Application for leave to appeal: ‘ it is always a consideration that this court will bear strongly in mind as to whether the amount in issue justifies the considerable costs – and, for that matter, the considerable occupation of court time – that are involved in a contested appeal.’
[2001] EWCA Civ 1872
England and Wales
Updated: 27 June 2022; Ref: scu.218604
[2002] EWCA Civ 1147, [2003] 2 CLC 1
England and Wales
Updated: 27 June 2022; Ref: scu.217454
A ship was insured under a time policy which contained the warranty ‘No St Lawrence between 1st October and 1st April.’ Between these dates she called at ports within the Gulf but not within the river St Lawrence, and she was subsequently lost within the period for which the policy was current. Held ( rev. judgment of Second Division) that the warranty imported, according to its natural meaning, that the ship would not during the currency of the policy enter either the river or the Gulf, that no custom of trade limiting the meaning of the words to the river was established, and therefore that the warranty having been broken, the assured was not entitled to recover.
Lord Chancellor, Lord Blackburn, and Lord Watson
[1884] UKHL 590, 21 SLR 590
Scotland
Updated: 27 June 2022; Ref: scu.636743
Appeal from a judgment against the defendants/appellants for andpound;3,842.36 plus interest and costs. It raises some interesting points under the Thames Conservancy Act 1932 and under express or implied licence arrangements (known as ‘accommodation licences’) made between the parties.
Simon Brown LJ VP CA, Mance LJ
[2001] EWCA Civ 517
England and Wales
Updated: 27 June 2022; Ref: scu.218050
[2002] EWCA Civ 1279
England and Wales
Updated: 23 June 2022; Ref: scu.217490
Application by the owners and mortgagee bank of the ‘ Kastor Too’ for summary judgment against the hull and machinery insurers of the vessel claiming $U.S. 3 million said to be due upon the total loss of the vessel by insured perils of fire and/or explosion
His Honour Judge Dean QC
[2001] EWHC 525 (QB)
England and Wales
Updated: 23 June 2022; Ref: scu.331023
Andrew Smith J
[2001] EWHC 543 (QB)
England and Wales
Updated: 23 June 2022; Ref: scu.331018
The Court was asked as to the enforcement of government approved airline tariffs which were being evaded by travel agents who bought air tickets between two airports both outside Germany with the passenger boarding the plane during its stopover at a German airport. It was also said that their conduct constituted unfair competition because the prices of the airline tickets they sold undercut the approved tariffs applied by their competitors. The Bundesgerichtshof referred questions to the Court raising the compatibility of the agreement on tariffs not only under Article 85 but also under Article 86. It recognised that the tariff agreements at issue in the proceedings might have a serious anti-competitive effect: they may even have the effect of completely eliminating price competition on the routes to which they relate.
Held: The principles established in Asjes continued to apply to domestic air transport and air transport between the EEC and third countries since those sectors were still not covered by implementing regulations made under Article 87. The Court drew a distinction between these flights and intra-Community flights because the Council and Commission had by this time enacted implementing measures for the latter.
R-66/86, [1989] EUECJ R-66/86
European
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.215681
ECJ 1. Article 16 (1) of regulation no 517/72 must be interpreted as meaning that decisions on applications to introduce a regular service or a special regular service by coach or bus between member states, adopted after a procedure requiring the prior agreement of the member states concerned or, where appropriate, a decision of the commission or council, are to be regarded as national decisions taken by the competent authority of the member state on whose territory the headquarters of the applicant undertaking is situated.
2. National rules which provide for the publication of applications to introduce a regular or special regular service by coach or bus and allow interested parties to submit their observations within 30 days before a decision is taken on those applications satisfy the member states’ obligation under the second subparagraph of article 16 (2) of regulation no 517/72 to ensure that transport undertakings have the opportunity to make representations concerning their interests in respect of such decisions. That provision does not require competing undertakings to be given the opportunity to bring a subsequent appeal.
3. The expression ‘existing passenger transport services’ in article 8 (1) of regulation no 517/72 on the introduction of common rules for regular and special regular services by coach and bus between member states includes all types and modes of transport, in particular other regular bus services partly on a different route or using another method of crossing the sea and passenger transport by rail.
C-88/86, R-517/72, [1987] EUECJ R-517/72
Updated: 21 June 2022; Ref: scu.215539
The tribunal de police de Paris sought a preliminary ruling in criminal proceedings against the executives of airlines and travel agencies, who were charged with infringing the French Civil Aviation Code when selling air tickets by applying tariffs that were different from the approved tariffs. According to the French Code, all airlines had to submit their tariffs to the Government for approval. The Ministry’s decision approving the tariff proposed by an airline rendered that tariff binding on all traders. The tribunal de police asked whether such a system was incompatible with the competition provisions of the Treaty.
Held: The question was understood to ask whether it is contrary to the Member States’ obligations under the Treaty to enforce approved tariffs if those tariffs are the result of an agreement, a decision or a concerted practice between the airlines contrary to Article 85. The Court referred to international agreements concerning civil aviation and the Chicago Convention on International Civil Aviation that re-affirms the principle of each State’s sovereignty over the airspace above its territory. The Court noted that, based on that principle of sovereignty, a network of bilateral agreements has been set up whereby States have authorised the establishment of one or more air routes between their respective territories. Those bilateral agreements follow a standard model which provides, amongst other things, that the tariffs for air services will be fixed by the companies that are authorized to operate the routes envisaged by each agreement. Those tariffs, which are often negotiated under the auspices of the International Air Transport Association (IATA), are then subject to the approval of the authorities of the signatory States. However, the French Government accepted that the bilateral agreements to which they were a signatory did not require them to ignore EU competition rules when approving tariffs.
In light of the structure created by Articles 88 and 89, the fact that an agreement may fall within the ambit of Article 85 does not, the Court held, suffice for it to be immediately prohibited by Article 85(1) and so automatically void under Article 85(2). Such a conclusion would be contrary to the general principle of legal certainty which is a rule of law that must be upheld in the application of the Treaty. It would have the effect of prohibiting and rendering automatically void certain agreements, even before it is possible to ascertain whether Article 85 as a whole is applicable to those agreements. Thus, the Court held, until the entry into force of implementing measures under Article 87, agreements are prohibited under Article 85(1) and are automatically void under Article 85(2) only in so far as they have been held by the authorities of the Member States, pursuant to Article 88, to fall under Article 85(1) and not to qualify for exemption from the prohibition under Article 85(3)
R-213/84, [1986] EUECJ R-213/84, [1986] ECR 1425
European
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.215431
It is for the transport undertaking to judge whether an individual control book must be issued to crew members and it is accordingly the duty of that undertaking to ensure that the provisions of article 14(7) and (8) of regulation (eec) no 543/69 are observed. The position would be different only if national legislation adopted in pursuance of article 14(9) of the regulation in the special case of the hiring of labour were to impose that duty on the undertaking providing the tem- porary labour.
R-76/77, [1977] EUECJ R-76/77
Updated: 21 June 2022; Ref: scu.214588
ECJ 1. Whenever community law has created for the institutions of the community powers within its internal system for the purpose of attaining a specific objective, the community has authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connexion. This is particularly so in all cases in which internal power has already been used in order to adopt measures which come within the attainment of common policies. It is, however, not limited to that eventuality. Although the internal community measures are only adopted when the international agreement is concluded and made enforceable, the power to bind the community vis-a-vis third countries nevertheless flows by implication from the provisions of the treaty creating the internal power and in so far as the participation of the community in the international agreement is necessary for the attainment of one of the objectives of the community.
2. The participation of specific member states, together with the community, in the conclusion of an agreement concerning inland navigation is justified, as regards navigation on the rhine, by the existence of certain international conventions which preceded the eec treaty and are capable of forming an obstacle to the attainment of the scheme laid down by the agreement. The participation of these states must however be considered as being for the sole purpose of carrying out the undertaking to make the amendments necessitated by the implementation of the scheme concerned. Within these limits, that participation is justified by the second paragraph of article 234 of the treaty and cannot therefore be regarded as encroaching on the external power of the community.
3. The legal effect with regard to the member states of an agreement concluded by the community within its sphere of jurisdiction results, in accordance with article 228 (2) of the treaty, exclusively from the conclusion thereof by the community.
4. In order to attain a common policy, such as the common transport policy governed by articles 74 and 75 of the treaty, the community is not only entitled to enter into contractual relations with a third country but also has the power, while observing the provisions of the treaty, to cooperate in setting up an international organism, to give the latter appropriate powers of decision and to define, in a manner appropriate to the objectives pursued, the nature, elaboration, implementation and effects of the provisions to be adopted within such a framework.
5. The conclusion of an international agreement by the community cannot have the effect of surrendering the independence of action of the community in its external relations and changing its internal constitution by the alteration of essential elements of the community structure as regards the prerogatives of the institutions, the decision-making procedure within the latter and the position of the member states vis-a-vis one another. More particularly, the substitution, in the structure of the organs of the proposed fund, of several member states in place of the community and its institutions, the alteration of the relationship between member states as laid down by the treaty, in particular by the exclusion or non-participation of certain states in the activities provided for and the grant of special prerogatives to certain other states in the decision-making procedure are incompatible with the constitution of the community and more especially with the concepts which may be deduced from the recitals of the preamble to and from articles 3 and 4 of the treaty. An international agreement the effect of which is also to contribute to the weakening of the institutions of the community and to the surrender of the bases of a common policy and to the undoing of the work of the community is incompatible with the provisions of the treaty.
6. The question whether the grant to a public international organ separate from the community of the power to adopt decisions which are directly applicable in the member states comes with the powers of the institution does not need to be solved, since the provisions of the agreement concerned define and limit the powers in question so clearly and precisely that they are only executive powers.
