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Transport - From: 1980 To: 1984

This page lists 25 cases, and was prepared on 02 April 2018.


 
 Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star; PC 1980 - [1981] 1 WLR 138; [1980] 3 All ER 257

 
 Fothergill v Monarch Airlines Ltd; HL 10-Jul-1980 - [1980] 2 All ER 696; [1980] 3 WLR 209; [1981] AC 251; [1980] UKHL 6

 
 Britain v ABC Cabs (Camberley) Ltd; QBD 1981 - [1981] RTR 395

 
 The Alfred Trigon; 1981 - [1981] 2 Lloyd's Rep 333
 
Cummins Engine Co Ltd v Davis Freight Forwarding (Hull) Ltd [1981] 1 WLR 1363
1981
CA
Brandon, O'Connor LJJ
Transport
Cummins as consignor had contracted with Davis, another English company, for the carriage of engines from England to Amsterdam. Davis instructed Charterway to undertake the leg from Rotterdam to Amsterdam, and Charterway in turn asked Graaf, who asked Boers to do this. Charterway, Graaf and Boers were all Dutch firms and all successive carriers under CMR. Cummins issued a writ in England against all four, but served only Davis. Davis issued third party proceedings to join and seek recourse from Charterway, Graaf and Boers, who applied to have the third party proceedings set aside on the basis that under article 39.2 any recourse proceedings against them could only be in Holland. Held: The application Succeeded.
Brandon LJ made the following general statement regarding jurisdiction in the main proceedings: "It is clear from the provisions of CMR contained in Chapters V and VI that it contemplates two kinds of legal proceedings arising out of a contract of carriage. The first kind of legal proceedings which it contemplates are actions brought by a sender or consignee of goods against one or more carriers. Where successive carriers are involved, the effect of article 31, paragraph 1, combined with article 34, is that the plaintiff can bring a single action against one, more than one, or all the carriers concerned. Article 31, paragraph 1, further requires him to bring his action in certain courts only. These courts are, first, any court of a contracting state which has been agreed between the parties; secondly, the courts of the country where any of the carriers sued is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made; and, thirdly, the courts of the place where the goods were taken over for the carriage or the place where they were to be delivered.
It is on the basis of these provisions that, in the present case, Cummins issued a writ against four parties, Davis, Charterway, Graaf and Boers, although they have only served such writ on Davis."
O'Connor LJ described the scheme of the CMR: "It will be seen that the scheme of the Convention, starting in article 31, is that normally, unless the parties otherwise agree, any legal proceedings are to be originated in the jurisdiction of 'the defendant' (article 31, paragraph 1(a)), and I am content, under the ordinary rules of interpretation, to read 'defendant' for 'defendants'. The only alternative there given is the place where the goods were taken over or the place designated for delivery. The place where the goods were taken over by the carrier, in my judgment, refers to the place where the contract of carriage commenced (see article 1 of the Convention) and cannot be repeated down the line where successive carriers have participated in the carriage at various stages. That in the present case was Scotland and the place of delivery was Holland. Therefore, Cummins were limited to bringing the action, as far as the jurisdiction of the defendant was concerned, either in England (Davis) or in Holland the other three."
Convention on the Contract for the International Carriage of Goods by Road 31.1 56
1 Citers



 
 The Filikos; 1981 - [1981] 2 Lloyd's Rep 555

 
 Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd; HL 26-Nov-1981 - [1983] 1 WLR 964; [1981] UKHL 12; [1983] 1 All ER 101; 1982 SLT 377
 
Parker v British Airways Board [1982] QB 1004; [1982] 2 WLR 503; [1982] 1 All ER 834
1982
CA
Donaldson LJ
Transport, Torts - Other
The a finder of a gold bracelet in an airport lounge acquired rights of possession over the bracelet as against the airport authority who occupied the lounge but who did not intend to exert control over objects found in the lounge.
Donaldson LJ set out the rights and obligations of a finder: "1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control.
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing.
3. Subject to the foregoing and to point 4 below, a finder of a 330 chattel, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.
4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency and not wholly incidental or collaterally there to and he takes it into his care and control does so on behalf of his employer or principal who acquires a finder's rights to the exclusion of those of the actual finder.
5. A person having a finder's rights has an obligation to take such measures as in all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile."
1 Citers



