Lord Normand discussed the Latin maxim: frustra petis quod mox es restiturus (‘it is no good trying to get something which immediately afterwards you are going to have to hand back’), saying ‘But if the shipowner might have recovered as damages in an action in negligence the sum paid to the harbour authority under section 74, the decision would be saved frustra petis quod mox es restiturus.’

Judges:

Lord Radcliffe, Lord Normand

Citations:

[1951] AC 112

Statutes:

Pilotage Act 1913 15

Jurisdiction:

England and Wales

Citing:

Appeal from – Workington Harbour and Dock Board v Towerfield (Owners) CA 1949
. .

Cited by:

Cited – 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 . .
Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.

Transport, Equity

Updated: 19 November 2022; Ref: scu.181790

Bouygues Offshore SA v Caspian Shipping Company, and others: CA 24 Jun 1998

A court need not first decide liability before applying grant of limitation of liability decree under the Act. That different Conventions were applied by UK and South Africa did not stop the establishment of a limitation fund for payment of damages allowing a ship release.

Citations:

Times 07-Aug-1998, [1998] EWCA Civ 1077, [1998] 2 Lloyd’s Rep 46, [1998] 2 Lloyd’s Rep 461

Statutes:

Merchant Shipping Act 1995

Jurisdiction:

England and Wales

Citing:

Appeal from – Georgian Maritime Corporation v Sealand Industries (Bermuda) Ltd ComC 18-Apr-1997
ComC Time charterparty – proper construction – cancellation clause – cancellation – non-delivery . .
Appeal from – Bouygues Offshore S.A. v Caspian Shipping Company and Others; Ultisol Transport Contractors Ltd [v[ Bouygues Offshore S.A. (No. 5) ComC 23-May-1997
Conflict of laws – English exclusive jurisdiction clause in Towcon contract – Proceedings in South Africa in breach of clause – whether anti-suit injunction previously granted by Clarke J (see [1996] 2 LI Rep 140) should be discharged . .

Cited by:

Cited – Donohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 19 November 2022; Ref: scu.144556

Shearer v Cooper: HL 26 Feb 1875

When a firm, after executing certain repairs upon a ship on their own private slip, launched her into the public dock,- held ( reversing decision of the Court of Session) that they had not thereby lost their lien on the ship for the cost of the repairs, but had a right to retain he until these expenses were paid.

Judges:

Lord Chancellor Cairns, Lords Chelmsford, Hatherley, and Selborne

Citations:

[1875] UKHL 406, 12 SLR 406

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 19 November 2022; Ref: scu.650100

Fogg and Another, Regina (on the Application of) v Secretary of State for Defence: CA 5 Oct 2006

The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even though in a convoy.
Held: The Secretary of State argued for a narrow meaning of the phrase ‘in service’. Under the 1866 Act a officer on board a convoy ship was subject to military discipline. The British Steamship case was directly appicable. The judge’s order was correct; the Secretary of State’s interpretation of the 1986 Act was too narrow.

Judges:

Sir Anthony Clarke, Rix LJ, Longmore LJ

Citations:

[2006] EWCA Civ 1270, Times 10-Oct-2006, [2007] QB 96, [2006] 3 WLR 931

Links:

Bailii

Statutes:

Military Remains Act 1986, Naval Discipline Act 1866 31

Jurisdiction:

England and Wales

Citing:

Applied – Britain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . .
Approved – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .
Appeal from – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Transport

Updated: 19 November 2022; Ref: scu.245188

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd: HL 26 Nov 1981

Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable to exclusion and indemnity clauses. The words of exclusion must be clear and unambiguous, and should, failing this, be construed strictly against the proponent (contra preferentem) and is seeking to rely on them.
Lord Fraser said: ‘these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when . . the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for . .’
Lord Wilberforce said that limitation clauses are not viewed with the same hostility as are exclusion clauses.