7. An international agreement concluded by the community is, so far as the latter is concerned, an act of one of the institutions within the meaning of subparagraph (b) of the first paragraph of article 177 of the treaty and therefore the court has jurisdiction to give a preliminary ruling on the interpretation of such an agreement. Since it is possible that a conflict may arise between the provisions concerning jurisdiction set out in the treaty and those laid down within the context of the proposed agreement according to the interpretation which might be attached to the provisions of the latter, the fund tribunal could only be established within the terms concerned on condition that judges belonging to the court of justice, who are under an obligation to give a completely impartial ruling on the contentious questions which may be brought before the court, are not called upon to serve on it.
OP-1/76, [1977] EUECJ OP-1/76
Updated: 21 June 2022; Ref: scu.214544
Articles 1, 2 and 4 of Regulation no 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport must be interpreted as covering any carriage coming within the scope of the regulation irrespective of the status of the driver of the vehicle so that the provisions of the regulation are applicable to carriage effected both by an independent trader and by an employed driver.
R-65/76, [1977] EUECJ R-65/76, C-65/76
European
Updated: 21 June 2022; Ref: scu.214518
ECJ 1. A legal obligation in general terms requiring transport rates to be approved by public authority cannot in itself be deemed to constitute a ‘tariff obligation’ within the meaning of article 2 (5) of regulation no 1191/69. Under this provision, the distinguishing features of a tariff obligation are not only that rates are fixed or approved by public authority but also that it satisfies the double condition that ‘ special ‘ tariff obligations for certain specified categories of passenger or goods, or on certain routes, should be involved, and that, in addition, they should be contrary to the commercial interests of the undertaking.
2. Articles 4 and 5 of regulation no 1191/69 do not exclude the possibility that economic disadvantages, within the meaning of the regulation, can subsist over a period of only one year and, accordingly, give rise to a claim for compensation. Neither do they exclude the right of member states, in assessing these disadvantages, to take into account the whole of the transport undertaking’ s economic situation, and to withhold compensation for disadvantages which appear to be temporary or accidental and, on a longer-term assessment, capable of being off-set in due course, or neutralized by a change of operating methods.
3. In calculating the amount of compensation to be paid to a transport undertaking, in a case where public service obligations have been partially terminated, there must be an apportionment, having regard to the characteristics and volume of the activities involved, of the total costs between the transport activities in respect of which the public service obligations have been maintained and those in which they are terminated.
The mere prospect for a transport undertaking of discontinuing certain activities following termination of public service obligations is insufficient to justify allocating the whole of the total costs to the activities it has been compelled to maintain, as this could take place only where those activities are in fact discontinued.
R-36/73, [1973] EUECJ R-36/73
Updated: 21 June 2022; Ref: scu.214342
Regulation (EC) No 925/1999 – Noise emissions of aeroplanes – Prohibition of re-engined aeroplanes with engines with a by-pass ratio of less than 3 – Validity
C-122/00, [2002] EUECJ C-122/00
European
Updated: 21 June 2022; Ref: scu.213889
[2001] EWCA Civ 1460
England and Wales
Updated: 21 June 2022; Ref: scu.201337
Part of an asphalt drying and mixing plant had been shipped on deck in breach of contract. The court asked whether the shipment on deck disentitled the shipowner from relying on Article IV rule 5.
Held: A carrier by sea, who carries cargo on deck in breach of a contract of carriage which is governed by the Rules, can not take advantage of Article IV rule 5 to limit his liability for loss or damage to that cargo.
Hirst J
[1989] 2 Lloyds Rep 494
England and Wales
Not followed – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another ChD 2002
. .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.181080
Langley J
[2002] EWHC 1306 (Comm)
England and Wales
Not followed – The Chanda ChD 1989
Part of an asphalt drying and mixing plant had been shipped on deck in breach of contract. The court asked whether the shipment on deck disentitled the shipowner from relying on Article IV rule 5.
Held: A carrier by sea, who carries cargo on . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.181081
ECJ Judgment – State aid – Airport charges – Lubeck Airport – Decision to initiate the procedure provided for in Article 108, paragraph 2, TFEU – Article 107, paragraph 1, TFEU – Manifest error of assessment – Article 10 of Regulation ( EC) 659/1999
T-461/12, [2014] EUECJ T-461/12
Regulation ( EC) 659/1999 10, TFEU 107
European
Updated: 21 June 2022; Ref: scu.536490
Application for a protective costs order in proceedings which he has commenced against Uber London Limited regarding the duty if such to provide a VAT invoice.
[2019] EWHC 391 (Ch)
England and Wales
Updated: 18 June 2022; Ref: scu.634780
Procurement challenge and application for judicial review – services on leaving the EU
[2019] EWHC 419 (TCC)
England and Wales
Updated: 18 June 2022; Ref: scu.634354
A ship’s officer was on duty upon deck on a ship at sea on a fine calm day. He disappeared. Earlier upon the same day he had complained of being sick and giddy. There was no further evidence to explain the disappearance. The County Court Judge held that his death had occurred by accident arising out of and in the course of the employment.
Held that the facts warranted the conclusion of the County Court Judge.
Lord Chancellor (Loreburn), Lords Ashbourne, Alverstone, and Shaw
[1911] UKHL 1095, 48 SLR 1095
England and Wales
Updated: 18 June 2022; Ref: scu.619196
Recorder Andrew Singer QC
[2018] EWHC 3366 (TCC)
England and Wales
Updated: 17 June 2022; Ref: scu.635822
[1920] UKHL 781
Scotland
Updated: 17 June 2022; Ref: scu.631518
The ‘Bogota,’ a steamer 415 feet long, was being towed out of a graving dock on the north bank of the Clyde, stern first, by a tug, the width of the river ex adverso of the dock being about 500 feet. When she was about two-thirds out of the dock and still athwart the river, her tug being about mid-channel, she sighted the ‘Alconda’ three-quarters of a mile away coming up the river under her own steam with two tugs attached. The ‘Bogota’ had steam up but was not using it, her intention being not to use it until she had been straightened out in the river preparatory to proceeding up stream. On sighting the ‘Alconda’ she gave four blasts of her steam whistle, twice repeated, to show that the river was blocked, and continued her maneuver. The master of the ‘Alconda’ heard the ‘Bogota’s’ signals and was aware of their meaning, viz., that the river was blocked. The ‘Alconda,’ however, held on her course, intending to pass between the ‘Bogota’s’ tug and the south bank of the river. In attempting to do so she collided with the ‘Bogota’s’ tug, forcing the tug back on the ‘Bogota,’ with the result that all three vessels were injured.
Held: (aff. judgment of the Second Division, diss. Lord Ormidale) that the ‘Alconda’ was solely to blame for the collision.
Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Phillimore, and Lord Blanesburgh
[1924] UKHL 458, 61 SLR 458
England and Wales
Updated: 17 June 2022; Ref: scu.631552
Goods were shipped for carriage from Australia to London by a steamer employed by the Crown as a transport under a bill of lading which conferred on the carriers liberty, inter alia, ‘to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages or otherwise howsoever given by H.M.’s Government. . . ‘ The ship was used for about 3 months as a warehouse at Imbros and Mudros for meat, part of which was transhipped from other vessels. On proceeding with the voyage the ship was torpedoed by the King’s enemies and the goods lost. A petition of right was presented by the respondents, the shippers, claiming that the use of the ship as a warehouse constituted a deviation from the voyage and precluded the appellant from relying on a clause in the bill of lading exempting him from liability for damage by the King’s enemies.
Held that the use of the ship as a warehouse was inconsistent with the main object of the contract and therefore did not come under the exceptions reserved in the bill of lading.
Decision of the Court of Appeal, 116 L.T.R. 515, upheld.
Lord Chancellor (Finlay), Viscount Haldane, Lords Atkinson, Sumner, and Parmoor
[1918] UKHL 386, 56 SLR 386
England and Wales
Updated: 17 June 2022; Ref: scu.631479
A bill of lading provided that goods should be delivered to the shipper or his assigns, ‘he or they paying freight for the said goods with other conditions as per charter-party with average accustomed. ‘ . . ‘Deck load at shipper’s risk, and all other terms and conditions and exceptions of charter to be as per charter-party, including negligence clause.’ The charter-party contained an arbitration clause.
Held that the terms of the bill of lading were insufficient to incorporate therewith the arbitration clause of the charter-party, which could only be done by clear and explicit language.
Lord Chancellor (Loreburn), Lords Atkinson, Gorell, and Robson
[1911] UKHL 628, 49 SLR 628
England and Wales
Updated: 17 June 2022; Ref: scu.619206
The claimant bus operator sought damages after one of its buses was off the road for several weeks. It made a claim for general damages for loss of use, using for that purpose a formula produced by the Confederation of Passenger Transport UK, which, broadly speaking, ascribes to each bus in the operator’s fleet a proportion of the total overheads incurred in operating the whole fleet; the ‘standing charge’ approach. The insurer appealed saying that the correct calculation was by reference to interest on capital together with an allowance for depreciation and other fixed charges referable to the damaged vehicle.
Held:
Moore-Bick, Rimer, Underhill LJJ
[2013] EWCA Civ 887
European Communities (Rights against Insurers) Regulations 2002
England and Wales
Cited – The Owners of No 7 Steam Sand, Pump Dredger v The Owners of SS ‘Greta Holme’ HL 1897
The plaintiff’s vessel, a sand dredger, was being used to deepen the river near the landing stage. It was damaged in a collision with the ‘Greta Holme’, for which the latter was solely responsible. The dredger was out of action for fifteen weeks and . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – Admiralty Commissioners v Owners of the Steamship Susquehanna; The Susquehanna HL 1926
An Admiralty oiler, the ‘Prestol’, was damaged in a collision with the defendants’ vessel in the Baltic. Her place was taken by another oiler, the ‘Belgol’, which was withdrawn from service on the Clyde. In effect, the Admiralty was able to make do . .
