Proof That the Vessel was Defective



Proof that the vessel was defective raises several questions. The first is the easiest to answer; it is, what constitutes a defect ? The second question is when in point of time must the defect be shown to have existed? When the path of proof is the “long route”, this proof must be made by the claimant. But when it is the “short route” and when art. IV r. I is treated as an ordinary exception, this proof must be given by the carrier. When art. III r. I is treated as a condition precedent this proof does not arise at all. Other questions concerning the method of proof and causation also arise.


Latent Defect Causal Connection Short Route Force Majeure Insurance Case 
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    Scrutton p. 436; Carver no. 29o; Rodière no. 764; Marais, Transports Internationaux p. 133.Google Scholar
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    Canadian Transport v. Court Line [ 1940 ] A.C. 934, 943 per Ld. Wright. This assumes that the operation is within the scope of the contract of carriage; the parties may agree otherwise: Pyrene v. Scindia Navigation [1954] 2 Q.B. 402, in which Devlin J. held that art. II of the Rules did not compel the carrier to assume responsibility for loading and/or unloading in all cases. This view was approved in Renton v. Palmyra [1957] A.C. 149, 170 (Ld. Morton), and 174 (Ld. Somervell). The view was rejected in Singapore in Rambler Cycle Co. v. P. & O. [1968] 1 Lloyd’s Rep. 42. It would also have been rejected by a French court applying L36 art. I; it might be otherwise under the present law of 18.6.66, whereby the carrier is responsible “depuis la prise en charge jusqu’à la livraison.” (art. 27) The present formula is more flexible. But it has been held that, whereas the parties may agree that the carrier’s duties begin earlier, they may not begin later than when the goods are attached to the ship’s tackle for loading: Mont Joly, T.C. Marseille, 10.6.69, D.M.F. 70. 224.Google Scholar
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  41. 47.
    Lindsay v. Klein [ 1911 ] A.C. 194, 197 per Ld. Loreburn L. C. The defect was a broken pipe in the feed pumps to the ship’s boilers. This dictum was applied in a case decided under the Rules, The City of Alberni [1947] 2 D.L.R. 647, 651: a leak in the stem manifested itself after 3 days of sailing in normal weather. The presumption also operated in The A ssunzione [1957] 2 Lloyd’s Rep. 468; the steering gear broke down 3 days out of Dunkirk. After underlining that the trouble first appeared before the weather deteriorated, Willmer. J. (at pp. 481–2) found that it must have existed when the voyage commenced.Google Scholar
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    See, for instance, Cosmopolitan Shipping v. Hatton & Cookson (1929) 35 L1.L.R. 117.Google Scholar
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    See, for instance, The Bryntawe (1928) 32 L1.L.R. 155, 157; Silcock v. Maritime Lighterage (1937) 57 LI.L.R. 78, 8o; Cranlield Bros. v. Tatem S.N. Co. (1939) 64 Ll.L.R. 264, 266–7; The Dimitrios N. Rallias (1922) 13 LI.L.R. 363, 365. Not surprisingly the same factors attract the attention of the French courts in those cases in which the age of the defect is relevant to whether the carrier has exercised due diligence: Euphorbia, Pau 25.6.34, Dor 30.329; Compiègne T.C. Seine 25.1.54, D.M.F. 54.486; Zit, Aix 9.6.59, D.M.F. 59. 534.Google Scholar
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    Smith Hogg v. Black Sea and Baltic Ins. [ 1940 ] A.C. 997, 1004 per Ld. Wright, applying the common law decisions in The Europa [1908] P. 84, and Kish v. Taylor [1912] A.C. 604. The reasons for this rule at common law seem equally good under the Convention; see supra ch. 12 no. 5 (ii); Carver no. 103, Tetley p. 93; Pourcelet no. 58. For cases requiring a causal connection under the Convention, see also Maxine Footwear v. Canadian Govt. Merchant Marine [1959] A.C. 589, 602 per Ld. Summer; The Muncaster Castle [1960] 1 Q.B. 536, 569 per Ormerod L. J. Idem in the U.S.: Isbrandtsen v. Federal Ins. (1952) 113 F. Supp. 