Judges:

Lord Fraser, Lord Wilberforce

Citations:

[1983] 1 WLR 964, [1981] UKHL 12, [1983] 1 All ER 101, 1982 SLT 377

Links:

Bailii

Statutes:

Hague Rules

Jurisdiction:

England and Wales

Citing:

Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

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 . .
Applied – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd HL 19-Oct-1995
The managing contractors sought damages from a sub-contractor. The contract was on a printed form and in letters. A letter limited time related damages to pounds 100,000. The main contractors sought a much larger sum.
Held: A clause seeking to . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Scotland

Updated: 18 November 2022; Ref: scu.181088

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 recompense if the loss could be said to be ‘damage caused by contamination resulting from the discharge or escape’ of oil.
Held: The liability imposed by the Act is limited to the area surrounding the accident. The claim for damage was too remote.

Judges:

Lord Justice Kennedy, Lord Justice Chadwick, Lord Justice Mance

Citations:

Times 27-Feb-2003, [2003] EWCA Civ 65, Gazette 03-Apr-2003, [2003] 1 Lloyd’s Rep 327, [2003] 1 CLC 325, [2003] 2 All ER (Comm) 1

Links:

Bailii

Statutes:

Merchant Shipping Act 1995 Sch4 153, Hague Rules

Jurisdiction:

England and Wales

Citing:

Appeal from – Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’) and Another v The International Oil Pollution Compensation Fund 1971 and others AdCt 29-May-2002
The claimants sought recovery of their loss profits under an insurance policy, after the loss of the Sea Empress.
Held: Their claim for loss of profits did not constitute ‘damage caused . . by contamination resulting from the discharge or . .
Cited – 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. . .

Cited by:

Appealed to – Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’) and Another v The International Oil Pollution Compensation Fund 1971 and others AdCt 29-May-2002
The claimants sought recovery of their loss profits under an insurance policy, after the loss of the Sea Empress.
Held: Their claim for loss of profits did not constitute ‘damage caused . . by contamination resulting from the discharge or . .
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 . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 18 November 2022; Ref: scu.179012

European Commission v French Republic: ECJ 18 Apr 2013

ECJ Failure of a Member State to fulfil obligations – Transport – Development of the Community’s railways – Directive 91/440/EEC – Article 6(3) and Annex II – Directive 2001/14/EC – Article 14(2) – Lack of legal independence of the railway infrastructure manager – Article 11 – Absence of a performance scheme – Incomplete transposition

Citations:

C-625/10, [2013] EUECJ C-625/10

Links:

Bailii

Statutes:

Directive 91/440/EEC, Directive 2001/14/EC

European, Transport

Updated: 17 November 2022; Ref: scu.472720

Olympic Airlines Sa v ACG Acquisition XX Llc: CA 17 Apr 2013

The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later proved faulty.
Held: The appeal failed, though the result was upheld on different grounds. Aircraft necessarily or accepted and delivered without the full condition being known: ‘the parties know that neither can be absolutely certain of an aircraft’s condition at the point at which the lessee is called upon to accept delivery and the on-going risk. That commercial parties should in such a situation strive to achieve finality in relation to the allocation of risk and responsibility is a commonplace.’ Given the extensive access allowed before acceptance to survey the aircraft, the parties must have intended the condition certificate to be final.

Judges:

Rix, Tomlinson, Kitchin LJJ

Citations:

[2013] EWCA Civ 369

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Appeal from – ACG Acquisition Xx Llc v Olympic Airlines ComC 30-Apr-2012
The parties had contracted for the delivery and lease of a passenger airplane. It was delivered with defects, and the airline went into liquidation. The court was asked whether a claim for damages for defective delivery survives execution by the . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
See Also – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .

Cited by:

See Also – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Insolvency

Updated: 17 November 2022; Ref: scu.472636

Regina v Inhabitants of Greenhow: 1876

A roadway had slipped down the hillside. At one point it was some 25ft below its former position. Though the material underneath was poor and unstable, it was repairable at a substantial cost to the inhabitants of the local borough.
Held: The road had to be repaired. It had not been destroyed.

Citations:

(1876) 1 QBD 703, (1876) 45 LJMC 141, (1876) LT 363, (1876) 41 JP 7 DC

Jurisdiction:

England and Wales

Cited by:

Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Lists of cited by and citing cases may be incomplete.

