Abstract
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.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsPreview
Unable to display preview. Download preview PDF.
References
Scrutton p. 436; Carver no. 29o; Rodière no. 764; Marais, Transports Internationaux p. 133.
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.
Sandeman v. Scurr (1866) L.R. 2 Q.B. 86.
Tempus Shipping v. Dreyfus [193o] i K.B. 69g, 7o5 per Wright J. He held further that, if the state of the coal did amount to such a defect, it was not in any event latent in the case before him.
Thomson v. Micks, Lambert & Co. (1933) 47 Ll.L.R. 5, 55 per Branson J. who also noted (ibid):While it is not conclusive, on the one hand, to say ‘Lloyd’s Register surveyors passed this ship over and over again, and therefore you are bound to hold that the hatch covers were sufficient,’ similarly, it seems to me that it is not conclusive, on the other hand, to say: ’If you turn up Lloyd’s Register rules you will find that to the extent of one-sixteenth of an inch or a quarter of an inch here, or an inch or two somewhere else, this ship does not comply with the rules which Lloyd’s Register have laid down.“’
Cosmopolitan Shipping v. Hatton & Cookson (1929) 35 L1.L. R. 117, 125 per Scrutton L.J.; Walker v. Dover Navigation (1950) 83 LI.LR. 84.
V. Markianos p. 132.
Cf. The Amstelslot [1962] 1 Lloyd’s Rep. 539, 546. Although the carrier did plead latent defect, the court seemed to think it necessary that the defect have existed at the beginning of the voyage. It has been submitted (supra ch. 12 no. 2 (i)) that this is an error resulting from failure to distinguish the “short route” from the “long route.”
See, for example, Kolente, Paris 7.7.43 Gaz. Pal. 43.2.123: finding that the defect should have been discovered and was thus not latent, the court underlined its obvious existence when tests were made after the voyage; this, the court thought, nullified evidence that the equipment in question had worked well on previous voyages. See also Tamara, Aix 4.6.57, D.M.F. 58.337; Merkurius, Comm. 21.10.63, D.M.F. 64. 14
For example, The Timothy Dwight, T.C. Marseille 7.7.50, D.M.F. 51.398, where it appeared that “le défaut d’étanchéité du deep tank résultait d’une mauvaise manoeuvre des portes en cours de remplissage,” and was thus excepted as a faute nautique.
Oceanic, 23.4.53, D.M.F. 53.451. See also Général Dufour, Aix 6.1.60, D.M.F. 61.25; Zit, Aix 9.6.59, D.M.F. 59.534, which was cassé on appeal, but not because the court had been wrong on this point.
No. 756.
Oceanic, Douai 23.4.53, D.M.F. 53.451; Compiègne, T.C. Seine 25.1.54, D.M.F. 54.486; Paris 24.10.55, D.M.F. 56.153; Herculis, Paris 5.2.62, D.M.F. 62.345; Julia C. Ertel, T.C. Paris 15.5.68, D.M.F. 69. 234.
Infra eh. 15 no. 2.
Supra ch. 12 no. 4 (iii).
In the Kongshavn, Rouen 7.11.68, D.M.F. 69.157, the court allowed the carrier the protection of a clause similar in substance to art. IV r. 1, even though the moment at which the defect originated was uncertain. In Leesh River Tea v. B.I.S.N. [1967] 2 Q.B. 25o, counsel for the carrier argued (1) that art. IV r. x was an ordinary exception (supra ch. 12 no. 4 (ii)) and (2) that the exonerating event (unseaworthiness) could originate at any time during the voyage. The court’s rejection of argument (1) necessarily involved rejection of argument (2).
Art. III r. 1 and art. IV r. 1. set out supra eh. 12 no. x.
Supra eh. r2 no. 6 (iv). The common law rule is not alien to the French lawyer, however,see art. 297 c. corn. Moreover it has been faithfully applied in the guise of English charter-party terms: Bourgogne, Sent. 27.2.61, D.M.F. 61.749.
Western Canadian S.S. v. Canadian Commercial Corp. (1958) x4 D.L.R. (2d.) 487, 490 (Canada); The Muncaster Castle [1959] x Q.B. 74 (McNair J.); The Makedonia [1962] x Lloyd’s Rep. 316, 338; The Amstelslot [1963] 2 Lloyd’s Rep. 223, 234 per Ld. Devlin.
The Bryntawe (1928) 32 L1.L.R. 155; Thomson v. Micks, Lambert (1933) 47 L1.L.R. 5; The City of Alberni [1947] 2 D.L.R. 647 (Canada); The Assunzione [1957] 2 Lloyd’s Rep. 469; Fisons Fertilizers Ltd. v. Thomas Watson Ltd. [1971] 1 Lloyd’s Rep. 141.