357; The Black Heron [1964] A.M.C. 42; in Canada: Western Canada S.S. Co. v. Canadian Commercial Corp. [1961] 2 Lloyd’s Rep. 313, 318 (Sup. Ct.). Federal Commerce & Navigation v. Eisenerz [1975] 1 Lloyd’s Rep. 105 (Sup. Ct.). The Assunzione [1956] 2 Lloyd’s Rep. 468, 472 per Will-mer J., illustrates the further point that a defect which does not cause loss and is thus of no direct relevance may, if there is another defect that does cause loss, still be of indirect relevance as tending to be “evidence supporting (a) contention of general defective maintenance and upkeep of the vessel,” which goes to weaken any evidence given by the carrier of his diligence. Cf. the Harter Act, where no causal connection was required: The Isis (1934) 48 LI.L.R. 35, 40 (U.S. Supreme Ct.); The Heinz Horn [1970] r Lloyd’s Rep. 19r (United States Court of Appeals).Google Scholar
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    o] r Q.B. 447. The court took the reasoning of Diplock L.J. in the Hong Kong Fir case, [1962] 2 Q.B. 26, 68–9, which distinguished breaches amounting to breach of condition from breaches amounting only to breach of warranty, and used that reasoning to separate fundamental breaches from those amounting only to breach of condition. See also Eastman Chemicals v. N.M.T. Trading [1972] 2 Lloyd’s Rep. 25.Google Scholar
  55. 65.
    See, for instance, Harbutt’s Plasticine v. Wayne Tank [1970] 1 Q.B. 447; and Farnworth Finance v. Attryde [1970] 1 W.L.R. 1053, 1059 (per Ld. Denning): “A man only affirms a contract when he knows of the defects and by his conduct elects to go on with the contract despite them.” Cf. Sale of Goods Act 1893 s. 35.Google Scholar
  56. 66.
    Suisse Atlantique case [ 1967 ] I A.C. 361, 398 per Ld. Reid. See also Harbutt’s Plasticine v. Wayne Tank supra, applied in United Fresh Meat v. Charterhouse Cold Storage [2974] 2 Lloyd’s Rep. 286.Google Scholar
  57. Then the whole contract ceased to exist including the exclusion clause, and I do not see how that clause can be used to exclude an action for loss which will be suffered by the innocent party after it has ceased to exist.Google Scholar
  58. 67.
    It has been suggested that a French claimant might raise a comparable argument with more success (though less effect). Rodière asks (D.M.F. 62.335n) “Pourrait-on concevoir l’appel à la notion d’innavigabilité lorsqu’elle existait avant le départ, en se fondant sur l’idée que le contrat serait sans cause si le chargeur devait remettre sa marchandise et acquitter un fret pour un voyage à faire sur un navire d’ores et déjà innavigable.” This argument does not appear to have been put to the courts in any of the many cases in which the ship was unseaworthy; this perhaps because “la cause de l’obligation de chacune des parties réside dans l’obligation de l’autre,” (De la Morandière, Précis de Dr. Civ. (3rd ed.) no. 371; see also Car-bonnier, t. 4 no. 26), and the essence of the carrier’s obligation is, not the provision of a seaworthy ship, but safe delivery of the goods at destination (supra ch. II). But the argument is missing also from charter-party cases in which seaworthiness is central to shipowner’s obligation. Further, the successful claimant would find that, since a valid obligation had never come into existence, he could claim, not damages, but only restitution of freight (Rodière loc. cit.; but cf. Carbonnier loc. cit.).Google Scholar
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    Indeed, two members of the Court in Harbutt’s Plasticine v. Wayne Tank seemed to doubt whether there was a difference between fundamental breach and breach amounting to breach of condition: [197o] i Q.B. 447, 472 (Widgery L.J.) and 475 (Cross L.J.). The difference has been denied by Jenkins, 1969 Camb. L.J. 251, 263; cf. Devlin, 1966 Camb. L.J.Google Scholar
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  65. 74.
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  67. 76.
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    ] 1. A.C. 361.Google Scholar
  69. 78.
    This is clearly demonstrated by Devlin, 1966 Camb. L.J. 192, 210 ff.Google Scholar
  70. 79.