Land, Transport

Updated: 17 November 2022; Ref: scu.244699

SK Shipping (S) Pte Ltd v Petroexport Ltd: ComC 24 Nov 2009

The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an intention to repudiate the contract. The claimant was entitled to accept that renunciation as a repudiatory breach and terminate the charterparty.

Judges:

Flaux J

Citations:

[2009] EWHC 2974 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hochster v De La Tour QBD 25-Jun-1853
The plaintiff said that the defendant had given him a contract to travel with him and to act as the defendant’s courier, but then changed his mind. The plaintiff obtained another engagement to start before the proposed term. The defendant said there . .
Cited – Forslind v Bechely-Crundall HL 1922
A ‘shilly-shallying attitude in regard to the contract’ (Lord Dunedin) may discharge a party to a contract otherwise in breach. Procrastination may be so gross and protracted as to amount to repudiation.
Lord Shaw of Dunfermline said: ‘If, in . .
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Chilean Nitrate Sales Corporation v Pansuiza Compania de Navegacion SA and Marine Transportation Co Ltd (‘The Hermosa’) CA 1982
Donaldson LJ summarised the law as regards renunciation of a contract, saying: ‘The learned Judge formulated the test to be applied as being ‘whether MTC and the owners acted in such a way as to lead a reasonable person to conclude that they did not . .
Cited – Universal Cargo Carriers Corporation v Citati 1957
The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long . .
Cited – Carswell v Collard HL 1893
Lord Herschell discussed the test for whether a contract had been renounced, and said: ‘Of course the question was not what actually influenced [the innocent party], but what effect the conduct of the [other party] would be reasonably calculated to . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Cited – British and Beningtons Ltd v North Western Cachar Tea Co Ltd HL 1923
The House looked at the effect of rescission of a contract: ‘It was, however, argued before your Lordships that . . the old contracts were discharged because a varied contract is not the old contract, and as you cannot have a new and varied contract . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 14 November 2022; Ref: scu.381300

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 strategy as published did not constrain in any way the decision making processes which might follow: ‘The very concept of a framework, rules, criteria or policy, which guided the outcome of an application for development consent, as a plan which required Strategic Impact Assessment even before development project Environmental Impact Assessment, presupposed that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here.’

Judges:

Ouseley J

Citations:

[2013] EWHC 481 (Admin), [2013] WLR(D) 122, [2013] PTSR D25

Links:

Bailii

Statutes:

Strategic Environmental Assessment Directive (Parliament and Council Directive 2001/42/EC

Jurisdiction:

England and Wales

Cited by:

At Admn – 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 . .
At First Instance – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Lists of cited by and citing cases may be incomplete.

Planning, Transport

Updated: 14 November 2022; Ref: scu.471933

European Commission v Hungary: ECJ 28 Feb 2013

ECJ Failure of a Member State to fulfil obligations – Development of the Community’s railways – Allocation of railway infrastructure capacity – Levying of charges for the use of railway infrastructure – Directives 91/440/EEC and 2001/14/EC – Incomplete transposition

Judges:

A. Tizzano, P

Citations:

C-473/10, [2013] EUECJ C-473/10

Links:

Bailii

Statutes:

Directive 2001/14/EC, Directive 91/440/EEC

European, Transport

Updated: 14 November 2022; Ref: scu.471524

European Commission v Kingdom of Spain: ECJ 28 Feb 2013

ECJ Failure of a Member State to fulfil obligations – Development of the Community’s railways – Directive 2001/14/EC – Allocation of railway infrastructure capacity – Levying of charges – Charges – Management independence

Judges:

A. Tizzano, P

Citations:

C-483/10, [2013] EUECJ C-483/10

Links:

Bailii

Statutes:

Directive 2001/14/EC

European, Transport

Updated: 14 November 2022; Ref: scu.471525

Sturgeon and Others v Condor Flugdienst GmbH: ECJ 19 Nov 2009

The claimants’ flights had been cancelled. In one case the passengers had been booked on an alternative flight which had been treated as a substitute for the original flight and the carriage had been performed under the original tickets. In the other, the passengers were booked on a flight operated by another airline and fresh tickets had been issued. In the former case the flight arrived 25 hours after the scheduled arrival time of the original flight; in the latter the flight arrived 22 hours late. Both sets of passengers sought to treat their flights as having been cancelled and brought claims for compensation under articles 5 and 7 of Regulation 261. In both cases it was said that the flight had been delayed rather than cancelled.
Held: Delay, however long, was not the same as cancellation, but that the principle of equal treatment required that the position of passengers whose flights were delayed should be compared with that of passengers whose flights were cancelled and that since both suffer similar damage in the form of loss of time they had to be treated in the same way. Passengers who, following a cancellation, are re-routed pursuant to article 5(1)(c)(iii) of Regulation 261 are entitled to compensation under article 7 if the carrier fails to arrange an alternative flight which departs no more than one hour before the originally scheduled time of departure and reaches its destination less than two hours after the scheduled time of arrival. They thus obtain a right to compensation in respect of a loss of time of three hours or more. In the view of the Court passengers who suffer a comparable loss of time by reason of delay to their flights must be treated in the same way. It expressed the critical part of its ruling in the following way: (2) Articles 5, 6 and 7 of Regulation 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in art 7 of the Regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier . .’

Judges:

K Lenaerts, P

Citations:

[2009] EUECJ C-432/07, [2009] EUECJ C-402/07, C-432/07, [2009] ECR I-10923, C-402/07, [2012] 2 All ER (Comm) 983

Links:

Bailii, Bailii

Statutes:

Regulation (EC) No 261/2004 2(1)

Citing:

Opinion – Sturgeon and Others v Condor Flugdienst GmbH ECJ 2-Jul-2009
Opinion (Joined cases) – Air transport – Distinction between the notions of ‘delay’ and ‘cancellation’ . .

Cited by:

Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
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 . .
Lists of cited by and citing cases may be incomplete.

European, Transport, Consumer

Updated: 14 November 2022; Ref: scu.470834

Prigge And Others v Deutsche Lufthansa AG (1): ECJ 13 Sep 2011

ECJ Directive 2000/78/EC – Articles 2(5), 4(1) and 6(1) – Prohibition of discrimination on grounds of age – Airline pilots – Collective agreement – Clause automatically terminating employment contracts at age 60

Judges:

V Skouris, P

Citations:

[2011] EUECJ C-447/09, C-447/09, [2011] IRLR 1052, [2011] Eq LR 1175

Links:

Bailii

Statutes:

Directive 2000/78/EC

Citing:

Opinion – Prigge And Others v Deutsche Lufthansa AG ECJ 19-May-2011
ECJ (Opinion) Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination based on age – Article 2, paragraph 5 – Article 4, paragraph 1 – Article 6, paragraph 1 – Articles . .
Lists of cited by and citing cases may be incomplete.

European, Transport, Discrimination

Updated: 14 November 2022; Ref: scu.470835

Humber Oil Terminal Trustee Limited v Owners of Ship Sivand: CA 29 Jan 1998

The appellant’s vessel ‘Sivand’ damaged harbour installations owned by the respondents, as the result of negligent handling. The respondents engaged contractors to carry out the repairs under a standard form of contract on ICE Conditions. An unforeseen event occurred in the course of the works. The contractors used a jack-up barge, meaning a barge which is supported when in position by extending legs which rest on the sea bed. The correct procedures were carried out, but the sea-bed and its sub-soil proved unable to support the weight of one of the legs. The barge capsized and became a total loss. The contractors claimed and recovered an extra payment under clause l2 of the ICE conditions for the consequences of this unforeseen event. The Respondents now seek to recover that extra amount from the appellants.

Citations:

[1998] EWCA Civ 100, [1998] 2 Lloyds Rep 97, [1998] CLC 751

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 13 November 2022; Ref: scu.143578

Baghlaf Al Safer Factory Co Br for Industry Ltd v Pakistan National Shipping Company and Another: CA 17 Dec 1997

An exclusive jurisdiction clause in contract remained effective though time barred in other country; jurisdiction declined on waiver of bar. A party with choice of jurisdictions suing here is only to be forced to change the forum after the time limit abroad has expired if the other party waives that time limit.

