Transport - 1980- 1984

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This page lists 21 cases, and was prepared on 28 October 2012.

Fothergill -v- Monarch Airlines Ltd [1980] 2 All ER 696; [1980] 3 WLR 209; [1981] AC 251; [1980] UKHL 6
10 Jul 1980 HL Lord Diplock, Lord Wilberforce	Constitutional, Transport	Casemap 1 Citers
	The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period. Held: Elementary justice requires that the rules by which the citizen is bound should be ascertainable by reference to sources that are accessible. A court may in appropriate cases have regard to travaux préparatoires in construing a treaty but such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention. As to the Convention: "The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text. The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co. Ltd v Babco Forwarding & Shipping (U.K.) Ltd [1978] A.C. 141, 152, `unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation." and where a treaty is directly incorporated into English law by Act of the legislature, its terms become subject to the interpretative jurisdiction of the court in the same way as any other Act of the legislature.
	Warsaw Convention 1929 17 - Vienna Convention on the Law of Treaties
	Link[s] omitted

Britain -v- ABC Cabs (Camberley) Ltd [1981] RTR 395
1981 QBD Webster J	Licensing, Transport	Casemap 1 Citers
	A hackney carriage had been booked, in the district where it was licensed, to pick up a fare in another district. The prosecutor said that when and where the fare was picked up the hackney carriage had no relevant private hire licence and no operator's licence in force since it was not licensed in the area where the pick up occurred. The defendant argued that the licence for the hackney carriage which was in force, albeit in another district, was all that was required and therefore no offence was made out. The prosecutors referred to the definition of 'licence' in section 80, saying the taxi did not have a licence issued by the district where the fare was picked up. Held. The Court relied on the definition of "private hire vehicle" in section 80(1) which expressly excludes a hackney carriage and decided the case in favour of the defendant. Webster J said: "I conclude without hesitation that being a hackney carriage licensed to ply for hire in that district, and not being in breach of that licence at that time and place, it was, for the purpose of section 46(1)(a), to be treated as a hackney carriage in respect of which a vehicle licence was in force, so that no offence under that section would have been made out."
	Government (Miscellaneous Provisions) Act 1976 46(1)(e) 80

The Alfred Trigon [1981] 2 Lloyd's Rep 333
1981	Transport, Insurance	Casemap 1 Citers
	The court considered the wording, in the context of a second-hand ship sale and purchase market, "average damage". Held. "Average" here could not mean "damage" simpliciter and was understandably construed to mean a particular kind of damage – namely, damage occasioned by a peril ordinarily covered by insurance as opposed to defects through wear and tear or general old age."

The Filikos [1981] 2 Lloyd's Rep 555
1981 Lloyd J	Transport	Casemap 1 Cites 1 Citers
	Hague-Visby Rules A2

Ailsa Craig Fishing Co Ltd -v- Malvern Fishing Co Ltd [1983] 1 WLR 964; [1981] UKHL 12; [1983] 1 All ER 101; 1982 SLT 377
26 Nov 1981 HL Lord Fraser, Lord Wilberforce	Contract, Transport, Scotland	Casemap 1 Citers
	Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable to exclusion and indemnity clauses. The words of exclusion must be clear and unambiguous, and should, failing this, be construed strictly against the proponent (cotra preferentem) and is seeking to rely on them. Lord Fraser: "these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when ….the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for…." Lord Wilberforce: Limitation clauses are not viewed with the same hostility as exclusion clauses.
	Hague Rules
	Link[s] omitted

China Pacific SA -v- Food Corpn of India (The Winson) [1982] AC 939
1982 HL Diplock, Keith, Roskill and Brandon LL	Transport, Agency, Contract	Casemap 1 Citers
	A cargo of wheat was loaded in the US for delivery to Bombay. The ship was stranded on a reef in the South China Sea. Salvors entered into a salvage agreement with the shipowners and cargo owners on Lloyds open form. In performance of that contract the salvors lightened the vessel by offloading part of the cargo into barges and carrying it to Manila as a place of safety. There the salvors arranged for it to be stored under cover, in part on a vessel in the harbour and in part in a bonded warehouse ashore. The salvors sought to recover the costs of such storage from the cargo owners, being the stevedoring and charter costs of arranging storage on the vessel in the harbour, and the warehouse charges they had to pay for the warehousing ashore. The storage was both reasonable and necessary for the preservation of the cargo and to prevent its deterioration. The claim had succeeded before Lloyd J, but overturned at the Court of Appeal. Held: The decision was re-instated. The case turned on the application of "well known and basic principles of the common law of salvage, of bailment and of lien." The bailee was left in possession of the goods after the termination of the contract under which the bailment had originally been made, and in the absence of any contrary instructions from the cargo-owner, the warehousing of the goods was necessary for their preservation. Lord Diplock noted that the case had been argued throughout on the basis that the salvage contract had come to an end at the time the cargo arrived in Manila, whilst leaving open whether that assumption was correct. The salvors were entitled to recover the storage costs from cargo owners because as bailees they: "the bailment which up to the conclusion of the salvage services had been a bailment for valuable consideration became a gratuitous bailment; and so long as that relationship of bailor and bailee continued to subsist the salvors, under the ordinary principles of the law of bailment too well known and too well-established to call for any citation of authority, "owed a duty of care to the cargo owner to take such measures to preserve the salved wheat from deterioration by exposure to the elements as a man of ordinary prudence would take for the preservation of his own property . . and if he fulfils that duty he has, in my view, a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so." and "It is, of course, true that in English law a mere stranger cannot compel an owner of goods to pay for a benefit bestowed upon him against his will; but this latter principle does not apply where there is a pre-existing legal relationship between the owner of the goods and the bestower of the benefit, such as that of bailor and bailee, which imposes upon the bestower of the benefit a legal duty of care in respect of the preservation of the goods that is owed by him to their owner." Lord Simon of Glaisdale, concurring, thought that to confine agency of necessity to cases where the issue was the bailee's authority to bind the bailor to contracts with third parties was "justified by the fact that the law of bailment will often resolve any issue between alleged principal and agent of necessity, as it has done here."