    Cf. the decision of the Court of Appeal in Farnworth Finance Co. v. Attryde [1970] 1 W.L.R. 2053: the court found a fundamental breach of an implied term that a vehicle should be reasonably fit for the purpose for which it was hired, even though the contract expressly excluded any such term. The decision rests on the fundamental character of the breach, which is thus both a breach (in spite of the clause) and a ground for ignoring the clause in accordance with the presumed intention of the parties.Google Scholar
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    ] 2 Q.B. 695, 73o-1. The notion is found in a more extreme form in Horne v. Midland Ry. (1873) L.R. 8 C.P. 131, 141 where Blackburn J. required “an actual contract… on the part of the defendant to bear the loss.”Google Scholar
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    N.B. a similar case might be made for exemption clauses if they are seen as concerning, not primary rights, but secondary rights, or indeed for all the contractual terms: Weir 1970 Camb. L.J. 191; Coote ibid. 221, 226.Google Scholar
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    It is true that the English Cogsa, by virtue of its s. I applies “in relation to and in connection with the carriage of goods by sea.” But s. 1 can only live harmoniously with art. II if that “relation” or “connection” is understood to be the “contract” referred to by art. II.Google Scholar
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  80. 91.
    Cf. The Assunzione [2956] 2 Lloyd’s Rep. 468, 477 where Willmer J. thought obiter that it was for him to calculate the proportion due to each cause.Google Scholar
  81. 92.
    Artésien, T.C. Seine, 4.22.59, D.M.F. 60. 359.Google Scholar
  82. 93.
    Ripert no. 1719.Google Scholar
  83. 94.
    See, for instance, Ténéritje, Aix, 4.11.65, D.M.F. 66.417. Cf. Pourcelet no. 85 who wrongly asserts this to be the rule in common law countries.Google Scholar
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    Djoliba, Aix 11.10.60, D.M.F. 62. 276.Google Scholar
  85. 96.
    o] A.C. 997, 1003 ff.Google Scholar
  86. 97.
    No. xo6; see also nos. 1422ff.; cf. Scrutton p. 88 n. 5.Google Scholar
  87. 98.
    However, difficulties of terminology are not thereby avoided; see the exercise in semantics undertaken by the majority of their Lordships in The Heron II [1969] 1 A.C. 35o.Google Scholar
  88. 99.
    This appears to be the test of remoteness sown in Hadley v. Baxendale (1854) 9 Exch. 341, and later cultivated by the Court of Appeal in Victoria Laundry v. Newman Industries [1949] 2 K.B. 528, and by the House of Lords in The Heron II [1969] 1 A.C. 35o. The words `not unlikely’ are those of Ld. Reid (at p. 388) used to connote “rather less than an even chance.” Other judges used different words and it is by no means clear that they required the same odds. Cf. Ld. Hodson (p. 411) and Ld. Pearce (pp. 416–7).Google Scholar
  89. 100.
    See also The Isis (1934) 48 Ll.L.R. 35, 38 ( U.S. Supreme Court ).Google Scholar
  90. 101.
    The Heron II [1969] 1 A.C. 350, 385–6 (Ld. Reid), Orr (Ld. Hodson), 413 (Ld. Pearce) and 422 (Ld. Upjohn). On this, critically, see Hamson, 1968 Camb. L.J. 14, James, 1968 J.B.L. 303.Google Scholar
  91. 102.
    Supra ch. 11 no. 2.Google Scholar
  92. 103.
    Devlin, 1966 Camb. L.J. 192, 209.Google Scholar
  93. 104.
    Thus Rodière seems to take a step in this direction (no. 6x 3) when assessing the effect of exoneration for unseaworthiness: “la preuve de l’innavigabilité fait disparaltre la présomption de responsabilité et lui substitue une présomption de faute.” Braekhus p. 20 goes further: the basis of liability under the Rules is culpa and this is reflected in art. IV r. 2 (q). The only English writer to attach much significance to this provision is Astle, Shipowner’s Cargo Liabilities and Immunities, p. 13.Google Scholar
  94. 106.
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  95. 107.