] 2 Q.B. 250.
Ibid. p. 275.
See also Sellers L.J. ibid. p. 270. In the court below McNair J. ([1966] 1 Lloyd’s Rep. 450, 457) reached the same conclusion on the basis that this was the common law rule and that it had not apparently been changed by the Convention.
De Carvalho v. Kent Line (195o) 26 M.P.R. 77, 87 per Dunfield J. (Newfoundland Supreme Ct.) The Farrandoc [1967] 2 Lloyd’s Rep. 276, 284 per Noel J. (Canada Exchequer Ct.), see also Silcock v. Maritime Lighterage (1937) 57 Ll.L.R. 78; Brown & Williamson v. S.S. Anghyra (1957) 157 Fed. Supp. 737 (U.S. District Ct.). A similar decision in Denmark is The Oklahoma Ugeskrift for Retsvaesen 63.759, also reported in D.M.F. 64313.
De Carvalho v. Kent Line (1951) 32 M.P.R. 282, 305 per Dunfield J.
Cosmopolitan Shipping v. Hatton & Cookson (1929) 35 Ll.L.R. 117, 128, cited and applied in Canada in Western Canadian S.S. v. Canadian Commercial Corp. (1958) 14 D.L.R. (2(1.) 487.
) 35 L1.L.R. 117, 125.
De Carvalho v. Kent Line (1951) 32 M.P.R. 282, 300 per Winter J.
See supra ch. 12 no. 5 (ii).
Ivamy, 1959 Current Legal Problems at p. 214; see also De Carvalho v. Kent Line (1951)
M.P.R. 282, 305 per Dunfield J.
De Carvalho v. Kent Line (1951) 32 M.P.R. 282, 301 per Winter J.
See the cases cited supra no. 2 (ii).
De Carvalho v. Kant Line (1951) 32 M.P.R. 282, 301 per Winter J.
See infra no. 3 (ii).
Phillips v. Clan Line (1943) 76 L1.L.R. 58, 61 per Atkinson J.; Dominion Tankers v42 Shah, p. III.
De Carvalho V. Kent Line (1951) 32 M.P.R. 282,305–6 per Dunfield J; also Ivamy, 1959 Current Legal Problems at pp. 214–5.
Infra no. 5.
See, for instance, Cosmopolitan Shipping v. Hatton & Cookson (1929) 35 L1.L.R. 117, 126 per Scrutton L.J.
In Cosmopolitan Shipping v. Hatton & Cookson (Igzg) 25 Ll.L.R. 117, the trouble was perennial — a broken rudder, and an argument based on the principle of res ipsa loquitur was specifically rejected by Greer L.J. (at p. 129). It is true that this particular judge placed too heavy a burden of proof on the claimant (see supra no. 3 (i)), but no member of the court was prepared to assume that the case against the carrier proved itself.
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.
Scrutton (17th. ed.) p. 87: Ajum Goolam Hossen & Co. v. Union Marine Ins. Co. [Igor] A.C. 362, 366 per Ld. Lindley.
Pickup v. Thames & Mersey Ins. (1878) 3 Q.B.D. 594, 599.
See, for instance, The City of Alberni [1947] 2 D.L.R. 647.
Silcock v. Maritime Lighterage (1837) 57 Ll.L.R. 78.
See, for instance, Angliss v. P. & 0. [1927] 2 K.B. 456; Western Canadian S.S. v. Canadian Commercial Corp. (1958) 14 D.L.R. (2d) 487, 49o. It does not automatically follow in such a case that the defect amounts to unseaworthiness or, if it does, that the carrier has not exercised due diligence; see, for instance, Bradley v. Federal S.N. (1926) 24 L1.L.R. 446, 454 per Scrutton L.J.
See, for instance, Cosmopolitan Shipping v. Hatton & Cookson (1929) 35 L1.L.R. 117.
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.
See, for instance, De Carvalho v. Kent Line (195o) 26 M.P.R. 77, 110–1 per Dunfield J.; Brown & Williamson v. S.S. Anghyra (1957) 157 F. Supp. 737, 75o.
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).
For example Kongshavn, Rouen 7.11.68, D.M.F. 69.157; for the same rule for exceptions generally, see Cap Farina, T.C. Sète 13.6.67, D.M.F. 68.113 (carrier unable to plead faute nautique because he could not show that the faute had caused the loss). Vikingland, T.C. Marseille 18.2.72, D.M.F. 72.492; Forwarder, T.C. Paris 23.6.71, D.M.F. 72.308. Also Ripert nos. 1714 ff.; Rodière nos. 616 ff., 756 ff.
Scrutton pp. 203, 218; Carver no. 154.
See supra ch. 12 no. 5 (ii).
