Transport - 1970- 1979

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This page lists 27 cases, and was prepared on 28 October 2012.

Astro Vencedor Compania Naviera SA v Mabanaft GmbH [1971] Lloyd's R 502; [1971] 2 QB 588
1971 CA Lord Denning	Arbitration, Transport	Casemap 1 Citers
	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 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'.'

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

Kum and Another -v- Wah Tat Bank Ltd [1971] AC 439; [1971] 1 Lloyd's 439
1971 HL Lord Devlin	Transport, Contract	Casemap 1 Citers
	"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.

The Annefield [1971] CLY 10839
1971	Transport	Casemap 1 Citers

Brimnes, the Tenax Steamship Co -v- Brimnes, Owners of [1973] 1 WLR 386
1973 Brandon J	Transport, Contract	Casemap 1 Citers

Channel Airways Ltd -v- Manchester Corporation [1974] 1 Lloyd's Rep 456
1974 Forbes J	Transport	Casemap 1 Citers
	There are many species of lien which do not depend on possession, including for example certain equitable liens. The statutory right of detention but conferred by a Private Act was not strictly a lien.

New Zealand Shipping Co Ltd -v- A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] UKPC 1
25 Feb 1974 PC Lord Wilberforce	Contract, Transport, Commonwealth, Contract	Casemap 1 Citers
	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 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... "
	Link[s] omitted

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	Casemap 1 Cites 1 Citers
	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."
	Link[s] omitted

Alexander Ward & Co Ltd -v- Samyang Navigation Co Ltd 1975 SC(HL) 26
1975 HL Lord Kilbrandon	Scotland, Transport	Casemap 1 Citers
	The House explained the distinction between an arrestment to found jurisdiction and an arrestment on the dependence. The purpose of the latter was to freeze the subject arrested in the hands of the common debtor or in the case of a ship to prevent her movement, in order to provide the pursuer with security for payment by the defender of such sum as he shall be found to owe. On the other hand arrestment jurisdictionis fundandae causa did not attach the property arrested. It merely attested to the fact that the ship was at the time within the jurisdiction and that notice had been given that it was the intention of the person using the diligence to raise an action founding on the jurisdiction which resulted from the property being within the country. As to the question whether the warrant to arrest to found jurisdiction with the procedure which followed on it, made up something separate from the action whose purpose they were to serve, so that, being spent, they could not be ratified, that was not the correct conclusion: "The fact that there is no nexus, the nexus having had but an ephemeral or rather momentary existence while the warrant was in the course of execution, does not mean that the juridical effect of the arrestment is likewise momentary and ephemeral."

Oceanic Freighters Corporation -v- MV Libyaville Reederei und Schiffahrts GmbH (The Libyaville) [1975] 1 Lloyd's Rep 537
1975 QBD Mocatta J	Contract, Transport	Casemap 1 Citers
	In charterparty disputes guidance may sometimes be found in landlord and tenant law. Using such a principle in this case, Mocatta J held that the acceptance of a smaller sum than the hire due, albeit under strong protest, precluded the shipowner from withdrawing the vessel for short payment. Mocatta J said: "the courts should do their best, consistently with legal principles, to give effect to this clause, which . . shows a praiseworthy effort to reduce the technicalities, inappropriate to a commercial relationship, which so often arise in connection with the right to withdraw a ship under a time charter."

Evans and Son (Portsmouth) Ltd -v- Andrea Merzario Ltd [1976] 1 WLR 1078; [1976] 2 All ER 930
1976 CA Lord Denning MR, Roskill and Geoffrey Lane LJJ	Contract, Transport	Casemap
	The defendants had carried previously goods aboard ship for the plaintiffs. This time, they were asked for and gave an oral re-assurance to the plaintiffs that the goods would be carried below deck. This did not happen and the goods were swept overboard. Held: The carrier could not rely on his usual exceptions (including a limitation of liability to £50 per ton) The oral undertaking that the goods would be carried under deck amounted to a collateral contract. Lord Denning said: "But even in respect of promises as to the future, we have a different approach nowadays to collateral contracts. When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, we hold that it is binding." and "it seems to me plain that Mr Spano gave an oral promise or assurance that the goods in this new container traffic would be carried under deck. He made the promise in order to induce Mr Leonard to agree to the goods being carried in containers. On the faith of it, Mr Leonard accepted the quotations and gave orders for transport. In those circumstances the promise was binding. There was a breach of that promise and the forwarding agents are liable - unless they can rely on the printed conditions." Roskill LJ: "The real question, as I venture to think, is not whether one calls this an assurance or a guarantee, but whether that which was said amounted to an enforceable contractual promise by the defendants to the plaintiffs that any goods thereafter entrusted by the plaintiffs to the defendants for carriage from Milan to the United Kingdom via Rotterdam and thence by sea to England would be shipped under deck."