Cited – Admiralty Commissioners v Chekiang (Owner), The Chekiang HL 1926
There had been a collision at sea in which the defendant’s vessel caused damage to HMS Cairo. The House was asked to assess damages after damage to the plaintiff’s vessel, and whether in the case of a warship the registrar had been entitled to award . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 June 2022; Ref: scu.513518
(from the West African Court of Appeal)
[1957] 3 All ER 216, [1954] UKPC 44, [1955] 2 WLR 13, [1954] 2 Lloyd’s Rep 607, [1955] AC 130
Commonwealth
Updated: 17 June 2022; Ref: scu.445909
The company had, under a private Act of Parliament, constructed a jetty and a roadway. They objected to the provision of similar services by the respondents
Held: Their appeal failed. An injunction against competition was refused. The Act did not confer on the ferry company an exclusive right of ferry. The respondents had in fact for many years previously carried passengers over a relate route.
After quoting the relevant section Lord Macmillan, with whom the other members of the House concurred, said: ‘Now this section does not purport to grant a franchise of ferry. It merely empowers the company to establish a ferry service. It imposes no obligation on the company whatever; it does not require the company to provide any service. The terms of the section are permissive not obligatory, enabling not mandatory. If the company chose not to provide a ferry service no member of the public could compel it to do so. In short the position of the company is comparable to that of a railway company which has obtained power to construct and work a new line but is under no obligation to the public either to construct it or to work it when constructed’
Lord Macmillan
[1930] AC 549, 99 LJ Ch 337, 143 LT 313, 46 TLR 439, 28 LGR 351
England and Wales
Appeal from – Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons CA 1929
In construing a private statute, it should be viewed so as not to prevent persons carryong out otherwise lawful acts unless expressly so stated.
Scrutton LJ said that clear and unequivocal words were necessary to deprive persons of the power . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 June 2022; Ref: scu.272212
Private Legislation Procedure – Locus of Meeting of Commission – Fixing Locus – Discussion in House of Commons on Motion for Adjournment – Statement by the Chairman of the Commissioner
[1902] UKHL 873 – 1
Scotland
See Also – Aberdeen Suburban Tramways Provisional Order HL 29-Apr-1902
Private Legislation Procedure – Locus of Sitting of Commission – Questions and Replies in House of Commons . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.630790
The appellants, owners of the ship ‘J.,’ had contracted to deliver at Hull a cargo belonging to the respondents. Off the Firth of Forth the ship was torpedoed by an enemy submarine, and the master and crew were compelled to take to their boats under threat of violence. Further explosions were heard on board, and the ship was left apparently in a sinking state. The crew were picked up and taken to Aberdeen, where the master announced that his ship had been sunk. In fact, however, the ship had not sunk and was towed to Leith by salvors. Meantime the appellants’ agents had advised the respondents of the loss of ship and cargo. The respondents having heard of the arrival of the ship at Leith claimed to elect to take possession of their cargo at Leith and that no freight was due. The action was brought by the respondents for delivery of the cargo.
Held (dis. Lord Sumner) that the ship had been abandoned in circumstances which indicated no intention not to perform the contract, and that the appellants’ agents’ letter did not amount to notice of abandonment of the contract so as to entitle the respondents to receive the cargo free of freight.
Lord Chancellor (Finlay), Viscount Haldane, Lords Sumner, Parmoor, and Wrenbury
[1918] UKHL 397, 56 SLR 397
England and Wales
Updated: 14 June 2022; Ref: scu.631480
[1902] UKHL 880 – 1
Scotland
Updated: 14 June 2022; Ref: scu.630794
Private Legislation Procedure – Locus of Sitting of Commission – Questions and Replies in House of Commons
[1902] UKHL 873
Scotland
See Also – Aberdeen Suburban Tramways Provisional Order (1) HL 29-Apr-1902
Private Legislation Procedure – Locus of Meeting of Commission – Fixing Locus – Discussion in House of Commons on Motion for Adjournment – Statement by the Chairman of the Commissioner . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.630789
A vessel (Lord of the Isles) supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law. The ship was subsequently forfeited by a Portuguese prize court. The Queen’s admiral happened to be a British subject, the adventurer Sir Charles Napier (‘not to be trusted except in the hour of danger’), and upon his return home he was sued in the King’s Bench for trespass.
Held: The action was dismissed.
Tindal CJ stated that ‘no one can dispute the right of the Queen of Portugal to appoint in her own dominions the defendant . . as her officer . . to seize a vessel which is afterwards condemned as a prize’
The decree of the prize court was a judgment in rem and conclusive. The CJ continued to reject an argument to the effect that having entered Portuguese service in breach of the Foreign Enlistment Act 1819, Napier was disabled from relying on the authority of the Queen of Portugal or the decision of her prize courts. A breach of the Act could not render the acts of the Portuguese state justiciable: ‘no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize; or can deny, that the relation of lord and servant, de facto, subsists between the queen and the defendant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country … For as we hold that the authority of the Queen of Portugal to be a justification of the seizure ‘as prize’, there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second.’
Tindal CJ
[1836] EngR 690, (1836) 2 Bing NC 781, (1836) 132 ER 301
England and Wales
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.315022
[1844] EngR 8, (1844) 5 QB 747, (1844) 114 ER 1431
England and Wales
Updated: 13 June 2022; Ref: scu.304600
[1855] EngR 831 (A), (1855) 21 Beav 162
England and Wales
Updated: 13 June 2022; Ref: scu.292753
Dyson LJ
[2001] EWCA Civ 1962
England and Wales
Updated: 13 June 2022; Ref: scu.201557
ECJ State aid – Articles 107 TFEU and 108 TFEU – Benefits granted by a public airport operator to a low-cost airline – Decision to initiate a formal investigation procedure in respect of that measure – Obligation of Member States’ courts to abide by the Commission’s assessment in that decision concerning the existence of aid
‘It is also important to note that the application of the European Union rules on State aid is based on an obligation of sincere co-operation between the national courts, on the one hand, and the Commission and the courts of the European Union, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty. In the context of that co-operation, national courts must take all the necessary measures, whether general or specific, to ensure fulfilment of the obligations under European Union law and refrain from those which may jeopardise the attainment of the objectives of the Treaty, as follows from article 4(3) TEU. Therefore, national courts must, in particular, refrain from taking decisions which conflict with a decision of the Commission …’
C-284/12, [2013] EUECJ C-284/12, [2014] 2 CMLR 20
European
Cited – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the CJEU.
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.518455
Renewed application for permission to appeal – damage to cargo
[2001] EWCA Civ 822
England and Wales
Updated: 11 June 2022; Ref: scu.201047
[2001] EWCA Civ 61, [2001] 1 All ER (Comm) 883, [2001] CLC 643, [2002] ILPr 26, [2001] 1 Lloyd’s Rep 490
Convention for the International Carriage of Goods by Road 1956 31
England and Wales
Overruled – Frans Maas Logistics (UK) Ltd v CDR Trucking BV ComC 23-Mar-1999
CMR Convention: Articles 31(2) and 36 – relating on jurisdiction. Brussels Convention: Article 57. Applicability in cases covered by the CMR convention.
Article 31.2 of CMR to be limited to proceedings brought by same claimant against the same . .
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.
Updated: 11 June 2022; Ref: scu.200723
The Railways Clauses Consolidation Act 1845 provides, by section 51, as to roads crossing a railway by bridges, that where a bridge has been built to the original width of the road but not up to the maximum prescribed by the Act, when the road is subsequently widened the railway is bound to widen the bridge.
Held that the liability of the railway company under the section extended only to the bridge actually intersecting the railway line and not to the approaches thereto.
Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne and Macnaghten
[1909] UKHL 1037, 46 SLR 1037
England and Wales
Updated: 11 June 2022; Ref: scu.620577
[2012] EWCA Civ 1355
England and Wales
Updated: 11 June 2022; Ref: scu.465102
Provided the appeal was on a point of law, it was not neccesary for a party wishing to appeal against a decision of the Transport Tribunal first to obtian leave to appeal.
Times 29-Jan-2008
England and Wales
Updated: 11 June 2022; Ref: scu.264007
Lord Denning MR
[1976] 1 Lloyds Rep 489
England and Wales
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 – 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.
Updated: 11 June 2022; Ref: scu.219878
There had been a collision at sea.
Held: (Addendum) Where the admiralty court sought advice from assessors, modern good practice required that the advice should be disclosed to the parties advisers and that they have opportunity to comment. Nautical assessors are experts within the Rules. The practice set out in the Hannibal did not fulfil art 6 requirements. Had counsel seen the advice, opportunity might have been taken to clarify a point central to the issues.
Lord Justice Clarke Lord Justice Sedley Lord Phillips Of Worth Matravers, MR
[2004] EWCA Civ 1007, Times 19-Aug-2004
Civil Procedure Rules 35.15(4), European Convention on Human Rights 6
England and Wales
Appeal from – Bow Spring, Owner of the Ship v Manzanillo Ii, Owners of the Ship Adct 22-Jul-2003
collision at sea . .
Cited – Sapporo Maru (Owners) v Statue of Liberty (Owners); The Statue of Liberty HL 1968
There had been a collision between two ships. The plaintiff sought to have admitted in evidence a film of radar echoes recorded by a shore radio station. The defendants argued that evidence produced mechanically and without human intervention was . .
Cited – The Pelopidas 1999
The use in court of plots of ship courses was to be only with care. . .
Cited – The Sitarem 2001
The court considered the use of plots in cases involving collisions at sea. A plot shows what might have happened not what did happen. . .
