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Transport - From: 1970 To: 1979

This page lists 35 cases, and was prepared on 02 April 2018.

 
The Annefield [1971] CLY 10839
1971


Transport

1 Citers


 
Australian Coastal Shipping Commission v Green [1971] 1 QB 456
1971
CA
Lord Denning MR
Contract, Transport
Because time begins to run from the date when a cause of action arises, it is necessary to consider what is the nature of an action for general average contribution.
Lord Denning MR said: "We so rarely have to consider the law of general average that it is as well to remind ourselves of it. It arises when a ship, laden with cargo, is in peril on the sea, such peril indeed that the whole adventure, both ship and cargo, is in danger of being lost. If the master then, for the sake of all, throws overboard some of the cargo, so as to lighten the ship, it is unjust that the owner of the goods so jettisoned should be left to bear all the loss of it himself. He is entitled to a contribution from the shipowner and the other cargo-owners in proportion to their interests: see the exposition by Lord Tenterden quoted by Cresswell J. in Hallett v Wigram (1850) 9 C.B. 580, 607-608 and Burton v English (1883) 12 Q.B.D. 218. Likewise, if the master, for the sake of all, at the height of a storm, cuts away part of the ship's tackle (as in Birkley v Presqrave (1801) 1 East 218) or cuts away a mast (as in Attwood v Sellar & Co. (1880) 5 Q.B.D. 286), or, having sprung a leak, puts into a port of refuge for repairs and spends money on them (as in Svendsen v Wallace Bros. (1885) 10 App. Cas. 404), it is unfair that the loss should fall on the shipowner alone. He is entitled to contribution from the cargo owners for the loss or expenditure to which he has been put. In all such cases the act done by the master is called a 'general average act': and the loss incurred is called a 'general average loss'."
1 Citers


 
Astro Vencedor Compania Naviera SA v Mabanaft GmbH [1971] Lloyd's R 502; [1971] 2 QB 588
1971
CA
Lord Denning MR
Arbitration, Transport
For an arbitration clause in a contract between parties to be used to enforce arbitration of a tortious claim, the tortious claim must arise out of the contractual matters. In this case damages were sought for the wrongful arrest of a ship in consequence of an alleged breach of the contract.
Lord Denning MR said: 'The arrest of the ship was the direct consequence of the charterers' claim for damages against the shipowners. . The arrest was simply the follow-up to that claim. It was so closely connected with it that the rightness or wrongness of the arrest is also within the scope of the arbitration. This is borne out by the practice of the Admiralty Court. There have not been many claims for wrongful arrest recently. But the practice of the Court of Admiralty is to deal with a claim for wrongful arrest at the same time as the claim for which the arrest was made. In The Evangelismos . . the Privy Council said that such procedure is very 'convenient'.'
1 Citers


 
Panamanian Oriental Steamship Corporation v Wright (The Anita) [1971] 1 Loyd's Rep 487
1971


Transport

1 Citers


 
Kum and Another v Wah Tat Bank Ltd [1971] AC 439; [1971] 1 Lloyd's 439
1971
HL
Lord Devlin
Transport, Contract
"Negotiable", when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a better title than the transferor has got, but it can by endorsement and delivery give as good a title. The bill of lading obtains its symbolic quality from the commercial custom which makes bills of lading "negotiable and transferable" by endorsement and delivery or transmission.
1 Citers


 
Brimnes, the Tenax Steamship Co v Brimnes, Owners of [1973] 1 WLR 386
1973

Brandon J
Transport, Contract

1 Citers


 
Nv Nederlandse Spoorwegen v Minister Van Verkeer En Waterstaat R-36/73; [1973] EUECJ R-36/73
27 Nov 1973
ECJ

European, Transport
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.
[ Bailii ]