    For a maritime example, see Pierre de Saurel, Rabat 24.11.54, D.M.F. 56.38. A comparable rule is found in English law in Elswick S.S. v. Montaldi [19o7] t K.B. 626: the charterer’s duty to discharge the vessel within the lay-days was subject to strikes “which prevent or delay the discharging.” When most of the cargo should have been discharged, but had not been discharged as a result of the charterer’s fault, a strike occurred prolonging the vessel’s stay in port. The strike occurred after to days; without strike, discharge should have been completed in 13 days; with strike on the ttth day in 14 days. As a result of the charterer’s continuing dilatoriness it took 25 days. Bigham J., in a brief judgment, awarded the shipowner demurrage for 7 days, saying that the charterer `cannot rely on the strike as an excuse except for delay in discharging the small portion of cargo which would still have remained in the ship when the strike commenced, even though the discharge had been conducted at the proper rate.“ In this case therefore, the problem is one of separating the effect of two causes, strike and delay; the latter does not eliminate the exonerating effect of the former for the former would have had some effect even without the latter. Thus it is a question of apportioning loss between two causes; see also supra no. 4 (iv). In Carbonnier’s illustration, there would have been no damage had there not been delay, so the delay is not separable in law from the immediate cause of damage and its presence deprives the event of the non-imputability needed if it is to be force majeure. It can be inferred that Bigham J. would have reached the same conclusion if the strike had intervened when discharge should have been completed: ”once on demurrage, always on demurrage,“ unless the exemption is clearly worded otherwise. This rule does not fit easily into general ideas of causation; perhaps it is best seen as a manifestation of the presumed intention of the parties in the context of demurrage.Google Scholar
  96. 109.
    Generally, see Carver nos. 165 ff.Google Scholar
  97. 110.
    Hamilton v. Pandorf (1887) Is App. Cas. 518. See also The Xantho ibid. p. 503: the carrier was exonerated on the ground of perils of the sea, although the peril (collision) was the inevitable result of the negligence of the other vessel.Google Scholar
  98. 111.
    This was the decision of the Court of Appeal in Reardon Smithy. Ministry of Agriculture [1962] 1 Q.B. 42. But the ratio of the decision was not that suggested in the text. A gap between event and loss may be bridged either (1) by extending the notion of the event and saying that the event includes all reasonable action taken in response to the event, or (2) by extending the chain of causation to accommodate the fact that the event was not in a strict sense the cause proximate in time. The Court took the first option (see pp. 74 and 504) and Carver (no. 648) agrees that “one cannot differentiate between the strike and emergency action taken in view of the strike.” He is led to conclude that the causation rule in this context is like that in insurance cases (infra). But it is respectfully submitted that the second option is the better one: (a) it avoids a rather strained construction of the word strike; (b) it means that the charter’s exceptions have the same causal relation with loss as the shipowner’s and it is both logical and desirable (especially as exceptions are often mutual, see Scrutton pp. 207–8) that this should be so. The only other cases cited by Carver for his conclusion were decided outside England.Google Scholar
  99. 112.
    Garsten Co. v. Hickie (No. 2) (1886) 18 Q.B.D. 17.Google Scholar
  100. 113.
    Pink y. Fleming (1890) 25 Q.B.D. 396.Google Scholar
  101. 114.
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  102. 115.
    This appears to be partially correct, but it is difficult to reconcile with some of the leading cases. In Canada Rice Mills v. Union Marine Ins. [1941] A.C. 55, the carrier closed the hatches and ventilators in the holds to protect the cargo from the weather. The underwriters were held liable for damage to cargo caused immediately by heat from the engines on the ground that loss was due to perils of the sea. Although it is clear that the carrier would not have been liable to the cargo owner, his action in closing the hatches and ventilators being a reasonable response to the peril which was thus proximate in efficiency, it is difficult to see how the peril insured against was proximate in time for an action on the policy of insurance — unless the peril is given an extended meaning; the latter reasoning has been objected to supra. Nor did the peril inevitably cause the loss.Google Scholar
  103. 115.