Cited – The Ansonia 1920
A judge in a shipping case is not bound to accept the advice he receives from the assessors. . .
Cited – Krcmar And Others v The Czech Republic ECHR 3-Mar-2000
‘The concept of a fair hearing . . implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and . .
Not current practice – The Hannibal 1867
‘for the future in causes of collision and salvage, heard before the Trinity Masters, he should not sum up the evidence; but that the Court and Trinity Masters would retire and, on their return, the judgment of the Court would be given’. . .
Appealed to – Bow Spring, Owner of the Ship v Manzanillo Ii, Owners of the Ship Adct 22-Jul-2003
collision at sea . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199592
Whilst in port the flange of a pipeline had broken so as to allow a discharge of the cargo, delaying the sailing.
Held: The term in the contract ‘a breakdown of machinery or equipment’ was to be taken to include such a breakdown, allowing the charterer claim demurrage under the Asbatankvoy form of voyage charterparty.
Lord Justice Clarke Lord Justice Laws Lord Justice Ward
[2004] EWCA Civ 864, Times 24-Aug-2004
England and Wales
Updated: 11 June 2022; Ref: scu.198683
Passengers on air flights who had suffered deep vein thrombosis through inactivity whilst travelling sought damages.
Held: The claim in its nature was for something unrelated to any particular event. The word ‘accident’ necessitated some sort of event, an ‘unexpected or unusual event or happening that is external to the passenger’ and a failure to warn of the danger could not itself be an accident. The Convention provided the exclusive jurisdiction for claims against carriers. The claim failed.
Phillips of Worth Matravers MR, Judg, Kay LJJ
Times 14-Jul-2003, Gazette 18-Sep-2003
Warsaw Convention on International Carriage by Air 1929 17
England and Wales
Appeal from – In re Deep Vein Thrombosis and Air Travel Group Litigation QBD 20-Dec-2002
The claimants claimed to have suffered deep vein thrombosis having been sat in cramped conditions for long periods whilst travelling by air. They sought compensation, saying that the failure by the airlines to warn them and take steps to minimise . .
See Also – Deep Vein Thrombosis and Air Travel Group Litigation, Re CA 3-Jul-2002
Group litigation between the appellant passengers and the respondent carriers. Most of the passengers allege that they have suffered deep vein thrombosis leading to serious injury, as a result of travelling in the carriers’ aircraft. In some . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.184545
‘The law as to the indorsement of bills of lading is as clear as in my opinion the practice of all European merchants is thoroughly understood. A cargo at sea is incapable of physical delivery, and a bill of lading by the law merchant is universally recognised as its symbol; and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods. It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be.’
Bowen LJ
(1883) 11 QBD 327
England and Wales
Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.181882
The court considered the use of powers of compulsory purchase of land under the Acts.
Held: ‘In answer to counsel’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State’s confirmation of the compulsory purchase order. Second, however, the Secretary of State, as counsel on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to land owners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take.’
Slade LJ, Croom-Johnson LJ and Ralph Gibson LJ
[1989] 1 All ER 933, (1988) 57 P and CR 330
Highways Act 1980, Highways Act 1981
England and Wales
Explained – Prest v Secretary of State for Wales CA 1982
Lord Denning MR said: ‘I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so . .
Cited – Chant v Secretary of State for Transport, Local Government and the Regions and another Admn 1-Jul-2002
The applicant challenged an order requiring him to discontinue use of land on which were listed buildings in need of repair. The authority had concluded that compulsory purchase would not be sufficient to achieve the result required. The land owner . .
Cited – St Leger-Davey and Another v First Secretary of State and others CA 1-Dec-2004
The applicants challenged permission granted to erect mobile phone masts, saying that the operators should have made application to the County Court.
Held: the provisions referred to allowed the company to follow a county court procedure where . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.181251
ComC Shipping – inducement of breach of contract – justification – moral duty – quantum – cost of substituting alternative vessel
Rix J
[1997] 2 Lloyds Rep 35
England and Wales
Updated: 10 June 2022; Ref: scu.186613
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: ‘the charterer does commit a breach of contract by failing to redeliver at the end of the charter period and is liable in damages, if the market rate exceeds the charter rate, as well as for hire until redelivery takes place’.
Evans J
[1991] 2 LLoyds Rep 40
England and Wales
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 . .
At First Instance – 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 . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.246862
[2004] EWCA Civ 346
England and Wales
Updated: 10 June 2022; Ref: scu.195106
Eder J
[2011] EWHC 2917 (Comm)
England and Wales
Updated: 10 June 2022; Ref: scu.448152
The master of a ship had not been to sea for twenty-two years, being employed on shore as a stevedore, and on the last occasion when he was at sea his ship had been lost and his certificate suspended for six months. The vessel, whose market value was about pounds 9000, and whose freight, one-half of which had been paid before sailing, was pounds 4790, was insured on behalf of the owners, on hull, valued at pounds 18,500, pounds 19,000, on freight, valued at pounds 5500, pounds 5500, on disbursements, P. P. I. policy, pounds 4600, on policies effected by the manager of the ship, who took out also P. P. I. policies for pounds 6500 on his own behalf.
The underwriters of the hull were not informed of the master’s record, nor of the freight and disbursements policies or the policies on behalf of the manager.
The vessel having become a total loss, and the owners suing under the policies on the hull, held, affirming judgment of the First Division, (1) that as the master’s competency was covered by the warranty of seaworthiness there was no duty on the owners to disclose to the underwriters his record, and (2) that in the circumstances the master was not proved to have been incompetent so as to put the owners in breach of the warrant of seaworthiness; but, reversing judgment of the First Division, (3) that there was a duty on them to disclose the other policies of insurance, these being material circumstances which would influence the mind of a prudent insurer in fixing the premium and determining whether he would take the risk, and that the policies were therefore voidable and the underwriters not liable.
Lord Chancellor (Loreburn), Lord Alverstone, Lord Shaw, and Lord Robson
[1911] UKHL 796, 48 SLR 796
Scotland
Updated: 09 June 2022; Ref: scu.619200
[2004] EWHC 15 (Comm)
Updated: 08 June 2022; Ref: scu.192152
The Hon Mr Justice Moore-Bick
[2004] EWHC 66 (Comm)
England and Wales
Updated: 08 June 2022; Ref: scu.192102
Lord Justice Mance Lord Justice Pill Lord Justice Evans-Lombe
[2004] EWCA Civ 3
England and Wales
Cited – Kolmar Group Ag v Traxpo Enterprises Pvt Ltd ComC 1-Feb-2010
The claimant sought damages in contract alleging economic duress. They said that at a late stage, when the defendant knew of the urgent needs of the caimant, he imposed an exorbitant change of price.
Held: The claim succeeded. The pressure . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.192103
[2003] ScotCS 315, [2004] LLR 211
Scotland
Updated: 08 June 2022; Ref: scu.189753
Appeal from refusal of road service licence.
[2002] NICA 22
Northern Ireland
Updated: 08 June 2022; Ref: scu.189663
[1914) 1 Ch 822
England and Wales
Cited – Europhone International Ltd v Frontel Communications Ltd ChD 25-Jul-2001
Although the VAT regime required all commercial enterprises to issue VAT invoices in a timely way, that is not sufficient, of itself, to create an implied term into contracts between businesses, that invoices should be issued in a way which would . .
Appeal from – Hammerton and Another v Earl of Dysart and Another HL 23-Jul-1915
The plaintiff sought a declaration that he owned an ancient right of ferry over the Thames, and that th edefendant had disturbed it by setting up a new ferry a short diatnce downstream.
Held: The traffic for the new ferry was largely generated . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.181220
Challenges were made to the way in which plans for expansion of Stansted Airport were made and adopted.
Held: Judicial review was granted in part. The complainants said there was no rational basis for the conclusion that the construction of an additional runway at Stanstead, followed by a further new one at Heathrow would be commercially viable, and that there had been a failure properly to consult. The applicant succeeded on the challenges to the decisions on the commercial viability of the Stanstead runway and failure to consult, but failed on other challenges. In general it was not unlawful for the adoption of the plan to go ahead subject to qualifications that the consultation for the runway at Stanstead had not been on the runway actually proposed, and the policy wrongly represented the level of consultation undergone in respect of the Luton extension.
Sullivan J
[2005] EWHC 20 (Admin), Times 22-Feb-2005
England and Wales
Updated: 08 June 2022; Ref: scu.222792
[2002] EWHC 1306 (Comm)
England and Wales
Updated: 08 June 2022; Ref: scu.189165
Challenge to toll fee for buses over the Humber Bridge.
[2002] EWHC 2261 (Admin)
Humber Bridge Act 1959, Humber Bridge Act 1971
Appeal from – The Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions CA 25-Jun-2003
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.189093
The prosecutor Agency appealed by way of case stated against a decision refusing to allow them to admit documentary evidence.
Held: The appeal was dismissed, but the court took the opportunity to say that a case stated did not need as in this case to set out the full details of some 200 informations which did not affect the ruling. A case stated should set out the facts as found or accepted. The magistrates should if necessary seek assistance from the advocates in drafting the agreed statement of facts, and setting out any areas of disagreement.