 
 Channel Airways Ltd v Manchester Corporation; 1974 - [1974] 1 Lloyd's Rep 456
 
New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon) [1975] AC 154; [1974] UKPC 1; [1974] UKPC 4
25 Feb 1974
PC
Lord Wilberforce
Contract, Transport, Commonwealth, Contract
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the goods while unloading them. Held: (Majority) The board gave effect to the clause by regarding the shipper as having made an offer of a unilateral contract to the stevedores to unload the goods on terms incorporating the exclusion clause. This offer was accepted by the stevedores by commencing work.
Lord Wilberforce said that the bill of lading: " brought into existence a bargain initially unilateral but capable of becoming mutual, between the shipper and the [stevedores], made through the carrier as agent. This became a full contract when the [stevedores] performed services by discharging the goods. The performance of these services for the benefit of the shipper was the consideration for the agreement by the shipper that the [stevedores] should have the benefit of the exemptions and limitations contained in the bill of lading." The exclusion clause was entered into by the carrier as agent for its servants, agents and independent contractors, and therefore "the exemption is designed to cover the whole carriage from loading to discharge, by whomsoever it is performed: the performance attracts the exemption or immunity in favour of whoever the performer turns out to be". Also "In the opinion of their Lordships, to give the appellant the benefit of the exemptions and limitations contained in the bill of lading is to give effect to the clear intentions of a commercial document, and can be given within existing principles. They see no reason to strain the law or the facts in order to defeat these intentions. It should not be overlooked that the effect of denying validity to the clause would be to encourage actions against servants, agents and independent contractors in order to get round exemptions... "
1 Citers

[ Bailii ] - [ Bailii ]
 
Brimnes, the Tenax Steamship Co v Brimnes, Owners of [1974] EWCA Civ 15; [1975] QB 929; [1974] 3 All ER 88
23 May 1974
CA
Edmund Davies LJ, Megaw LJ, Cairns LJ
Transport, Contract
The ship's owners sent a telex to the charterers at 5.45 pm on 2 April 1970 withdrawing the vessel for late payment of the hire charge. The charterers' normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, although it had arrived in the charterers' office at 5.45 pm on 2 April. Held: The charterer's appeal failed. It was deemed received before close of business on the 2nd. A contract may be terminated by one party without the other party being actually aware of the communication of the termination. The contract is terminated at the time when notice of the termination would "in the normal course of business" have come to the other party's attention on its arrival.
Megaw LJ said: "if a notice arrives at the address of the person to be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention."
1 Cites

1 Citers

[ Bailii ]
 
Ulster-Swift v Taunton Meat Haulage [1975] 2 Lloyd's Rep 502
1975

Donaldson J
Transport
The carrier who contracts with the sender is the first carrier, even if he does not undertake any stage of the carriage himself.
Convention on the Contract for the International Carriage of Goods by Road 31.1
1 Citers



 
 Alexander Ward and Co Ltd v Samyang Navigation Co Ltd; HL 1975 - 1975 SC (HL) 26

 
 Oceanic Freighters Corporation v MV Libyaville Reederei und Schiffahrts GmbH (The Libyaville); QBD 1975 - [1975] 1 Lloyds Rep 537
 
The Ciechocinek [1976] 1 Lloyds Rep 489
1976
CA
Lord Denning MR
Transport

Hague-Visby Rules A2
1 Cites

1 Citers



 
 Evans and Son (Portsmouth) Ltd v Andrea Merzario Ltd; CA 1976 - [1976] 1 WLR 1078; [1976] 2 All ER 930

 
 Wills Trustees v Cairngorm Canoeing and Sailing School; HL 1976 - [1976] SC (HL) 30
 
Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529
9 Dec 1976

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Commonwealth, Damages, Negligence, Transport
Austlii (High Court of Australia) Negligence - Duty of care - Foreseeability of harm - Economic loss not consequential upon damage to person or property - Damage to property of one person - Economic loss suffered by person as a result - Pipeline carrying oil to plaintiff's depot - Damaged by defendant's negligence - Supply interrupted - Pipeline and depot owned by different persons - Expense incurred by plaintiff in arranging alternative means of delivery - Whether recoverable - Remoteness of loss or damage.
Shipping and Navigation - Action in rem - Action against ship - Negligence - Master not sued as defendant - Appearance entered by master - No proprietary interest in ship - Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use. Held. The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to "a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions".
1 Citers