    In Leyland Shipping v. Norwich Union Ins. [ 1918 ] A.C. 35o, a torpedoed ship was towed to Le Havre but sank when the weather turned rough. The underwriters of cover against the usual marine perils but “warranted free… from all consequences of hostilities of warlike operations” were held not to be liable. On the facts it is clear that the sinking was not an inevitable result of the torpedo: the ship was initially berthed in the outer harbour and had she been allowed to remain there she would probably have been saved (p. 354). But the port authorities (reasonably) ordered her to an anchorage outside the harbour by a breakwater; it was only at this moment that loss became inevitable. But most of their Lordships disregarded the order and Ld. Finlay L.C. said (at p. 355) that the case must be considered just as if the ship had been taken straight to the breakwater. On this premise it is clear that what happened was the inevitable work of the torpedo (pp. 356 and 36o). Two points emerge from the judgments:1) An exception of hostilities etc. would be all but meaningless if confined to the effect of the impact or explosion excluding the consequent action of sea water (pp. 363, 366 and 370). The fact that that action is slow and takes place over a period of time is irrelevant in itself (pp. 356–7). Thus, on their view of the relevant facts and although none of their Lordships explicitly say so, the hostility was proximate in time.2) In law the causa proxima in insurance cases is not necessarily the cause proximate in time Hence their Lordships’ views are not inconsistent with the rule suggested in the text. 117 See, for instance, the Baltime charterparty cl. 9.Google Scholar
  104. 115.
    I think that the event which is nearest in point of time can be said to be too remote in law… only if some earlier event must have led inevitably to a fatal result…. It is a contract of indemnity, and I can see no reason for treating it differently from any other contract of insurance.“ Devlin J. in The Ann Stathatos (195o) 83 L1.L.R. 228, 238; the question in that case was whether the charterer should indemnify the shipowner in respect of the consequences of an explosion in cargo loaded at the order of the charterer. The same rule of causation underlies the finding that the charterer need not indemnify the shipowner in respect of marine hazards suffered on a voyage ordered by the charterer: Larrinaga v. The King [1945] A.C. 246, 26o per Ld. Porter; Stag Line v. Ellerman Lines (1949) 82 LI.L.R. 826. But cf. cases in which the charterer orders the master to issue a bill of lading to shippers, the terms of which render the carrier potentially liable to the shippers in circumstances in which he would not have been liable to the charterer under the charterparty (e.g. master’s negligence); it is clear law that the carrier can recover from the charterer an indemnity equivalent to the damages that he has paid to the shippers: Kruger v. Mod Tryvan [1907] A.C. 272; Milburn v. Jamaica Fruit Co. [2900] 2 Q.B. 540. But the causal connection appears more tenuous than that of Devlin J. The only inevitable consequence of the charterer’s order is potential liability to shippers. One might avoid this difficulty by regarding the sums awarded as a quantification of that potential liability, but the judgments seem to regard the actual loss as being sufficiently caused by the charterer (see Milburn at p. 555 per Romer L.J.). The actual loss, however, would seem to be separated from the order by an act of negligence or other breach of the bill of lading contract. In The White Rose [2969] I W.L.R. 2098, 2208, Donaldson J. said that ”I would not accept as a generalisation that if some act of negligence intervenes or some marine casualty intervenes then… the chain of causation is broken and the indemnity does not operate.“ Yet he held that the charterer owed the shipowner no indemnity and seemed to think that the loss (liability to a stevedore) was separated from the charterer’s order by the unsafe system of work on board ship. Thus the cases do not present a clear picture.Google Scholar
  105. 129.
    See, for instance, Ripert nos. 1714 ff.; Rodière nos. 626 ff. and 756 ff.Google Scholar
  106. 121.
    The same is true when it is a question of defining obligations, see supra no. 4 (iii).Google Scholar
  107. 122.
    The wide and sometimes composite character of force majeure avoids the difficulty faced by the Court of Appeal in Reardon Smith v. Ministry of Agriculture, supra [ 1962 ] r Q.B. 42. The withdrawal of labour alone did not lead inevitably to the delay, for a small amount of grain could be and was loaded into other ships. It was the port authority that decided that the plaintiff’s ship should be one of those that did not receive grain. In finding for the defendant, the Court was forced to decide that the excepted cause, strike, comprised not only the withdrawal of labour but also the consequential decision of the port authority. In this expanded and composite form `strike’ was the proximate cause of delay. A French court would have little hesitation and less difficulty in fitting these factors, non imputables à l’armateur, into the broader package of force majeure. It is not any one component factor that must be inevitable, but the whole, and clearly the carrier would have been exonerated.Google Scholar
  108. 123.
  109. 129.
    Mazeaud Leçons, t. 2 nos. 571 and 574. Marty et Raynard II vol. 1 nos. 45o ff. This analysis of the effect of cause étrangère is criticised by Planiol et Ripert t. 6. n. 383.Google Scholar
  110. 125.