Kennedy LJ, MacKay J
[2003] EWHC 2879 (Admin), Times 05-Dec-2003
Cited – Regina v Foxley CACD 9-Feb-1995
Written statements can be admissible at trial with the protections given by the section without being supported by oral evidence. An inference of the personal knowledge of the maker of statement is permissible. . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188529
Lord Justice Mance Lord Justice Mummery Lord Justice Simon Brown
[2003] EWCA Civ 1715
England and Wales
Updated: 08 June 2022; Ref: scu.188396
The Honourable Mr Justice Morison
[2003] EWHC 2225 (Comm)
England and Wales
Updated: 08 June 2022; Ref: scu.187288
[2003] EWHC 2320 (Comm)
England and Wales
Updated: 08 June 2022; Ref: scu.187127
(Order) Failure by a Member State to fulfil its obligations – Articles 28 EC to 30 EC – Free movement of goods – Articles 1 and 3 of Regulation (EEC) No 881/92 – Articles 1 and 6 of Regulation (EEC) No 3118/93 – Transport – Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods – Air quality – Protection of health and the environment – Proportionality principle
[2005] EUECJ C-320/03, [2005] ECR I-9871, [2006] All ER (EC) 513, [2006] Env LR 31, [2006] 2 CMLR 12
European
Updated: 08 June 2022; Ref: scu.186335
ECJ Regulation (EEC) No 1191/69 – Operation of urban, suburban and regional scheduled transport services – Public subsidies – Concept of State aid – Compensation for discharging public service obligations
C-280/00, [2003] EUECJ C-280/00
Updated: 07 June 2022; Ref: scu.185289
The arbitrator had held in favour of the charterers that the owners were limited to damages and could not claim hire. The owners appealed.
Held: The arbitrator had not applied the law correctly in rejecting the owners’ claim to hire, and he remitted the award.
Simon J
[2003] EWHC 1936 (Comm), [2003] 2 Lloyds Rep 693
England and Wales
Cited – Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago CA 1976
The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs . .
Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.185067
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the Regulation made it clear beyond peradventure that the ommission was a clerical error, and the Regulation should be read accordingly. The court allowed reference to an Explanatory Note appended to a statute as in appropriate cases. Reference was made to earlier authorities in which, in relation to primary legislation, resort to such Explanatory Notes was permissible, at least where there was said to be ambiguity or obscurity or a construction which would otherwise lead to absurdity. ‘the same or very similar principles must apply to statutory instruments’. The purpose would be to identify the mischief which the statute or regulation was intended to prevent.
Lord Justice Auld, Lord Justice Clarke, Lord Justice Jonathon Parker
[2003] EWCA Civ 1842, [2004] QB 310, Times 16-Jul-2003
Humber Bridge (Revision of Tolls and Vehicle Classification) Order 1997 (1997 No 1950), Humber Bridge (Revision of Tolls and Vehicle Classification) Order 2000 (2000 No 264), Humber Bridge (Revision of Tolls and Vehicle Classification) Order 2002 (2002 No 786)
England and Wales
Appeal from – Confederation of Passenger Transport UK v Humber Bridge Board Admn 1-Nov-2002
Challenge to toll fee for buses over the Humber Bridge. . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.184037
The owners of cargo claimed damages from the carriers for a cargo of jet oil rejected at the port of destination because of contamination suffered on board.
Held: In interpreting the rules, the court must adopt a process of construction which is appropriate to a set of rules agreed internationally and enacted into United Kingdom law. The process is both purposive and practical. The question was whether there had been delivery, or whether a second part of the voyage had been under a varied contract so as to extend the time limit. US case law suggests that an important question in deciding that question is whether the delivery was made under an entirely separate and distinct transaction. The question should be the broad one, whether in all the circumstances of the case the delivery was ‘delivery’ within the rule. There was delivery of the goods within the meaning of Article III Rule 6 at thesecond port. The oil was the same jet oil, the problem leading to the second voyage was the same for both shipper and cargo owner, and the second voyage arose from the charterparty. The claim was not therefore out of time.
Lord Justice Kay Lord Justice Clarke The Vice Vice-Chancellor
[2003] EWCA Civ 664, Times 03-Jun-2003, Gazette 10-Jul-2003
Hague-Visby Rules Article III Rule 6
England and Wales
Cited – The Ot Sonja CA 1993
The time limit under the Rules applied where goods had not been loaded and that time would start to run from the date when the goods ought to have been delivered. . .
Cited – Aries Tanker Corp v Total Transport Ltd; The Aries HL 1977
Claims for freight charges are an exception to the general rule that all claims between parties must be resolved in one action. A claim for freight cannot be a claim ‘on the same grounds’ as a counter-claim for loss or damage arising out of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.182219
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A straight bill of lading requires delivery of the goods to the named consignee and no other. The first carrier acted only as an agent in arranging the on-carriage by the second carrier. A straight bill of lading is a ‘bill of lading or any similar document of title’ within the Act.
Lord Justice Rix Lord Justice Peter Gibson Mr Justice Jacob
[2003] EWCA Civ 556, Times 05-May-2003, Gazette 03-Jul-2003, [2004] QB 702, [2003] 2 Lloyd’s Rep 113
Carriage of Goods by Sea Act 1971
England and Wales
Cited – Sanders v Maclean CA 1883
‘The law as to the indorsement of bills of lading is as clear as in my opinion the practice of all European merchants is thoroughly understood. A cargo at sea is incapable of physical delivery, and a bill of lading by the law merchant is universally . .
Appeal from – J I MacWilliam Co Inc v Mediterranean Shipping Co Sa ComC 17-Apr-2002
A straight bill of lading did not fall within section 1(4) of the 1971 Act and article I (b) of the Rules. . .
Cited – Stafford Allen and Sons Ltd v Pacific Steam Navigation Company 1956
A first carrier’s bill of lading provided for shipment at Nicaragua, discharge and transshipment at Cristobal by a named ‘on carrier’ and a final destination in London. Clause 11, dealt with the circumstances of transshipment, to the effect that the . .
Cited – The Anders Maersk 1986
(Hong Kong High Court) A bill of lading stated that the port of shipment was Baltimore and the port of discharge was Shanghai. The bill gave a right of transshipment, which was exercised at Hong Kong. It was described as a through bill of lading. It . .
Cited – Parsons Corporation and others v C V Scheepvaartonderneming ‘The Happy Ranger’ CA 17-May-2002
There was a contact for the carriage by sea of three reactors. The contract applied the Hage-Visby rules.
Held: The contract applied the rules as they would apply in the country of shipment if they were applied mandatorily. The contact should . .
Cited – C P Henderson and Co v The Comptoir D’Escompte de Paris PC 1873
The court considered a bill of lading in the usual form, save that the words ‘or order or assigns’ are omitted. The court was prepared to assume that such a bill was not a negotiable instrument. It was argued that, notwithstanding the omission of . .
Cited – The Ship ‘Marlborough Hill’ v Alex Cowan and Sons Limited PC 1921
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty . .
Cited – Thrige v United Shipping Company Ltd CA 1924
The plaintiff sold machinery to a purchaser in England. The terms of sale were cash against documents. Thrige took a straight bill of lading which named the Victoria Company as the consignee without any reference to ‘or order or assigns’. The goods . .
Cited – Hugh Mack and Co Ltd v Burns and Laird Lines Ltd 1944
The shipment was of men’s clothing carried pursuant to a consignment note and receipt stamped ‘Non-negotiable’. The consignment note named consignees in Scotland and stated: ‘Please receive for forwarding per Burns and Laird Lines’ steamers the . .
Cited – Gardano and Giampieri v Greek Petroleum George Mamidakis and Co 1961
The shipment was made under a candf sale contract, a straight bill of lading, pursuant to a charterparty between the defendant and the claimant shipowner, Gardano. The bill named the Greek Ministry as consignee. The shipowner argued, relying on the . .
Cited – Kum and Another v Wah Tat Bank Ltd HL 1971
‘Negotiable’, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a . .
Cited – The Captain Gregos CA 1990
A cargo of oil had been carried under bills of lading incorporating the Hague-Visby Rules. There was an alleged theft of part of the cargo, and the question was whether article III rule 6 of the rules barred the claim on the ground that it had not . .
Cited – The Sormovskiy 3068 QBD 1994
It makes commercial sense to have a simple rule that in the absence of an express term of the contract the master must only deliver the cargo to the holder of the bill of lading who presents it to him. In that way both the shipowners and the persons . .
Cited – The Stettin 1889
A bill of lading was issued by the owners of a German flag vessel and covered carriage from London to Stettin. It was made out to a named consignee ‘or to his or their assigns’ who was the agent for Julius Manasse in Breslau, and was instructed by . .
Distinguished – The Chitral 2000
The PNSC bill of lading named the consignee of goods carried on the defendant’s vessel. Goods were damaged during the voyage. The bill of lading was otherwise in conventional form, but the box in which the consignee was to be named said ‘If order . .
Appealed to – J I MacWilliam Co Inc v Mediterranean Shipping Co Sa ComC 17-Apr-2002
A straight bill of lading did not fall within section 1(4) of the 1971 Act and article I (b) of the Rules. . .
Appeal from – 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 – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.181376
An undertaking to submit to a court ‘of competent jurisdiction’ given in consideration of a cargo not being arrested, by a protection and indemnity club , included a reference to the Admiralty Court. Under the Act. Under the Convention the phrase could not mean a court which was already seised of the matter, since jurisdiction was given by the arrest of the ship. The undertaking envisaged that jurisdiction would be established by the acceptance of service.
Lord Phillips of Worth Matravers MR, Sedley, Longmore LJJ
Times 19-Mar-2003, [2003] EWCA Civ 378
Brussels Convention 1952 7, Supreme Court Act 1981 20 21
England and Wales
Updated: 07 June 2022; Ref: scu.181147
Tomlinson J
[2003] EWHC 550 (Comm)
England and Wales
See Also – Tavoulareas v Tsavliris CA 5-Feb-2004
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . .
See Also – Tavoulareas v Tsavliris and Another ComC 12-Oct-2005
. .
See Also – Tavoulareas v Alexander G Tsavliris and Sons Maritime Company ComC 24-Nov-2005
. .