 
 Tropwood AG of Zug v Jade Enterprises Ltd (The Tropwind); 1982 - [1982] 1 Lloyds Rep 45

 
 China Pacific SA v Food Corpn of India (The Winson); HL 1982 - [1982] AC 939
 
Italmare Shipping v Ocean Tanker Co [1982] 1 WLR 158
1982
CA
Lord Denning MR
Contract, Transport
The clause disputed by the parties provided: "If hire not received when due, Owners to give Charterers 48 hours notice in order to rectify the cause for such delay before exercising their [withdrawal] rights . ." The owners withdrew the vessel after enquiring about whether hire had been paid, but without any prior warning. Application was made for leave to appeal. Held: Lord Denning MR said: "These clauses vary in detail, but for the most part they provide that, before giving a withdrawal notice, the owners must give 48 hours notice. The reason is obvious. It is to give the charterers an opportunity of remedying their breach before they are exposed to forfeiture of their charter. It is comparable to the statutory notice which a landlord has to give to a tenant before enforcing a forfeiture clause.
The word 'final' means just that.


 
 The Span Terza; CA 1982 - [1982] 1 Lloyds Rep 225

 
 Pioneer Shipping Ltd v BTP Tioxide Ltd ('The Nema'); HL 1982 - [1981] 3 WLR 292; [1982] AC 724

 
 Industrie Chimiche v Nea Ninemia Shipping; 1983 - [1983] 1 All ER 686

 
 The Strathnewton; CA 1983 - [1983] 1 Lloyd's Rep 219

 
 Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga; CA 1983 - [1983] 2 Lloyds Rep 171
 
Soya GmbH Mainz Kommanditgesellschaft v White [1983] 1 Lloyd's Rep 122
1983
HL
Lord Diplock
Insurance, Transport
The cargo, soya beans, was insured against heating, sweating and spontaneous combustion risks. It arrived in a heated and deteriorated condition. The insurers denied liability saying that the proximate cause of the damage was inherent vice or nature of the subject matter insured, for which they were not liable under section 55(2)(c); and that the cover only extended to heating, sweating or spontaneous combustion brought about by some external cause. Held: As a matter of construction the policy did "otherwise provide" within the meaning of the opening words of section 55(2)(c) so that the perils of heating, sweating and spontaneous combustion arising from inherent vice or nature of the subject matter insured were covered.
Lord Diplock suggested a definition of 'inherent vice' in an insurance policy: "The facts as I have summarized them for the purpose of determining the question of construction of the HSSC policy in the instant case, assume that the loss resulting from the deterioration of the soya beans during the voyage was proximately caused by the "inherent vice or nature of the subject-matter insured". This phrase (generally shortened to "inherent vice") where it is used in section 55(2)(c) refers to a peril by which a loss is proximately caused; it is not descriptive of the loss itself. It means the risk of deterioration of the goods shipped as a result of their natural behaviour in the ordinary course of the contemplated voyage without the intervention of any fortuitous external accident or casualty." Inability to withstand the ordinary incidents of the voyage is an appropriate test of inherent vice.
Marine Insurance Act 1906 55(2)(c)
1 Cites