Citations:

Gazette 14-Jan-1998, Times 17-Dec-1997, [1997] EWCA Civ 2955

Jurisdiction:

England and Wales

Transport, International

Updated: 13 November 2022; Ref: scu.78073

Denise McDonagh v Ryanair Ltd: ECJ 31 Jan 2013

ECJ Air transport – Regulation (EC) No 261/2004 – Notion of ‘extraordinary circumstances’ – Obligation to provide assistance to passengers in the event of cancellation of a flight due to ‘extraordinary circumstances’ – Volcanic eruption leading to the closure of air space – Eruption of the Icelandic volcano Eyjafjallajokull

Judges:

K Lenaerts

Citations:

C-12/11, [2013] EUECJ C-12/11

Links:

Bailii

Statutes:

Regulation (EC) No 261/2004

European, Transport

Updated: 13 November 2022; Ref: scu.470789

NYK Bulkship (Atlantic) Nv v Cargill International Sa: ComC 1 Feb 2013

The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head charterers. Construction of the meaning and effect of an off-hire clause contained in a time charter.
Held: Field J remitted the matter to the arbitrators to establish causation. The arrest of the cargo and the vessel was not done as part of the performance of the discharging operation, and was irrelevant. However, he considered that IBG’s failure to discharge the cargo within the laydays allowed by its contract of sale with Transclear and its failure to pay the resultant demurrage arising under that contract, were omissions in the course of their performance of the discharging operation. This was because ‘it was Cargill after all who set in train the process of delegation and gave delegating parties a free hand to agree terms with delegates’

Judges:

Field J

Citations:

[2013] EWHC 30 (Comm), [2013] 1 Lloyd’s Rep 455

Links:

Bailii

Statutes:

Arbitration Act 1996 69

Jurisdiction:

England and Wales

Citing:

Cited – Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (‘Doric Pride’) CA 25-Jan-2006
The court considered the relationship between express an implied warranties.
Held: Under a time charterparty, hire continues to run unless the charterer can bring himself within the plain words of an off-hire provision; the risk of delay is . .
Cited – Mediolanum Shipping Co v Japan Lines Ltd (‘The Mediolanum’) CA 1984
The charterers had contracted to provide and pay for fuel. They ordered her to a safe port but she was directed to an unsafe place in that port by the refinery with whom the charterer had contracted for the supply of bunkers. The court was asked to . .
Cited – Adelfamar SA v Silos e Mangimi Martini Spa (‘the Adelfa’) 1988
. .
Cited – Adelfamar SA v Silos e Mangimi Martini Spa (‘the Adelfa’) 1988
. .

Cited by:

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

Arbitration, Transport

Updated: 13 November 2022; Ref: scu.470709

TNT Express Nederland v AXA Versicherung AG: ECJ 4 May 2010

ECJ Opinion – Judicial cooperation in civil and commercial matters Jurisdiction and recognition and enforcement of judgments Regulation (EC) No 44/2001 Article 71 Conventions concluded by the Member States in relation to particular matters Convention on the Contract for the International Carriage of Goods by Road (CMR)

Judges:

V. Skouris, P

Citations:

[2010] EUECJ C-533/08 – O, ECLI:EU:C:2010:243, [2011] RTR 136, [2010] ILPr 35, [2011] RTR 11

Links:

Bailii

Statutes:

Regulation (EC) No 44/2001

Jurisdiction:

European

Citing:

Opinion – TNT Express Nederland v AXA Versicherung AG ECJ 28-Jan-2010
ECJ (Opinion) Judicial cooperation in civil Jurisdiction, recognition and enforcement of judgments – Regulation (EC) No 44/2001 Scope Conventions Member States in specific matters CMR Lis another court . .