See Also – Tavoulareas v Tsavliris and others ComC 9-Mar-2006
Formal recognition of judgment from Greek court. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.180448
Shipping – ASBATANKVOY clause
[2002] EWHC 2812 (Comm)
Updated: 07 June 2022; Ref: scu.178941
[2002] EWHC 1423 (Admlty)
England and Wales
Updated: 07 June 2022; Ref: scu.178855
The claimant sought damages after his car was involved in an accident when a wheel struck a part of a tramway standing proud of the road surface. The defendant argued that they were excused liability by the 1988 Act, incorporating the effects of the 1870 Act.
Held: The 1988 Act did not provide a full statement of the defendant’s liability so as to exclude their liability under the 1980 Act. The standard of maintenance was defined by reference to safety. A small difference may be safe, but the rail stood sufficiently proud of the roadway to lift the tyre from the roadway and break its grip. The 1988 Act shifted responsibility to the tramway operator within the initial 12 months of operation.
Pill, Sedley, Hale LJJ
Times 24-Jan-2003, [2003] EWCA Civ 1, [2004] QB 653, [2003] BLGR 389, [2003] 2 WLR 848
Tramways Act 1870 25 28, South Yorkshire Light Rail Transit Act 1988, Highways Act 1980 41
England and Wales
Cited – Dublin United Tramways Co Ltd v Martin Fitzgerald HL 1903
The plaintiff sued when his horse slipped on tramlines in the road and fell. Stone setts or paving between the rails of a tramway in Grafton Street, Dublin, had become slippery owing to the grit or roughness of setts being worn away. In that state, . .
Cited – Simon v Islington Borough Council CA 1943
A cyclist was killed because of the dangerous condition of an abandoned tramway. A rail and the adjoining stone setts were not level with each other. The London Passenger Transport Board had given the highway authority the notice required by statute . .
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 . .
See Also – Roe v Sheffield City Council, South Yorkshire Light Rail Ltd, South Yorkshire Supertram Ltd, Balfour Beatty Power Construction Ltd CA 23-Mar-2004
. .
Cited – Morrison Sports Ltd and Others v Scottish Power SC 28-Jul-2010
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.178774
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that part of the Thames had been extinguished.
Held: The various statutory provisions had not granted to the respondent any power to remove rights of navigation. The 1885 Act did not apply and gave the claimant no assistance. The agreement restricting access had not been in place for twenty years, and had only been of a temporary nature. No legitimate expectation that public rights had been extinguished could be established, because the respondent had no statutory power to extinguish rights.
The Hon Mr Justice Lightman
Times 28-Dec-2002, [2002] EWHC 2785 (Ch)
Thames Preservation Act 1885 2 5
England and Wales
Cited – Cory v Bristow HL 1877
The owner of a vessel used for commercial purposes while fixed in position on a long-term basis over moorings on the riverbed could for rating purposes be treated as the occupier of those moorings and the part of the riverbed in which they were . .
Cited – Rex v Lord Grosvenor 1819
An obstruction interfering with navigation on the Thames with a public right of navigation was unlawful even if erected with the Conservators’ consent unless the Conservators were granted statutory power to give such consent. . .
Cited – Vooght v Winch 1819
Public rights of Navigation could not be extinguished by physical obstruction. . .
Cited – Rex v Montague 1825
The Commissioners of Sewers might have the power to extinguish public rights of navigation if they found that it would be for the benefit of the whole level. . .
Cited – Rex v Russell 1827
‘The right of the public on navigable rivers is not confined to the passage: trade and commerce are the chief objects and the right of passage is chiefly subservient to those ends.’ . .
Cited – Regina v The Commissioners of the Thames and Isis 1837
In 1833 Lord Boston complained to the Commissioners about the construction of the Cut above Hedsor Water on the Thames. The Commissioners did not act on the complaint. Accordingly Lord Boston claimed compensation from the Commissioners for the loss . .
Cited – Rex v Betts 1850
A navigation authority’s powers to build obstructions to navigation were confined to situations where they were aids to navigation. . .
Cited – Orr Ewing v Colqhoun 1887
In the case of tidal rivers the public right of way extends over the whole watercourse but in the case of non-tidal rivers the public rights (at least ordinarily) are confined to the channel of the river. . .
Cited – Conservators of the River Thames v Smeed Dean and Co CA 1897
The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by a Navigation Authority and in all likelihood a nuisance. Chitty LJ said: ‘The Conservators are a statutory body brought into . .
Cited – Bourke v Davis 1899
A public right of navigation over a river is ‘similar to a right of highway on land not covered by water.’ Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user. . .
Cited – Simpson v Attorney General HL 1904
Lord Lindley said: ‘the doctrine once a highway always a highway is, I believe, applicable to rivers as to roads’ . .
Appeal from – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.178555
The Honourable Mr Justice Maurice Kay <
[2002] EWHC 2516 (Admn), [2003] JPL 583, [2002] 49 EG 123
Cited – Moseley, Regina (on The Application of) v London Borough of Haringey SC 29-Oct-2014
Consultation requirements
The claimant challenged a decision of the respondent reducing the benefits under the Council Tax Reduction Scheme reducing Council Tax for those in need, saying that the Council’s consultation had been inadequate.
Held: The consultation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.178479
Order – reference for a preliminary ruling: Circuit Court, County of Cork – Ireland.
C-158/01, [2002] EUECJ C-158/01
European
Updated: 06 June 2022; Ref: scu.177471
The court was asked whether article IV rule 2(b) of the Hague-Visby Rules is capable of exempting the carrier from liability to the cargo owner for damage caused by fire if that fire were caused deliberately or barratrously.
[2019] EWCA Civ 388
England and Wales
Updated: 06 June 2022; Ref: scu.634760
There as an agreement to carry a passenger on board a ship from London to the West Indies, the passage-money to be paid in London before the commencement of the voyage. The passenger puts his baggage on board in the Tharnes, meaning himself to embark at Portsmouth The ship is lost in going round to that place. The passage-money cannot be recovered back. Aliter, if the agreement had been to carry the passenger from Portsmouth to the West Indies.
[1815] EngR 894, (1815) 4 Camp 241, (1815) 171 ER 77 (A)
England and Wales
Updated: 06 June 2022; Ref: scu.336704
David Steel J
[2002] EWHC 762 (Commercial), [2002] 2 Lloyds Law Rep 81
England and Wales
Appealed to – Welex Ag v Rosa Maritime Ltd ComC 2002
The court granted the respondent an anti-suit injunction to restrain them issuing proceedings in Poland on closely related issues. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.175489
A marine insurance contract was entered into for goods to be transported between two ports. A side note provided that cover was to start from the time the goods left the warehouse. The Act provided that the insurance was void from the time such a cargo was diverted from the route agreed.
Held: The variation of the insurance contract endorsement related to a voyage rather than a time policy. Therefore, Act still applied, and the insurer was discharged at the moment the deviation occurred.
Lords Justice Potter and Keene and Mr Justice Sumner
Gazette 03-Oct-2002, Times 17-Oct-2002, [2002] EWCA Civ 1132, [2003] 2 Lloyd’s Rep 327
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.175228
Potter, Arden LJJ, Sir Denis Henry
[2002] EWCA Civ 1068, [2002] 2 Lloyd’s Rep 487, [2002] 2 All ER (Comm) 896
England and Wales
Appeal from – Glencore Grain Ltd v Flacker Shipping Ltd QBD 25-Jan-2001
A ship’s captain was, under standard Syncomex contract terms, to arrive in port and then to give notice that the cargo was available for collection. He gave the notice before arriving. The owners’ claim for demurrage failed because it depended upon . .
Cited – ED and F Man Sugar Ltd v Belmont Shipping Ltd ComC 18-Nov-2011
Allegation of serious irregularity in arbitration.
Held: The request was refused: ‘the present case can hardly be said to be an extreme case which justice calls out to be corrected.’.
‘Arbitrators are not barred from asking a party . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.175187
ECJ Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC) No 2408/92 – Imposition of public service obligations on scheduled air services serving a peripheral region – Compatibility with Member States’ power to restrict cabotage until 1 April 1997 – Interpretation of Article 1(e) of Decision 94/698/EC
F. Macken R P
C-181/00, [2002] EUECJ C-181/00
Updated: 06 June 2022; Ref: scu.174368
The Honourable Mr Justice Morland
[2002] EWHC 1415 (QB)
England and Wales
Updated: 06 June 2022; Ref: scu.174343
ECFI Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a competition decision – Conditions for granting – Serious and irreparable damage – Concept – Uncertain and speculative risk – Exclusion – Balance of convenience – (EC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))
The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is for the party seeking suspension of the operation of a decision to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.
Only the existence, at least foreseeable or probable, of third-party undertakings interested in using the Channel Tunnel’ s capacity would be capable of substantiating the risk of serious and irreparable damage alleged by railway undertakings seeking the suspension of operation of the conditions attached to the Commission’ s decision granting exemption under Article 85(3) of the Treaty in so far as those conditions require the applicants to surrender to third parties up to one-quarter of their rights under the usage contract exempted by the Commission. In those circumstances, suspension could be ordered only if the applicants could demonstrate before the judge hearing the application that the surrenders of capacity at issue would immediately make it impossible for them to fulfil their obligations relating to the operation of the tunnel or that they could no longer, if their applications in the main proceedings were to succeed, recover from the third parties the capacity surrendered to them in the meantime. Since they have not adduced evidence of those conditions, the damage to them is too uncertain and speculative to be able to prevail in the assessment of the balance of convenience over the preservation of effective competition and the principle of the freedom to provide services in the rail transport sector which the Commission sought to protect by attaching the abovementioned condition to the exemption.