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.
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.
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.
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.
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.).
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.
As to when unseaworthiness will amount to breach of condition, see The Hong Kong Fir case [1962] 2 Q.B. 26.
Generally, see Hain S.S. v. Tate & Lyle (1936) 41 Com. Cas. 35o. Adde references supra.
See Thorley v. Orchis S.S. [19o7] I K.B. 66o.
See the deviation cases of Leduc v. Ward (1888) zo Q.B.D. 475, Glynn y. Margetson [ 1893 ] A.C. 351 and Hain S.S. v. Tate & Lyle (1936) 41 Com. Cas. 35o and the reliance placed on them in the Suisse Atlantique case [1967] 1 A.C. 361.
] I W.L.R. 936.
See the Suisse Atlantique case [1967] 1 A.C. 361, 406 per Ld. Reid.
Generally see Coote, Exception Clauses.
Suisse Atlantique case [1967] 1. A.C. 361, 431 per Ld. Wilberforce; Jenkins, 1969 Camb. L.J. 251, 266; Coote, op. cit., and 1970 Camb. L. J. 221; Trade Inc. v. Iino [1973] 1 W.L.R. 210.
] 1. A.C. 361.
This is clearly demonstrated by Devlin, 1966 Camb. L.J. 192, 210 ff.
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.
See, for instance, the illustration given by Jenkins, 1969 Camb. L.J. at 268.
] 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.”
See also Jenkins, 1969 Camb. L.J. 251, 265 note 5o.
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.
Weld-Blundell v. Stephens [192o] A.C. 956, 98o per Ld. Sumner, cited with approval by Treitel, Law of Contract, p. 647.
Suisse Atlantique case [1967] 1 A.C. 361, 398 per Ld. Reid.
Scrutton p. 442; Rodière no. 676.
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.
Gosse Millerd v. Canadian Govt. Merchant Marine [ 1929 ] A.C. 223, 241 per Ld. Sumner; Scrutton p$1437; Carver no. 154 and cases cited at n. 33.
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.
Artésien, T.C. Seine, 4.22.59, D.M.F. 60. 359.
Ripert no. 1719.
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.
Djoliba, Aix 11.10.60, D.M.F. 62. 276.
o] A.C. 997, 1003 ff.
No. xo6; see also nos. 1422ff.; cf. Scrutton p. 88 n. 5.
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.
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).
See also The Isis (1934) 48 Ll.L.R. 35, 38 ( U.S. Supreme Court ).
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.
Supra ch. 11 no. 2.
Devlin, 1966 Camb. L.J. 192, 209.
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.
Dimopoulos no. 95a.
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.
Generally, see Carver nos. 165 ff.
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.
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.
Garsten Co. v. Hickie (No. 2) (1886) 18 Q.B.D. 17.
Pink y. Fleming (1890) 25 Q.B.D. 396.
Nos. 165 ff.
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.
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.
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.
See, for instance, Ripert nos. 1714 ff.; Rodière nos. 626 ff. and 756 ff.
The same is true when it is a question of defining obligations, see supra no. 4 (iii).
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.
No. 1714.
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.
Supra no. 4 (y). This is true of cases adhering to the theory of équivalence de conditions.
Marty et Raynaud II vol. r no. 480.
Marty et Raynaud II vol. 1 nos. 45o and 489.
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.
Mazeaud, Leçons t. 2 nos. 562, 566 and 569.
Marty et Raynaud II vol. 1 no. 481.
Planiol et Ripert t. VII nos. 862 and 864.
Mazeaud, Leçons t. 2 no. 566.
Mazeaud ibid.; see also Marty et Raynaud II vol. I no. 480.
Planiol at Ripert t. VII no. 862.
Generally see Marty et Raynaud II vol. I no. 48o and references cited.
) 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.
Discussed generally supra no. 4 (v).
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.).
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 ).
Planiol et Ripert t. VII no. 862.
Generally, see Marty et Raynaud II vol. r no. 480 and references cited.
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.”
Supra no. 4 (v).
Comm. 19.6.52, S. 52.1.89.
See the findings of fact of T.C. Alger, 12.6.47, D.M.F. 49. 151.
Cf. Alger, 20.3.53, D.M.F. 53. 441.
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.
See Dimopoulos no. 106 and cases cited to the effect that “la tempête est un événement toujours prévisible.”
Supra no. 3 (ii).
Rights and permissions
Copyright information
© 1976 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Clarke, M.A. (1976). Proof That the Vessel was Defective. In: Aspects of the Hague Rules. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8854-8_13
Download citation
DOI: https://doi.org/10.1007/978-94-011-8854-8_13
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-011-8199-0
Online ISBN: 978-94-011-8854-8
eBook Packages: Springer Book Archive