1 Citers


 
Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1983] 2 AC 694; [1983] 2 AC 694; [1983] 2 All ER 763; [1983] 3 WLR 203
1983
HL
Diplock, Keith of Kinkel, Scarman, Roskill and Bridge of Harwick LL
Transport, Damages, Contract, Equity
The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter. Held: A withdrawal clause under a time charter, exercised on the ground of the charterer's failure to make punctual payment of an instalment of hire, was not subject to the equitable right to relief against forfeiture, even though it involved the loss of a valuable charter. Such rights of withdrawal are usually exercised where the market rate of hire is substantially above the charter rate. The remedy of relief from forfeiture was unavailable in part because a Court of Equity would not grant specific performance in respect of it.
The House distinguished between merely contractual rights, and contracts concerning the transfer or creation of proprietary or possessory rights. The House warned against the wholesale importation into commercial law of equitable principles inconsistent with the certainty and speed which are essential requirements for the orderly conduct of business affairs.
An injunction restraining the ship owner from exercising his right of withdrawal of the vessel (a contractual right given to him under the charter) was to be equated with an order for specific performance.
Lord Diplock said: "A time charter, unless it is a charter by demise, with which your Lordships are not here concerned, transfers to the charterer no interest in or right to possession of the vessel; it is a contract for services to be rendered to the charterer by the shipowner through the use of the vessel by the shipowner's own servants, the master and the crew, acting in accordance with such directions as to the cargoes to be loaded and the voyages to be undertaken as by the terms of the charterparty the charterer is entitled to give to them. Being a contract for services it is thus the very prototype of a contract of which before the fusion of law and equity a court would never grant specific performance: Clarke v Price (1819) 2 Wils. 157; Lumley v Wagner (1852) 1 De G.M & G. 604. In the event of failure to render the promised services, the party to whom they were to be rendered would be left to pursue such remedies in damages for breach of contract as he might have at law. But as an unbroken line of uniform authority in this House, from Tankexpress [1949] A.C. 76 to A/S Awilco of Oslo v Fulvia S.p.A. di Navigazione of Cagliari (The Chikuma) [1981] 1 WLR 314, has held, if the withdrawal clause so provides, the shipowner is entitled to withdraw the services of the vessel from the charterer if the latter fails to pay an instalment of hire in precise compliance with the provisions of the charter. So the shipowner commits no breach of contract if he does so; and the charterer has no remedy in damages against him. To grant an injunction restraining the shipowner from exercising his right of withdrawal of the vessel from the service of the charterer, though negative in form, is pregnant with an affirmative order to the shipowner to perform the contract; juristically it is indistinguishable from a decree for specific performance of a contract to render services; and in respect of that category of contracts, even in the event of breach, this is a remedy that English courts have always disclaimed any jurisdiction to grant. This is, in my view, sufficient reason in itself to compel rejection of the suggestion that the equitable principle of relief from forfeiture is juristically capable of extension so as to grant to the court a discretion to prevent a shipowner from exercising his strict contractual rights under a withdrawal clause in a time charter which is not a charter by demise."
Lord Diplock said that his judgment was concerned only with time charters that were not by demise: "the reasoning in my speech has been directed exclusively to time charters that are not by demise. Identical considerations would not be applicable to bareboat charters and it would in my view be unwise for your Lordships to express any views about them."
. . And: "The classic form of penalty clause is one which provides that upon breach of a primary obligation under the contract a secondary obligation shall arise on the part of the party in breach to pay to the other party a sum of money which does not represent a genuine pre-estimate of any loss likely to be sustained by him as the result of the breach of primary obligation but is substantially in excess of that sum. The classic form of relief against such a penalty clause has been to refuse to give effect to it, but to award the common law measure of damages for the breach of primary obligation instead."
1 Cites

1 Citers


 
Tor Line AB v Alltrans Group of Canada (The 'TFL Prosperity') [1984] 1 WLR 48; [1984] 1 Ll R 123; [1984] 1 All ER 103
1984
HL
Lord Roskill
Transport, Contract
A roll-on roll-off liner tendered under a charter party did not conform to the description in the contract and the owners relied on a widely drawn exclusion clause. Held: The owners' argument failed. A literal interpretation would have defeated the central objective of the charter contract and would have been commercially absurd. As a result, the exemption was read, not literally, but very restrictively and the owners were held to be liable, notwithstanding the exemption clause, for financial damage resulting from their breach of warranty.
No more should be read into an exemption clause in an insurance policy than is necessary to make sense of it, particularly where to do more would relieve a party from any obligation at all. The repugnancy doctrine (even at its most extreme) only entitles a court to disregard an exception clause if the contract as a whole would otherwise be virtually reduced to a declaration of intent.
Lord Roskill said: "Such a literal construction would mean that the owners would be under no liability if they never delivered the vessel at all for service under the charter or delivered a vessel with a totally different description from that stipulated in the preamble. My Lords I cannot think that this can be right." and “In truth if clause 13 were to be construed so as to allow a breach of the warranties as to description in clause 26 to be committed or a failure to deliver the vessel at all to take place without financial redress to the charterers, the charter virtually ceases to be a contract for the letting of the vessel and the performance of services by the owners, their master, officers and crew in consideration of the payment of time charter hire and becomes no more than a statement of intent by the owners in return for which the charterers are obliged to pay large sums by way of hire, though if the owners fail to carry out their promises as to description or delivery, are entitled to nothing in lieu. I find it difficult to believe that this can accord with the true common intention of the parties and I do not think that this conclusion can accord with the true construction of the charter in which the parties in the present case are supposed to have expressed that true common intention in writing.” and "I doubt whether the fourth sentence of clause 13 imposes greater liabilities than would in any event fall upon the charterers either under the charter or at common law."
1 Citers