T-79/95, [1995] EUECJ T-79/95R
Interim measures – SNCF and British Railways v Commission ECFI 22-Oct-1996
Actions for annulment – Pleas in law – Error of fact underlying a decision applying the competition rules – Annulment of the decision – (EC Treaty, Art. 85; Council Regulation No 1017/68, Art. 5)
A decision which applies the competition rules . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 June 2022; Ref: scu.173013
ECJ Competition – Liner conferences – Intermodal transport – Regulation (EEC) No 4056/86 – Scope – Block exemption – Regulation No 1017/68 – Individual exemption – Fine.
T-86/95, [2002] EUECJ T-86/95
European
Updated: 06 June 2022; Ref: scu.173018
ECFI 1. In the case of an agreement between shipping lines on the scheduled transport of containers across the Atlantic between Northern Europe and the United States and on the inland carriage of the containers, the relevant markets directly affected are those in transport services and not that in the export of goods to the United States. The restrictions of competition occur within the common market because it is there that the members of the agreement, including several shipping companies established in the Community, are in competition to sell their services to clients, namely shippers, established in the Community. The fact that certain members of the agreement are not established in the Community does not cast doubt on that conclusion.
2. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between States. In particular, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect.
3. An agreement between shipping companies, including a number established in the Community, which related to the conditions for the sale of maritime and inland transport services to shippers established in various Member States of the Community is capable of affecting trade between Member States for the purposes of Article 85(1) of the Treaty (now Article 81(1) EC).
Furthermore, such an agreement is capable of modifying the pattern of trade in goods transiting through the ports served by the shipping companies which are members of an agreement. As a result, that agreement must be regarded as having affected trade between Member States, over and above the trade consisting of only maritime transport services, since port and auxiliary services linked to the carriage of goods were also affected.
Finally, although more indirectly, the relevant agreement has, or at the very least is capable of having, an effect on the trade in goods between Member States, in so far as the transport prices fixed by the agreement represent a proportion of the end selling price of the goods transported.
4. An agreement can qualify for the exemption provided for in Article 3 of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport only if it is a liner conference agreement.
The existence of a liner conference within the meaning of Regulation No 4056/86 depends on the charging of uniform or common freight rates by its members.
5. Having regard to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. This conclusion applies, a fortiori, to the provisions of Regulation No 4056/86 relating to maritime transport by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised (horizontal agreement having as its object the fixing of prices). It follows that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. The exemption can relate only to the types of agreement which the Council, when Regulation No 4056/86 was adopted, regarded, in the light of experience, as satisfying the conditions of Article 85(3) of the Treaty. Apart from the power enjoyed by the Council, if the need arose, to amend Regulation No 4056/86, the undertakings concerned also always have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent in the block exemption.
6. The definition of liner conference in Article 1(3)(b) of Regulation No 4056/86 was taken word for word from the United Nations Convention on a Code of Conduct for Liner Conferences. That code thus constitutes an important point of reference for the interpretation of the concept of liner conference referred to in Regulation No 4056/86.
7. By its very nature and in the light of its objectives, a liner conference, as defined by the Council for the purposes of qualification for block exemption under Regulation No 4056/86, can be characterised as a collective entity which presents itself as such on the market vis-a-vis both users and competitors.
The conference puts itself forward as an entity on the market since it fixes uniform freight rates for all its members, in the sense that the same price will be charged for the carriage of the same cargo from point A to point B, regardless of which shipowning member of the conference is responsible for carriage.
By contrast, an agreement between carriers providing for a scheme of tariffs which vary according to the members cannot be regarded as a liner conference under Regulation No 4056/86.
8. Liner conferences qualify for a block exemption because of their stabilising effect. That stability is best ensured if all the members of the conference adopt uniform freight rates rather than if there are several rates according to the members concerned. A uniform level of freight rates within the conference also allows users, account of whose interests is also a requirement for the exemption, to be assured of being able to obtain the transport service at the same price, whichever conference member it approaches. That interest of the shippers in having access to a reference rate in respect of a particular commodity is appreciably reduced if the members of the conference do not charge one rate, but two or more, in respect of the same product.
That interpretation of the concept of liner conference is not inconsistent with the possibility for a conference member to take independent action. That action is fundamentally different from the system of differentiated prices. The taking of independent action, which enables a conference member, subject to notice, to offer, for a specific product, a lower freight rate than that in the conference tariff, does not create another level of prices which may be generally charged, since that action concerns only a single ad hoc transaction. The stabilising effect of the existence of uniform or common freight rates for all conference members therefore continues in the event of independent action, whereas it is undermined where the conference tariff, which lists all the freight rates applicable, is replaced by a system of rates which vary according to the members.
Furthermore, the possibility of fixing different levels of prices makes it possible to attract into the group shipping lines which, without that flexibility, would remain independent and this situation is likely to lead to the elimination of external competition; by contrast, the obligation to fix uniform freight rates for all conference members is not such as to encourage all operators to join the conference, which guarantees the existence of external competition.
9. In the context of an action for annulment pursuant to Article 173 of the Treaty (now, after amendment, Article 230 EC), the review undertaken by the Court of the complex economic appraisals made by the Commission when it exercises the discretion conferred on it by Article 85(3) of the Treaty (now Article 81(3) EC), with regard to each of the four conditions laid down in that provision, is necessarily limited to verifying whether the rules on procedure and on the giving of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.
10. Although stability in the maritime transport sector, to the extent that it contributes to assuring shippers of reliable services, may be an advantage for the purposes of the first condition of Article 85(3) of the Treaty (now Article 81(3) EC), the Commission cannot be obliged to grant individual exemption to every agreement between shipping lines which, in the opinion of the parties, may contribute to such stability. Within the limits imposed by Regulation No 4056/86, the Commission retains its discretion in applying Article 85(3) of the Treaty.
11. The four conditions for granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC) are cumulative and therefore non-fulfilment of only one of those conditions will render it necessary to refuse the exemption.
12. In assessing an agreement with a view to granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC), the market to be taken into consideration comprises the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products.
In the case of an agreement between shipping lines for the scheduled transport of containers across the Atlantic between Northern Europe and the United States the relevant market is that for containerised liner shipping. The fact that other modes of transport, whether maritime or air, may engage in marginal competition on the market in containerised liner shipping services in respect of a limited number of products, does not mean that, for that reason, they can be regarded as forming part of the same market.
13. The possibility of eliminating competition in respect of a substantial part of the services in question within the meaning of Article 85(3) of the Treaty (now Article 81(3) EC), must be assessed as a whole, taking into account in particular the specific characteristics of the relevant market, the restrictions of competition brought about by the agreement, the market shares of the parties to that agreement and the extent and intensity of external competition, both actual and potential. In the context of this comprehensive approach, those different elements are closely interlinked or may balance each other out. Thus, the greater the restrictions of internal competition between the parties, the more necessary it is for external competition to be keen and substantial if the agreement is to qualify for exemption. Similarly, the larger the market shares of the parties to the agreement, the stronger the potential competition must be.
14. In order to determine whether an agreement affords its signatory parties the possibility, in respect of a substantial part of the products in question, of eliminating competition within the meaning of Article 85(3)(b) of the Treaty (now Article 81(3)(b) EC), the Commission cannot, in principle, rely merely on the fact that the agreement in question eliminates competition between those parties and that they account for a substantial part of the relevant market. First, the prohibition on eliminating competition is a narrower concept than that of the existence or acquisition of a dominant position, so that an agreement could be regarded as not eliminating competition within the meaning of Article 85(3)(b) of the Treaty, and therefore qualify for exemption, even if it established a dominant position for the benefit of its members. Second, potential competition must be taken into consideration before concluding that an agreement eliminates competition for the purposes of Article 85(3) of the Treaty.
Taking into account and analysing external competition, both actual and potential, is all the more necessary where it is a question of examining whether an agreement between shipping companies fixing maritime transport rates qualifies for individual exemption under Article 12 of Regulation No 4056/86.
15. Interveners must, under Article 116(3) of the Rules of Procedure of the Court of First Instance, accept the case as they find it at the time of their intervention and their submissions in an application to intervene are, under the fourth paragraph of Article 37 of the Statute of the Court of Justice, limited to supporting the submissions of one of the main parties, an intervener is not entitled to raise a plea in law that was not raised by the applicant.
16. In a decision finding that the provisions of an agreement between shipping lines fixing the rates and conditions of maritime transport infringe the Treaty’s competition rules, an order compelling the undertakings concerned to inform customers with whom they have concluded service contracts and other contractual relations in the context of that agreement that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith, which was not obviously necessary and does not correspond to an established line of Commission decisions, requires that institution expressly to set out its reasoning.
Even if that order may be regarded as necessary for re-establishing compliance with the law and as coming within the limits of the Commission’s power to order the undertakings concerned, in accordance with Article 11 of Regulations No 1017/68 and No 4056/86, to bring such infringement to an end, the statement of objections should in any event have set out, even briefly, but in sufficiently clear terms, the measures which the Commission intended to take in order to bring an end to the infringements and should have given the applicants all the information necessary in order to enable them properly to defend themselves before the Commission adopted a final decision on that point. That conclusion is all the more necessary where the individual service contracts account for a substantial part of the turnover of the undertakings concerned and the obligation to renegotiate with customers could thus have significant consequences for those undertakings, and could even amount to a penalty more serious than a fine.
K. Lenaerts, P
T-395/94, [2002] EUECJ T-395/94
European
Updated: 06 June 2022; Ref: scu.172976
ECFI 1 Far from enjoying the same rights to a fair hearing as those which individuals against whom a procedure has been instituted are recognised as having, concerned parties, within the meaning of Article 93(2) of the Treaty, have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case.