Cited by:

Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 13 November 2022; Ref: scu.470473

Fish and Fish Ltd v Sea Shepherd UK and Another: AdCt 25 Jun 2012

The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed underwater cages. The defendant ‘attacked’ the cages causing much damage, on the basis that the fish had been caught illegally. The claimant denied this. The parties now disputed the responsibility of the ship owner for the torts of its captain.
Held: The claim against the ship’s paper owners failed. The practical reality is that at all times it was SSCS which had possession and control of the ‘STEVE IRWIN’, and ‘Although beneficial ownership does not carry with it the right to possession and control, in this case it helps to explain how and why possession and control was as a matter of fact exercised throughout by SSCS. Though there was no bareboat charter and such an arrangement would be necessary to transfer the right of possession to SSCS. However, if, as was the case, SSCS and SSUK acted on the basis that the ‘STEVE IRWIN’ was in SSCS’s possession and control there would be no need for any such formal arrangement. Watson and the crew were acting on behalf of SSCS and not SSUK or SSCS and SSUK whilst on board the ‘STEVE IRWIN’ during the Blue Rage campaign and at the time of the incident.’
Hamblen J set out the principles for establishing accessory liability in tort: ‘In respect of the common design issue, persons may be joint tortfeasors when their respective shares in the commission of a tort are done in furtherance of a common design . . The joint tortfeasor needs to join or share in the commission of the tort which generally means some act which at least facilitates its commission. . . there is no tortious liability for aiding and abetting or facilitating the commission of a tort, even knowingly. There may, however, be such a liability if that is done pursuant to a common design . . In considering whether there is any such liability it is relevant to consider whether the person has been so involved in the commission of the tort as to make the infringing act his own’
and ‘In summary, it is apparent that none of the matters relied upon by the claimant were of any real significance to the commission of the tort. The main thrust of the claimant’s pleaded case was that the attack was directed or authorised or carried out by [the appellant]. Once it is found that Watson and the crew were not acting on behalf of [the appellant] the claimant has to rely on participation which is remote in time and place. Whether considered individually or collectively I find that the matters so relied upon are of minimal importance and played no effective part in the commission of the tort.’

Judges:

Hamblen J

Citations:

[2012] EWHC 1717 (Admlty), [2012] 2 Lloyd’s Rep 409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Koursk CA 1924
The navigators of two ships had committed two separate torts or one tort in which they were both tortfeasors.
Held: Three situations were identified where A might be jointly liable with B for B’s tortious act. Where A was master and B servant; . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc HL 12-May-1988
The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only . .
Cited – Unilever Plc v Gillette (UK) Limited CA 1989
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to . .
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department CA 23-Jul-1997
The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes . .
Cited – SABAF SpA v MFI Furniture Centres Ltd and Another CA 11-Jul-2002
The appellant challenged dismissal of its claim for patent infringement. The judge had held that the design was obvious, involving essentially only the collocation of two known features.
Held: Collocation was no more than a species of . .
Cited – Monsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .

Cited by:

Appeal from – Fish and Fish Ltd v Sea Shepherd Uk and Others CA 16-May-2013
The claimant company sought damages after their transport of live tuna was attacked by a protest group. They now appealed against a decision that the company owning the attacking ship was not liable as a joint tortfeasor.
Held: The appeal was . .
At first instance – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .
Lists of cited by and citing cases may be incomplete.

Transport, Torts – Other

Updated: 10 November 2022; Ref: scu.467653

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 damages or technically a debt.
Held: A clause allowing recovery of losses ‘due to failure to comply with charterer’s voyage instructions’ did not cover losses not contemplated. The word ‘indemnity’ can have two meanings.

Judges:

Staughton, Auld LJJ, Sir John Balcombe

Citations:

Times 16-Dec-1997, Gazette 08-Jan-1998, [1997] EWCA Civ 2754, [1998] 1 Lloyds Rep 351, [1998] CLC 90