 
The Iran Vojdan [1984] 2 Lloyds Rep 380
1984

Bingham J
Transport, Contract
Electric cable was carried on an Iranian flagged vessel from Hamburg to Dubai. The plaintiff consignees, alleging that the cargo was damaged, commenced proceedings against the shipowners in the English courts. The defendants sought a stay on saying that the bill of lading had an exclusive jurisdiction clause under which all disputes were to be tried in Hamburg. There was an issue as to the proper law of the bill of lading contract, the defendants contending for German law and the plaintiffs for Iranian law. The bill of lading contained a provision that the contract was, in the option of the carrier to be declared by him on the merchant’s request, to be governed either by Iranian law with the Tehran courts having exclusive jurisdiction or by German law with the exclusive jurisdiction of the Hamburg courts or by English law with the exclusive jurisdiction of the courts of London. Held. The proper law must be capable of determination when the contract was entered into. The bill was impliedly under German law since that had the closest and most real connection. Applying German law the jurisdiction clause was invalid because it was printed in such small print as to be insufficiently legible. There was therefore no valid exclusive jurisdiction agreement. Obiter he considered the position under Iranian law. There being no evidence of that law, it was assumed to be identical to English law. It was common ground that, having regard to the decision of the Court of Appeal in Armar Shipping Co v. Caisse Algerienne, supra, the jurisdiction clause was unenforceable at least in so far as it introduced a floating proper law. The question then was whether that invalidity also rendered the optional choice of forum invalid.
Bingham J thought it did: “If the clause had confined itself to conferring three options for the choice of jurisdiction on the carrier alone that would seem to me a clause to which effect could properly and without difficulty be given. Moreover, it would seem to me that the plaintiff could well protect himself against abortive proceedings, if that were the effect of the clause, by requesting an exercise of the option before issuing proceedings in one jurisdiction or another. I very much doubt if there is any obligation on the merchant to request the exercise of the option. I do not, however, construing this clause as a whole, think that the choice of jurisdiction can be excised from each of these sub-clauses and given independent effect if the choice of law falls. They are intimately connected with the choice of law options and are not expressed in the clause as separate options. I think, as a matter of construction, that it is artificial and unreal to give effect to the ancillary provision while rejecting the main provision to which it is, as I think, parasitic. Accordingly, I reach the conclusion that this must be treated as a case in which there is no exclusive jurisdiction, applying the principles of English law on the assumption that that is the same as Iranian law.”
1 Citers


 
Miramar Maritime Corporation v Holborn Oil Trading Limited ("The Miramar") [1984] AC 676; [1984] 3 WLR 1
1984
HL
Lord Diplock
Transport, Contract
A bill of lading incorporated a charterparty. The question was whether clauses in the charterparty or bill of lading prevailed. The charter clause incorporated a demurrage clause making the charterer's laible for demurrage, and the owners asserted that the included demurrage clause made the cargo's consignee, as holders of the bill, directly responsible for the demurrage. Held: On its true construction, the contract the parties to the bill of lading intended that the charterer alone should carry responsibility. There is no general rule of construction that an incorporated clause which related directly to the issue operate in substitution for clauses on the same issue in the bill.
1 Cites