There may be two reasons for restricting the extent of the right to participate and to be informed which such parties enjoy. First, where a Member State notifies the Commission of planned aid and submits supporting documentation, and the relevant Commission departments subsequently hold a series of meetings with officials from the Member State in question, the amount of information in the Commission’s possession may already be relatively extensive, leaving outstanding only a small number of doubts which information supplied by the parties concerned may dispel. In so far as they relate to the details of the planned aid, to the economic, financial and competitive position of the recipient undertaking and to its internal operations, the discussions between the Member State and the Commission will inevitably be more thorough than those conducted with the parties concerned. While providing such parties with general information on the essentials of the planned aid, therefore, the Commission may confine itself to concentrating its communication in the Official Journal on those aspects of the planned aid concerning which it still harbours doubts. Second, the Commission is required, under Article 214 of the Treaty, not to disclose to interested parties information of the kind covered by the obligation of professional secrecy, in particular information relating to the internal operations of the recipient undertaking.
The limited nature of the rights of concerned parties to participate and to be informed, in so far as they relate solely to the administrative procedure, is not at variance with the Commission’s duty under Article 190 of the Treaty to provide, in its final decision authorising planned aid, sufficient reasons which must address all the essential complaints which parties directly and individually concerned by that decision have made either on their own initiative or as a result of information supplied by the Commission. Thus, even on the assumption that the Commission may validly prefer to use other sources of information and thereby reduce the significance of the participation of concerned parties, it is not thereby released from its obligation to include an adequate statement of reasons in its decision.
2 There is nothing in the Treaty or in Community legislation requiring decisions on State aid adopted at the conclusion of the procedure under Article 93(2) of the Treaty to comply with a fixed period. On the assumption that the Commission acted with excessive haste and did not give itself sufficient time to examine proposed aid, such conduct could not, by itself, justify annulment of the decision authorising that aid. To entail annulment, such conduct would have to involve a breach of specific rules governing procedure, the duty to provide reasons or the internal legality of the decision in question.
Nor is there anything in the Treaty or in Community legislation which requires the Commission to seek assistance from external experts in order to draft a decision relating to State aid.
3 In view of the fact that interveners must, under Article 116(3) of the Rules of Procedure of the Court of First Instance, accept the case as they find it at the time of their intervention and that their submissions in an application to intervene are, under the fourth paragraph of Article 37 of the EC Statute of the Court of Justice, limited to supporting the submissions of one of the main parties, an intervener is not entitled to raise a plea in law that was not raised by the applicant.
4 The text of Article 93 of the Treaty does not require the Commission to forward to the other Member States observations which it has received from the Government of the State seeking authorisation to grant aid. On the contrary, it follows from the third subparagraph of Article 93(2) of the Treaty that the other Member States may be involved in a specific case of aid only where that case has, at the request of the State concerned, been submitted to the Council.
5 The Commission enjoys a broad discretion in the application of Article 92(3) of the Treaty. Since that discretion involves complex economic and social appraisals, the Court must, in reviewing a decision adopted in that context, confine itself to verifying whether the Commission complied with the rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error in the assessment of those facts or misuse of powers.
In that regard, in the context of an action for annulment under Article 173 of the Treaty, the legality of a Community measure falls to be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted and cannot depend on retrospective considerations as to its efficacy. In particular, the complex assessments made by the Commission must be examined solely on the basis of the information available to the Commission at the time when those assessments were made.
6 The statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the contested measure in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Community judicature to exercise its supervisory jurisdiction. The question whether the statement of the grounds for a decision meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question. While the Commission, in the statement of reasons for a decision, is not required to discuss all the issues of fact and law raised by interested parties during the administrative procedure, it must none the less take account of all the circumstances and all the relevant factors of the case in question.
In regard to a decision authorising State aid, the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations, are to be regarded as concerned parties within the meaning of Article 93(2) of the Treaty and considered, in that capacity, to be directly and individually concerned by that decision.
Since the requirement of a statement of reasons must be assessed on the basis, in particular, of the interest which those to whom the measure is addressed or other parties to whom it is of direct and individual concern, within the meaning of Article 173 of the Treaty, may have in receiving explanations, it cannot be determined solely on the basis of the interest which the Member State to which that decision is addressed may have in obtaining information. Where a Member State has obtained from the Commission that which it was seeking, namely authorisation for its planned aid, its interest in having a reasoned decision addressed to it may be greatly reduced, in contrast to that of competitors of the beneficiary of the aid, in particular where it has received sufficient information during the negotiations with the Commission through, inter alia, exchange of correspondence with that institution before the authorising decision was taken.
7 Since, according to well-established case-law of the Court of Justice and a consistent administrative practice on the part of the Commission, investment in normal modernisation intended to maintain an undertaking’s competitiveness should be carried out using the undertaking’s own financial resources, and not through State aid, and investment intended for the renovation and technical modernisation of a production line, which has to be carried out periodically, cannot be regarded as designed to facilitate the development of certain economic activities within the meaning of Article 92(3)(c) of the Treaty, the Commission must, when replying to the observations of concerned parties regarding specific planned aid during the administrative procedure and relating to that case-law and administrative practice, provide precise indications as to whether the criteria established by that case-law and practice can be regarded as having been satisfied or whether it is appropriate, for specific reasons, to derogate from them.
8 The operative part and the statement of reasons of a decision, which must be reasoned under Article 190 of the Treaty, constitute an indivisible whole, with the result that it is for the college of Commissioners alone, in accordance with the principle of collegiate responsibility, to adopt both the one and the other, any alteration to the statement of reasons going beyond simple corrections of spelling or grammar being the exclusive province of that college.
9 In regard to State aid, while there can be no grounds for denying that the Commission is entitled to compare the restructuring measures envisaged by the recipient undertaking with those taken by other undertakings operating in the same economic sector, the fact remains that the restructuring of an undertaking must be targeted at its own specific problems and that the experiences of other undertakings, in different economic and political contexts and at other times, may be irrelevant.
10 The Commission was entitled to form the view that genuine restructuring of one of the three largest European airline companies, which was the recipient of State aid, would have the effect of facilitating the economic development of the European civil aviation sector.
11 Information as to the situation on the markets in question, in particular the position of the undertaking benefiting from the aid and of competing undertakings, constitutes an essential element in the reasoning of a decision relating to the compatibility of planned aid with the common market within the meaning of Article 92 of the Treaty, both where the decision has been taken pursuant to Article 92(1) and where it has been taken pursuant to Article 92(3)(c) of the Treaty and Article 61(3)(c) of the Agreement establishing the European Economic Area in regard to the question whether the aid adversely affects trading conditions to an extent contrary to the common interest.
12 Economic assessments pursuant to Article 92(3)(c) of the Treaty, in respect of which the Commission enjoys a broad discretion, must be made in a Community context. The Commission is for that reason under an obligation to examine the impact of the aid on competition and intra-Community trade.
In order to determine whether aid adversely affects trading conditions to an extent contrary to the common interest, it is necessary to consider, in particular, whether there is an imbalance between the charges imposed on the undertakings concerned on the one hand and the benefits derived from the aid in question on the other. The Commission is under an obligation, when examining the impact of State aid, to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition.
The Commission may in principle make a decision authorising aid under Article 92(3)(c) of the Treaty subject to conditions for ensuring that authorised aid does not alter trading conditions to an extent contrary to the general interest.
The legal and practical utility of such conditions of authorisation lies in the fact that, if the recipient undertaking were to fail to observe them, it would be for the Member State concerned to ensure proper implementation of the authorisation decision and for the Commission to assess whether it was appropriate to demand that the aid be repaid. If the State were not to comply with the conditions imposed by the Commission in a decision approving aid, the Commission would be entitled, under the second subparagraph of Article 93(2) of the Treaty, to refer the matter directly to the Court of Justice by way of derogation from Articles 169 and 170 of the Treaty.
Having regard to the way in which the conditions underlying a decision to authorise aid thus operate, the mere assertion that one of those conditions will not be complied with cannot cast doubt on the legality of that decision. In general, the legality of a Community act cannot depend on the possible existence of opportunities for circumvention or on retrospective considerations as to its efficacy.
13 Since the purpose of Article 155 of the Treaty is to provide a general definition of the Commission’s powers, it cannot be argued that each time the Commission infringes a specific Treaty provision such infringement involves an infringement of the general provision of Article 155 of the Treaty.
Bellamy P
T-371/94, [1998] EUECJ T-371/94
Updated: 06 June 2022; Ref: scu.172964
Lord Mackay of Drumadoon
[2000] ScotCS 217
Scotland
Updated: 05 June 2022; Ref: scu.169245
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The penalties were substantial, though there existed a system of appeals.
Held: The principle that the punishment must fit the crime was irreconcilable with the notion of a substantial fixed penalty. The system was incompatible with the respondents’ article 6 human rights. As to the rights under the European treaty, not every breach of the Convention affecting cross- border trade and services involved an impermissible restriction on Treaty rights. Here the effects of cross-border trade were at best only tenuously established, and that part of the appeal succeeded. Simon Brown LJ ‘. . . the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility. . . But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.’
Laws LJ dissenting set out the following tests of the deference which the judicial arm of government should show to the other arms of government: (1) greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure; (2) there is more scope for deference ‘where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified’ (per Lord Hope in ex parte Kebilene); (3) greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts; (4) greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts). ‘The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits . . ‘
Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker
Times 26-Feb-2002, [2002] EWCA Civ 158, [2002] 3 WLR 344, [2003] QB 728
Immigration and Asylum Act 1999, European Convention on Human Rights Art 6, EC Treaty 28 49
England and Wales
Appeal from – International Transport Roth GmbH and Others v Secretary of State for the Home Department QBD 5-Dec-2001
The respondent introduced rules imposing fixed and penalties on HGV drivers coming into the UK who were found to have stowaway illegal entrants. The operators sought judicial review.
Held: The penalty was in the character of a criminal . .
Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 June 2022; Ref: scu.167653