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 [1982] 1 Lloyd's Rep 225
1982 CA	Transport	Casemap 1 Citers
	The term "charterer" in section 21(4) includes "time charterer".
	Supreme Court Act 1981 21(4)

Pioneer Shipping Ltd -v- BTP Tioxide Ltd ('The Nema') [1981] 3 WLR 292; [1982] AC 724
1982 HL Lord Diplock	Transport, Arbitration, Contract	Casemap 1 Citers
	There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award. Frustration of a contract is "not likely to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains".
	Arbitration Act 1979 1(3)

Tropwood AG of Zug -v- Jade Enterprises Ltd (The Tropwind) [1982] 1 Lloyd's Rep 45
1982 Robert Goff J	Transport	Casemap
	The court considered "the nature of a shipowner's right to recover from charterers remuneration for services rendered after a ship has been withdrawn from the charterers' service under a time charter, pursuant to an express contractual right of withdrawal". Held: Apart from any express request which might be found to have been made (to render such services), Rober Goff J thought that "their liability (if any) to pay remuneration for the services so rendered can only derive from the principles of the law of restitution".

Industrie Chimiche -v- Nea Ninemia Shipping [1983] 1 All ER 686
1983 Bingham J	Contract, Transport	Casemap 1 Cites 1 Citers
	Construction of exemption clause in time charterparty: "Since it is inherently improbable that one party to a contract should intend to absolve the other party from the consequences of the latter's own negligence, the court will presume a clause not to have that effect unless the contrary is plainly shown by clear words or by implication." and "In carrying out that task of construction, the court should not treat commercial parties as if they were law students."

The Strathnewton [1983] 1 Lloyd's Rep 219
1983 CA Kerr LJ	Transport	Casemap 1 Cites
	Hague-Visby Rules A2

Empresa Exportadora de Azucar -v- Industria Azucarera Nacional S.A, The Playa Larga [1983] 2 Lloyds Rep 171
1983 CA Ackner LJ, Stephenson LJ, Sir Segab Shaw	Transport, Jurisdiction, Contract	Casemap 1 Citers
	The effect of disregarding a provision of foreign law as manifestly contrary to public policy may be to render enforceable in England a contract which is not enforceable by its proper law. The court considered the measure of damages in relation to the non-delivery of goods sold by the defendants to the plaintiffs. The plaintiffs claimed that the damages recoverable should be related to the highest price prevailing at any time between the date of the breach and the date of the arbitration award. This contention was rejected. Ackner L.J: "Mr. Rix, in his cross-appeal, argued that the damages recoverable by Iansa in contract should be related to the highest price prevailing at any time between the date of the breach and date of the award. Mr. Justice Mustill rejected this submission and has set out his reasons most fully, which we are happy to adopt. We would, however, venture to suggest that the matter can be put more simply. Iansa, as complainants, must establish what damage they have suffered. Mr. Rix had to accept: (a) That after the date when Iansa could have bought in to cover their loss there was no evidence at all that the fluctuations in the sugar market made the slightest financial difference to them. There was no evidence that they could have sold at the highest price. On the contrary, the reasonable inference was that the goods would have been resold for domestic or other consumption in Chile, (b) Although theoretically Cubazucar was capable of selling the sugar at the highest price, there is no evidence that it did so. Accordingly, to the plaintiffs' contention that Cubazucar should not profit from its own wrong comes the simple reply: they have not shown that Cubazucar have done so. We cannot, therefore, see any basis upon which Iansa can seek to achieve a windfall in the form of an extra $1,200 per tonne over and above the price which was prevailing when they should have bought in the market."

Soya GmbH Mainz Kommanditgesellschaft -v- White [1983] 1 Lloyd's Rep 122
1983 HL Lord Diplock	Insurance, Transport	Casemap 1 Cites 1 Citers
	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)

The Scaptrade [1983] 2 AC 694
1983 HL Lord Diplock	Transport, Equity	Casemap 1 Citers
	The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter. Held: The remedy of relief from forfeiture was unavailable in part because a Court of Equity would not grant specific performance in respect of it. 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. "To grant an injunction restraining the ship owner 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 ship owner 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." Lord Diplock: "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 W.L.R. 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."

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	Casemap 1 Citers
	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."

The Iran Vojdan [1984] 2 Lloyd’s Rep 380
1984 Bingham J	Transport, Contract	Casemap 1 Citers
	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.”

Miramar Maritime Corporation -v- Holborn Oil Trading Limited ("The Miramar") [1984] AC 676; [1984] 3 WLR 1
1984 HL Lord Diplock	Transport, Contract	1 Cites 1 Citers
	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.

The Span Terza [1984] 1 Lloyd's Rep 119
10 Jan 1984 HL Lord Diplock	Transport, Contract	Casemap 1 Cites 1 Citers
	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"

Partenreederei Ms Tilly Russ and Ernest Russ -v- NV Haven- & 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	Casemap
	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.
	Link[s] omitted

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