[ Austlii ]
 
The Myrto [1977] 2 Lloyd's Rep 243
1977
ChD
Brandon J
Transport
A ship had been charged. A third party sought to arrest the ship for a debt. Held: "Where the owner makes a contract with a third party for the employment of the ship, of such a kind and made or performable in such circumstances, that the security of the mortgagee is not impaired, and the owner is both willing and able to perform such contract, the mortgagee is not entitled, by exercising his rights under the mortgage, whether by taking possession, or selling, or arresting the ship in a mortgage action in rem, to interfere with the performance of such contact."
1 Citers


 
Albacruz (Cargo Owners) v Albazero 'The Albazero' [1977] AC 774
1977
HL
Lord Brandon, Lord Diplock
Transport, Contract
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for breach of contract where he himself has suffered no loss by reason of the breach, there is an exception applicable to contracts of carriage: "that the consignor may recover substantial damages against the shipowner if there is privity of contract between him and the carrier for the carriage of goods; although, if the goods are not his property or at his risk, he will be accountable to the true owner for the proceeds of his judgment."
Lord Diplock rationalised the rule in Lambert to fit into the pattern of English law by treating it: "as an application of the principle, accepted also in relation to policies of insurance upon goods, that in a commercial contract concerning goods where it is in the contemplation of the parties that the proprietary interests in the goods may be transferred from one owner to another after the contract has been entered into and before the breach which causes loss or damage to the goods, an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the goods before they are lost or damaged, and is entitled to recover by way of damages for breach of contract the actual loss sustained by those for whose benefit the contract is entered into."
He explained the common law approach underlying section 32 in terms of bailment: "The question who stood in relation of bailor to carrier and so was entitled to sue him for the full value of the goods lost or the full amount of the damage could only arise where the consignor and consignee were different persons. In such a case the presumption was that the bailor was the person named as consignee and that in delivering possession of the goods to the carrier the consignor was acting and purporting to act as agent only for a designated principal - the consignee."
Sale of Goods Act 1979 32
1 Cites

1 Citers


 
Aries Tanker Corp v Total Transport Ltd; The Aries [1977] 1 WLR 185; [1977] 1 All ER 398
1977
HL
Lord Wilberforce, Lord Simon of Glaisdale
Transport, Contract
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 carriage, for there is no set off against freight. The purpose of providing for discharge of claims under the rules after 12 months meets an obvious commercial need, namely to allow shipowners after that period to clear their books. The underlying cause of action was extinguished and could not be revived.
Lord Wilberforce said: "The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim (cf. article 29 of the Warsaw Convention 1929) not one which, as most English statutes of limitation (e.g. the Limitation Act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence." and
"One thing is certainly clear about the doctrine of equitable set-off – complicated though it may have become from its involvement with procedural matters – namely, that for it to apply, there must be some equity, some ground for equitable intervention, other than the mere existence of a cross-claim (see Rawson v. Samuel (1839) Cr. & Ph. 161, 178 per Lord Cottenham L.C., Best v. Hill (1872) L.R. 8 C.P. 10, 15, and the modern case of Hanak v. Green But in this case counsel could not suggest, and I cannot detect, any such equity sufficient to operate the mechanism, so as, in effect, to over-ride a clear rule of the common law on the basis of which the parties contracted."
Hague Visby Rules
1 Cites

1 Citers


 
The Arawa [1977] 2 Lloyd's Rep 416
1977

Brandon J
Transport, Contract

Hague-Visby Rules III r2
1 Cites

1 Citers


 
Ulster-Swift v Taunton Meat Haulage [1977] 1 Lloyd's Rep 346; [1997] 1 WLR 625
1977
CA

Transport, European
A carrier who contracts with the sender is the first carrier, even if he does not undertake any stage of the carriage himself.
The court noted the sometimes grat difficulty in finding consistent interpretations of European Law
Convention on the Contract for the International Carriage of Goods by Road 31.1
1 Cites