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Novorossisk Shipping Co v Neopetro Co Ltd ChD 1990
. .
Cited – Momm v Barclays Bank International Ltd ComC 1977
The court considered the situation arising where there had been a payment from one customer’s account to another customer’s account within the same bank, and then reversed.
Held: The bank had until the end of the value date to decide whether . .
Cited – A/B Helsingfors Steamship Co Ltd v Rederiaktiebolaget Rex (The White Rose) 1969
A Finnish vessel had been ordered to load in Duluth, Minnesota, where Mr de Chambeau, an employee of charterers’ stevedores was injured while on board. He had left his proper place for purposes unconnected with his work, but owners were liable to . .
Cited – Harrison v Wright 11-Feb-1811
In assumpsit upon a memorandum for a charter-party, describing the agreement of the defendant, the shipowner, to proceed with all convenient speed to a foreign port, and there load, within 20 running days, a cargo from the plaintiff’s factors, and . .
Cited – Chandris v Isbrandtsen-Moller Co Inc CA 1950
The court considered whether an arbitrator could award interest in circumstances where section 3 of the 1934 Act expressly conferred such a power on ‘the court’ in proceedings tried in a ‘court of record’.
Held: Although section 3(1) of the . .
Cited – Mediterranean Freight Services Ltd v BP Oil International Ltd (The Fiona) CA 27-Jul-1994
A ship owner is to have made his ship seaworthy in order to claim an indemnity for dangerous fuel set alight by a third party. He was not entitled to claim where the failure to keep the ship seaworthy was his own.
Hirst LJ said: ‘The inclusion . .
Cited – Tor Line AB v Alltrans Group of Canada (The ‘TFL Prosperity’) HL 1984
A roll-on roll-off liner tendered under a charter party did not conform to the description in the contract and the owners relied on a widely drawn exclusion clause.
Held: The owners’ argument failed. A literal interpretation would have . .
Cited – Louis Dreyfus and Co v Parnaso cia Naviera SA (‘The Dominator’) 1959
The court considered whether it could look to a deleted clause to assist in its interpretation of the contract.
Held: The use of a word or phrase in the deleted part of a standard form clause may throw light on the meaning of the same word or . .
Cited – Yorkshire Dale Steamship Co Ltd v Minister of War Transport HL 1942
Treatment of Merchant as War Vessel
The House considered when a merchant vessel may be treated on the same footing as a war vessel and be deemed to be engaged on a warlike operation.
Held: This depended on the nature of the cargo and the voyage: ‘She was then in the act of . .
Cited – The Walumba (Owners) v Australian Coastal Shipping Commission 1965
(High Court of Australia) Instead of rescuing the vessel, she had been despatched to recover, the Walumba tug herself came into peril, and was salved by a pilot boat.
Held: The pilot boat was to be awarded pounds 10,000 for its services. A . .
Cited – Philco Radio v Spurling 1949
. .
Cited – Australian Coastal Shipping Commission v Green CA 1971
Because time begins to run from the date when a cause of action arises, it is necessary to consider what is the nature of an action for general average contribution.
Lord Denning MR said: ‘We so rarely have to consider the law of general . .

Cited by:

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

Transport, Contract

Updated: 10 November 2022; Ref: scu.89926

Tenacity Marine Inc v NOC Swiss Llc: ComC 22 Dec 2020

Application for an order discharging mandatory orders giving effect to letters of indemnity issued by it, either to obtain the release of hydrocarbon cargos in lieu of the production by it of original bills of lading or in order to obtain payment for hydrocarbon products it was selling but in respect of which it could not produce an original bill of lading.

Citations:

[2020] EWHC 3689 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 10 November 2022; Ref: scu.660103

Bridge Oil Ltd v The Owners and/or demise charters of the Ship “Guiseppe Di Vittorio” (No. 2): CA 1998

Citations:

[1998] CLC 165

Jurisdiction:

England and Wales

Citing:

Appeal from – Bridge Oil Ltd v The Owners and/or demise charters of the Ship ‘Guiseppe Di Vittorio’ (No. 2) AdCt 21-Nov-1997
Effect of State Immunity (Merchant Shipping) Order 1997 Court ordered sale of vessel pendente lite on 15th July. Court of Appeal dismissed appeal on 29th October and refused a stay. State Immunity (Merchant Shipping) Order 1997 made on 30th October . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 09 November 2022; Ref: scu.220812

Bridge Oil Ltd v The Owners and/or demise charters of the Ship “Guiseppe Di Vittorio” (No. 2): AdCt 21 Nov 1997

Effect of State Immunity (Merchant Shipping) Order 1997 Court ordered sale of vessel pendente lite on 15th July. Court of Appeal dismissed appeal on 29th October and refused a stay. State Immunity (Merchant Shipping) Order 1997 made on 30th October and came into force on 1st November. Republic submitted that the court should not allow vessel to be sold by reason of paragraph 3 of the Order. Held that paragraph 3 should not be construed as applying to vessels which the court had already ordered to be sold, inter alia, because to do so would be to interfere with or impair plaintiffs’ earlier rights under an Order of the court.