Wills Trustees -v- Cairngorm Canoeing and Sailing School [1976] SC (HL) 30
1976 HL Lord Wilberforce, Lord Salmon, Lord Fraser of Tullybelton	Utilities, Transport, Scotland, Land	Casemap 1 Citers
	The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. "A public right of way on highways is established by use over the land of a proprietor." The existence of the right does not depend upon there being two termini for any journey. The right may embrace the passage of articles without human accompaniment, for instance, the floating of logs on the current either singly or in rafts.

The Ciechocinek [1976] 1 Lloyds Rep 489
1976 CA Lord Denning MR	Transport	Casemap 1 Cites
	Hague-Visby Rules A2

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	Casemap 1 Citers
	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".
	Link[s] omitted

Albacruz (Cargo Owners) v Albazero 'The Albazero' [1977] AC 774
1977 HL Lord Brandon, Lord Diplock	Transport, Contract	Casemap 1 Cites 1 Citers
	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

The Johnny [1977] 2 LLR 1
1977	Transport, Damages	Casemap 1 Citers
	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".

The Myrto [1977] 2 Lloyd's Rep 243
1977 ChD Brandon J	Transport	Casemap 1 Citers
	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."

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	1 Cites
	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

The Mareva AS [1977] 1 Lloyd's Rep 368
1977 Kerr J	Transport	Casemap 1 Citers
	The wording "average accident" in the policy: "merely means an accident which causes damage."

The Polyglory [1977] 2 Lloyd's Rep 353
1977	Transport, Negligence	Casemap 1 Citers
	Even negligent navigation following the charterer's order to proceed to an unsafe port will not necessarily break the chain of causation as to damages.

The Arawa [1977] 2 Lloyd's Rep 416
1977 Brandon J	Transport, Contract	Casemap 1 Cites 1 Citers
	Hague-Visby Rules III r2

Marcel Derycke C-65/76
25 Jan 1977 ECJ	European, 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.
	Link[s] omitted

Higginbotham -v- Mobil Oil Corporation Long [1977] USCA5 438; [1977] 545 F 2d 422
7 Mar 1977 d'Auvergne J	International, Negligence, Transport	Casemap 1 Citers
	(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".
	Link[s] omitted

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 [1978] QB 343
1978 CA Lord Denning MR, Goff and Shaw LJJ	Road Traffic, Transport, Negligence	Casemap 1 Cites 1 Citers
	Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully taken up with sanding and gritting roads, but on the Wednesday evening one of their workmen reported the dangerous state of the particular path to them, and they took prompt action next morning, but not in time to prevent the plaintiff's accident. Held: The authority was liable. The duty to maintain the highway in section 44(1) included removing snow and ice and taking such protective measures as would render highways and paths safe for vehicles and pedestrians in bad weather conditions. Lord Denning (dissenting): "'Repair' means making good defects in the surface of the highway itself so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. That is the combined effect of the statements of Blackburn J. in Reg. v. Inhabitants of High Halden (1859) 1 F. & F. 678; of Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 and Cairns L.J. in Worcestershire County Council v. Newman [1975] 1 W.L.R. 901, 911. Thus deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface make all the highways 'out of repair'." The statutory definition does not imply that "maintain" has a wider meaning than "repair", and that given the legislation history the cause of action which an injured person has under the 1961 Act was limited to "non-repair" of a highway, and did not include other cases. On the extent of that duty: "In my opinion, therefore, the duty in section 44 of the Act of 1959 "to maintain the highway" is the equivalent of the duty at common law and in the Act of 1835 "to repair and keep in repair." It means that whenever there is a defect in the surface of the highway, the highway authority is under a duty to repair it. But it does not mean that the highway authority is under a duty to remove snow or ice whenever it makes the highway slippery or dangerous. I adhere, therefore, to the view I expressed in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1494: ". . . an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain". Goff L.J said that the highway authority would be in breach of duty only if: "having regard to the nature and importance of the way, sufficient time [has] elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence."
	Highways Act 1959 44(1) - Highways Act 1961

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.
	Link[s] omitted

"The Angel Bell" [1979] 2 Lloyd's Rep
1979 Donaldson J	Transport	Casemap 1 Citers
	“A ship is, in effect, a floating piece of the nation whose flag it wears and there is, therefore an analogy between foreign land and foreign ships”.