1 Citers


 
The Johnny [1977] 2 LLR 1
1977


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


 
The Mareva AS [1977] 1 Lloyd's Rep 368
1977

Kerr J
Transport
The wording "average accident" in the policy: "merely means an accident which causes damage."
1 Citers



 
 The Polyglory; 1977 - [1977] 2 Lloyd's Rep 353
 
Marcel Derycke R-65/76; [1977] EUECJ R-65/76; C-65/76
25 Jan 1977
ECJ

Transport
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.
[ Bailii ]
 
Higginbotham v Mobil Oil Corporation Long [1977] USCA5 438; [1977] 545 F 2d 422
7 Mar 1977

d'Auvergne J
International, Negligence, Transport
(United States Court of Appeals, Fifth Circuit) The court considered the application of the doctrine of res ipsa loquitur in an action for damages after a helicopter crash where there was no clear explanation for the crash. Held: d'Auvergne J said: "Major improvements in design and manufacturing technology, in pilot training and in ground control, communications, and navigational aids, among other things, have combined to give air travel an estimable safety record . . Logic, experience and precedent compel us to reject the argument that airplane crashes ordinarily occur in the absence of default by someone connected with the design, manufacture, or operation of the craft".
1 Citers

[ Worldlii ]
 
Opinion Given Pursuant To Article 228(1) Of The EEC Treaty. OP-1/76; [1977] EUECJ OP-1/76
26 Apr 1977
ECJ

European, Transport
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.
[ Bailii ]
 
Auditeur Du Travail v Bernard Dufour, Sa Creyfs Interim And Sa Creyfs Industrial R-76/77; [1977] EUECJ R-76/77
15 Dec 1977
ECJ

European, Transport
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.
[ Bailii ]
 
Corbyn v Saunders [1978] 1 WLR 400
1978

Cummin-Bruce J, Woolf LJ
Crime, Transport
The defendant appealed a conviction for fare evasion, saying that it had been his intention to pay at the end of his journey. Held. The section references to "dishonestly" and the specific intention "to avoid payment" were not two separate elements in the mens rea of the offence. Woolf LJ said: "It is clear from the first clause of section 5(3)(a) that the traveller is not to travel on the railway without paying the fare for the intended journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, ie, payment of the proper fare before he begins his journey."
Regulation of Railways Act 1889 5(3)


 
 Haydon v Kent County Council; CA 1978 - [1978] QB 343; [1978] 2 All ER 97
 
James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141
1978
HL
Lord Wilberforce, Lord Salmon, Lord Dilhorne
Litigation Practice, Transport
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of 30,000 pounds became payable. The plaintiffs claimed to recover the value including the duty, under Article 23.2 of the CMR. Held: The liability to excise duty constituted 'other charges' under Article 23.4. The English text of the convention was incorporated through a schedule. A parallel Fench text had equal authenticity. The process of statutory interpretation required the court directly to interpret the English text of the convention while recognising that another authentic text existed. The court could interpret the statute on broad principles of general acceptation, assisted if need be by reference to the French text, without the need for a preliminary test of ambiguity.
Lord Wilberforce said:"I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo, Mango and Co Ltd [1932] AC 328, per Lord Macmillan, at p 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v Bradbeer [1975] 1 WLR 1204, 1206. There is no need to impose a preliminary test of ambiguity."
Customs and Excise Act 1952 85
1 Cites

1 Citers


 
Fritz Schumalla C-97/78
28 Nov 1978
ECJ

European, Transport
Europa In giving the Council the task of adopting a common transport policy within the meaning of article 74, the Treaty confers wide legislative powers upon it as regards the adoption of appropriate common rules. Regulation no 543/69 of the Council, adopted under article 75 of the treaty and referring mainly to the social sphere, is merely a partial implementation of such a policy. The Council did not exceed its powers by regulating, by this measure, matters which concern the social protection of the driver and road safety in so far as they are not interlinked.