Judges:

Clarke J

Citations:

[1998] 1 Lloyd’s Rep. 661

Statutes:

State Immunity (Merchant Shipping) Order 1997 3

Jurisdiction:

England and Wales

Citing:

See Also – Bridge Oil Limited v Owners And/Or Demise Charterers of Ship ‘Giuseppe De Vittorio’ CA 29-Oct-1997
The ownership of a ship by a sovereign state did not make the ship free from the possibility of arrest for non-payment. The State having operated demise charter, and having failed to comply with convention had lost its state immunity of a ship from . .

Cited by:

Appeal from – Bridge Oil Ltd v The Owners and/or demise charters of the Ship ‘Guiseppe Di Vittorio’ (No. 2) CA 1998
. .
See Also – Bridge Oil Limited v Owners And/Or Demise Charterers of Ship ‘Giuseppe De Vittorio’ CA 29-Oct-1997
The ownership of a ship by a sovereign state did not make the ship free from the possibility of arrest for non-payment. The State having operated demise charter, and having failed to comply with convention had lost its state immunity of a ship from . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 09 November 2022; Ref: scu.220811

Bridge Oil Limited v Owners And/Or Demise Charterers of Ship ‘Giuseppe De Vittorio’: CA 29 Oct 1997

The ownership of a ship by a sovereign state did not make the ship free from the possibility of arrest for non-payment. The State having operated demise charter, and having failed to comply with convention had lost its state immunity of a ship from arrest.

Citations:

Times 10-Nov-1997, Gazette 19-Nov-1997, [1997] EWCA Civ 2591

Statutes:

Supreme Court Act 1981 21(4)

Jurisdiction:

England and Wales

Citing:

See Also – Bridge Oil Ltd v The Owners and/or demise charters of the Ship ‘Guiseppe Di Vittorio’ (No. 2) AdCt 21-Nov-1997
Effect of State Immunity (Merchant Shipping) Order 1997 Court ordered sale of vessel pendente lite on 15th July. Court of Appeal dismissed appeal on 29th October and refused a stay. State Immunity (Merchant Shipping) Order 1997 made on 30th October . .

Cited by:

See Also – Bridge Oil Ltd v The Owners and/or demise charters of the Ship ‘Guiseppe Di Vittorio’ (No. 2) AdCt 21-Nov-1997
Effect of State Immunity (Merchant Shipping) Order 1997 Court ordered sale of vessel pendente lite on 15th July. Court of Appeal dismissed appeal on 29th October and refused a stay. State Immunity (Merchant Shipping) Order 1997 made on 30th October . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 09 November 2022; Ref: scu.142990

Blue Nile Shipping Co Ltd; Khalil v Iguana Shipping and Finance Inc Owners of the Ship Happy Fellow: CA 25 Jul 1997

A French collision action preceded English proceedings by one of the owners to limit his liability. The parties disputed whether the fact that that owner subsequently admitted liability in France so that the only remaining issue was that of limitation meant that the English court was first seised.
Held: The French court was first seised, although limitation had not originally been an issue in that court. Saville LJ discussed articles 21 and 22, saying: ‘article 21 is concerned with proceedings and article 22 with actions. The questions are whether the proceedings involve the same cause or object or whether the actions are related. It is thus a misreading of the Convention to ask which court is first seised of issues which are or might be raised within the proceedings or actions. If such were the case, then the article would achieve precisely the opposite of their intended purpose which is, to achieve the proper administration of justice within the community ‘ It is a misreading of Article 28 to ask which court is first seised of ‘issues’.

Judges:

Saville LJ

Citations:

[1997] EWCA Civ 2192, [1998] 1 Lloyd’s Rep 13

Jurisdiction:

England and Wales

Cited by:

Cited – Stribog Ltd v FKI Engineering Ltd CA 25-May-2011
The defendants sought a stay of the proceedings on the ground that there were related actions already in existence in Germany.
Held: Rix LJ said:
As to article 27, Rix LJ said: ‘where the ‘same cause of action’ or the ‘same parties’ are . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 09 November 2022; Ref: scu.142589