1 Citers


 
Berger and Co Inc v Gill and Duffus SA (No 2) [1984] AC 382
1984
HL
Lord Diplock
Contract, Transport
The sellers had agreed to sell 500 tonnes of bolita beans cif Le Havre. In the event only 445 tonnes were discharged at Le Havre and the remaining 55 tonnes were on-carried to Rotterdam. The documents in respect the 500 tonnes were presented but rejected on the ground that they did not contain a quality certificate. The documents were re-presented with a quality certificate in respect of the 445 tonnes. They were again rejected. The sellers accepted this as a repudiation of the contract and claimed damages. The 445 tonnes discharged at Le Havre were found not to correspond with their contractual description. Held: A buyer under a cif contract could not justify a refusal to accept conforming documents on the grounds that the goods in fact shipped did not conform with their contractual description. Thus the buyers' rejection of the documents was a repudiatory breach which the sellers had accepted as terminating the contract. Where, at the time of the buyers' repudiation the sellers had committed a breach by shipping non-conforming goods, the buyers could counterclaim for damages caused by that breach.
Lord Diplock, said of s.13: "while 'description' itself is an ordinary English word, the Act contains no definition of what it means when it speaks in that section of a contract for the sale of goods being a sale 'by description'. One must look to the contract as a whole to identify the kind of goods that the seller was agreeing to sell and the buyer to buy. . . where, as in the instant case, the sale (to use the words of section 13) is 'by sample as well as by description', characteristics of the goods which would be apparent on reasonable examination of the sample are unlikely to have been intended by the parties to form part of the 'description' by which the goods were sold, even though such characteristics are mentioned in references in the contract to the goods that are its subject matter."
and "[The termination of the contract] had the consequence in law that all primary obligations of the parties under the contract which had not yet been performed were terminated. This termination did not prejudice the right of the party so electing to claim damages from the party in repudiatory breach for any loss sustained in consequence of the non-performance by the latter of his primary obligations under the contract, future as well as past. Nor did the termination deprive the party in repudiatory breach of the right to claim or to set off, damages for any past non-performance by the other party of that other party's own primary obligations, due to be performed before the contract was rescinded"
Sale of Goods Act 1893 13
1 Citers


 
The Span Terza [1984] 1 Lloyds Rep 119
10 Jan 1984
HL
Lord Diplock
Transport, Contract
The parties, suppliers of goods and charterers, disputed the ownership of bunkers at the point of sale. Held: Lord Diplock said: "My Lords I agree with Lord Justice Kerr that cl.3 [which set out that Owners were to pay for bunkers on redelivery] and the latter half of cl.4 [which set out the means of redelivery] deal with the same subject-matter and are confined to it. The latter half of cl.4 deals with the redelivery of the vessel (i.e. its being put once more at the disposal of the shipowners by the charterers) on dropping last outward sea pilot at the port within the redelivery range at the end of the contract period; in casu, about two years, 45 days more/less, from the date of delivery. Clause 3 deals with what is to happen to the bunkers aboard the vessel at the time of that redelivery. I share the view of Lord Justice Kerr that as a matter of construction its express provisions are wholly inapt to apply to termination otherwise that pursuant to cl.4"
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Partenreederei Ms Tilly Russ and Ernest Russ v NV Haven- and Vervoerbedrijf Nova and NV Goeminne Hout C-71/83; R-71/83; [1984] EUECJ R-71/83; [1984] ECR 2417
19 Jun 1984
ECJ

European, Transport, Jurisdiction
Europa Convention on jurisdiction and the enforcement of judgments - jurisdiction agreement - jurisdiction clause in a bill of lading - validity - conditions (convention of 27 September 1968, art. 17)
a jurisdiction clause contained in the printed conditions on a bill of lading satisfies the conditions laid down by article 17 of the convention : if the agreement of both parties to the conditions containing that clause has been expressed in writing; or if the jurisdiction clause has been the subject-matter of a prior oral agreement between the parties expressly relating to that clause, in which case the bill of lading, signed by the carrier, must be regarded as confirmation in writing of the oral agreement; or if the bill of lading comes within the framework of a continuing business relationship between the parties, in so far as it is thereby established that the relationship is governed by general conditions containing the jurisdiction clause. As regards the relationship between the carrier and a third party holding the bill of lading, the conditions laid down by article 17 of the convention are satisfied if the jurisdiction clause has been adjudged valid as between the carrier and the shipper and if, by virtue of the relevant national law, the third party, upon acquiring the bill of lading, succeeded to the shipper ' s rights and obligations.
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[ Bailii ]
 
Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co (the Sandrina) [1984] UKHL 8; [1985] 1 Lloyd's Rep 181; 1985 SC (HL) 1; [1985] 1 All ER 129; 1985 SLT 68; [1985] 2 WLR 74; [1985] AC 255
13 Dec 1984
HL

Transport
The pursuers sought recall of an arrestment issued against their ships by the defender.
Administration of Justice Act 1956 47(2)(e)
[ Bailii ]
 
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