 
China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama (The Mihalios Xilas) [1979] 1 WLR 1018
1979
HL
Scarman L, Lord Salmon
Equity, Contract, Transport
A hire clause was in bespoke terms providing for withdrawal "in default of payment". The payment of hire for the final instalment was deficient because, as the umpire held, the charterers' deductions for the length of the final voyage and bunkers on board at redelivery were unreasonable. There was no dispute that there was a default in payment of hire and the argument was addressed to whether owners had waived the right to withdraw in reliance on the withdrawal clause. Held: The House considered the doctrines of election between different courses of action, and affirmation of a contract.
Lord Salmon criticised said: "My Lords, it would seem that there are some members of the Court of Appeal who do not approve of the Baltime form of charter and other forms of charter such as the New York Produce Exchange and the Shelltime forms which closely resemble it. These forms of charter are undoubtedly very strict in relation to the due payment of hire: their meaning, however, is perfectly clear and it is not permissible to put a construction upon them which would depart from that meaning. Unless the full amount of hire is paid by its due date the owners have the undoubted right to withdraw their vessel providing they do so within a reasonable time of the charterers' default. The only exception is when the parties by their course of conduct (a) have as in the present case accepted that disbursements made by the charterers in respect of the owners' liabilities may be deducted from the hire subject to vouchers being produced, or e.g., (b) have accepted as in Tankexpress A/S v. Compagnie Financiere Belge des Petroles S.A. [1949] A.C. 76 that the amount of hire posted two days before it falls due shall be deemed to have been paid in time. Otherwise, unless the full hire is paid by the time it falls due the charterers are in default and the vessel may be withdrawn. On the appeal to your Lordships' House in The Laconia [1977] A.C. 850 I ventured to point out that the law relating to the owners' rights under a Baltime form of charter to withdraw their vessel should the charterers fail to pay the hire in time had been clearly stated by your Lordships' House in the Tankexpress case; but that a great deal of doubt on the subject had since been generated by the Court of Appeal in The Georgios C [1971] 1 Q.B. 488 and had troubled the waters ever since. I expressed the hope that those doubts might finally be dispelled by your Lordships' reversal of the Court of Appeal's decision in The Laconia and overruling its decision in The Georgios C. These doubts were, however, temporarily revivified by the decision of the Court of Appeal in the present case but will now, I think, permanently be laid to rest by your Lordships' decision allowing this appeal; Certainty of meaning is of primary importance in all commercial transactions. Commercial contracts all over the world, having nothing to do with the United Kingdom, have for generations provided that any dispute arising under the contract shall be decided in the English commercial court or by arbitration in London according to English law. This is because of the confidence which exists throughout the commercial world in the administration of English justice. I fear that this confidence will hardly be strengthened should there be any further decisions in the Court of Appeal similar to those in The Georgios C, The Laconia and the instant case."
1 Citers


 
Iraqi Ministry of Defence v Arcepey Shipping "The Angel Bell" [1979] 2 Lloyd's Rep 491; [1981] 1 QB 65
1979

Donaldson J, Robert Goff J
Transport, Litigation Practice
Creditors of the defendant who was subject to a Mareva injunction applied to the court to authorise the repayment of a loan out of monies otherwise subject to the order. Held: The purpose of a freezing order is to avoid dissipation of a defendant's assets in order to avoid a judgment, it is only bona fide debts in the ordinary course of business of a defendant whose assets are frozen that will be permitted to be paid out, including debts which are not themselves enforceable.
Robert Goff J said: "Mr. Hobhouse submitted that the purpose of the Mareva jurisdiction was to freeze a foreign defendant's assets in this country to ensure that there is a fund available in this country from which the plaintiff will be able to satisfy a judgment. In support of this he relied in particular on the form of the order usually made in these cases which restrains the defendant from dealing with his assets within the jurisdiction and from removing his assets from the jurisdiction. I do not, however, see that the usual form of the order as such assists his argument. As was made plain by Mustill J. in the Third Chandris case, the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction."
and "All the interveners are asking is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do."
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