    Supra no. 4 (y). This is true of cases adhering to the theory of équivalence de conditions.Google Scholar
  111. 126.
    Marty et Raynaud II vol. r no. 480.Google Scholar
  112. 127.
    Marty et Raynaud II vol. 1 nos. 45o and 489.Google Scholar
  113. 128.
    Marty et Raynaud II vol. 1 nos. 489 and references cited. les Planiol et Ripert t. VII no. 861; Mazeaud, Leçons t. 2 no. 569.Google Scholar
  114. 130.
    Mazeaud, Leçons t. 2 nos. 562, 566 and 569.Google Scholar
  115. 131.
    Marty et Raynaud II vol. 1 no. 481.Google Scholar
  116. 132.
    Planiol et Ripert t. VII nos. 862 and 864.Google Scholar
  117. 133.
    Mazeaud, Leçons t. 2 no. 566.Google Scholar
  118. 135.
    Mazeaud ibid.; see also Marty et Raynaud II vol. I no. 480.Google Scholar
  119. 136.
    Planiol at Ripert t. VII no. 862.Google Scholar
  120. 137.
    Generally see Marty et Raynaud II vol. I no. 48o and references cited.Google Scholar
  121. 136.
    ) 9 Exch. 341, 354: “the damage which the other party ought to receive… should be such as may fairly and reasonably be considered… arising naturally i.e. according to the usual course of things (or as would arise in the great multitude of cases).” This language was relied upon by Ld. Hodson in The Heron II [1969] I A.C. 350, 41r.Google Scholar
  122. 135.
    Discussed generally supra no. 4 (v).Google Scholar
  123. 145.
    Until recently it appeared that in English law a similar result was achieved by different reasoning, namely, by holding that the unexpected extent of loss rendered that loss different in kind and more remote than a similar but less extensive loss: Victoria Laundry v. Newman Industries [2949] 2 K.B. 528. (The Plaintiff recovered loss or ordinary profits on dyeing contracts, but not the exceptional profits that would have been made on government contracts of which the defendant was ignorant.) But in Vacwell v. B.D.H. [197r] r Q.B. III, once it was found that an explosion was not too remote a consequence of the defendant’s breach of contract, Rees J. (p. 944) thought it immaterial that the explosion that actually occurred was much greater than could reasonably have been contemplated by the parties, and allowed the plaintiff to recover in full. See also Wroth v. Tylor [1974] Ch. 30, 6o (Megarry J.).Google Scholar
  124. 141.
    Victoria Laundry v. Newman Industries [ 1949 ] 2 K.B. 528. 543 Per Asquith L. J. See also The Heron II [1969] r A.C. 350, 392 (Ld. Reid), 400 (Ld. Morris), 412 (Ld. Hodson), and 425 ( Ld. Upjohn ).Google Scholar
  125. 142.
    Planiol et Ripert t. VII no. 862.Google Scholar
  126. 143.
    Generally, see Marty et Raynaud II vol. r no. 480 and references cited.Google Scholar
  127. 144.
    Marty et Raynaud II vol. I no. 450; Nerson, S. 52.1.89, g6, notes: “En réalité, rechercher si la force majeure a été la cause exclusive du sinistre, se ramène à rechercher s’il n’y a quelque apparence de faute.”Google Scholar
  128. 145.
    Supra no. 4 (v).Google Scholar
  129. 146.
    Comm. 19.6.52, S. 52.1.89.Google Scholar
  130. 147.
    See the findings of fact of T.C. Alger, 12.6.47, D.M.F. 49. 151.Google Scholar
  131. 148.
    Cf. Alger, 20.3.53, D.M.F. 53. 441.Google Scholar
  132. 149.
    If Lord Wright (supra no. 4 (v)) meant that negligence that was only a cause sine qua non of loss would override the peril, the result would be different: the carrier would be totally liable.Google Scholar
  133. 151.
    See Dimopoulos no. 106 and cases cited to the effect that “la tempête est un événement toujours prévisible.”Google Scholar
  134. 152.
    Supra no. 3 (ii).Google Scholar

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© Martinus Nijhoff, The Hague, Netherlands 1976

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