Topic One Seaworthiness and Common Venture, chapter 15
HK Fur Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd 1962—cb p24
Issue: whether the obligation of seaworthiness is a condition or warranty
Ratio:
1. Unless provided for expressly in the K, the legal consequence of a breach does not follow automatically from a prior classification of the undertaking as a “condition” or a “warranty”, but depends on the nature of event to which the breach gives rise (intermediate/innominate/indeterminate).
2. A condition is a term, the failure to perform which entitled the other party to treat the contract as at an end. A warranty is a term, breach of which sounds in damages but does not terminate, or entitle the other party to terminate the K. An innominate or intermediate term is one, the effect of non-performance of which the parties expressly or impliedly agree will depend upon the nature and the consequences of breach. (another case, “bunge” case, cb p27)
3. Unseaworthiness is not by itself such a breach of a charterparty as to entitle the charterers to treat the charterparty as thereby repudiated by the shipowners.
4. Seaworthiness is neither a warranty nor a condition, it is an indeterminate contractual undertaking, one breach of which may relieve the charterer of further performance of his undertakings if he so elects, and another breach of which may not give rise to such an event but entitle him only to monetary compensation in the form of damages.
Bunge Corp v. Tradax Export S.A., Panama 1981,
Issue: whether failure of complying with the K, giving notice of probable readiness of the vessel, gives the other party the right to repudiate the K
Ratio:
1. English law recognizes contractual terms which, upon a true construction of the contract of which they are part, are neither conditions nor warranties but are “intermediate”. The question is the construction of the stipulation and the K of which it is a part.
2. Time is considered of the essence in “mercantile” contract
3. It makes commercial sense to treat the clause in the context and circumstances of this K as a condition to be performed b/f the seller takes his steps to comply with the bargain.
4. definition of “condition” and “warranty”—p27, see the definitions above
Topic Two: The Contracts of Carriage, chapter 9
Pyrene v. Scindia—p35
Issue:
1. when the risk passes
2. could the carrier rely on the limitation of liability clause incorporated in the b/l
Ratio:
1. Carriage of goods covers the period from the time when the goods are loaded on to the time when they are discharged from the ship (tackle to tackle).article 1. HW, in the K of sale FOB, the risk passes from the seller to the buyer when the goods pass the rail of the ship.
2. whenever a K of carriage is concluded and it is contemplated that a b/l will be issued, that K is from its creation “covered” by a b/l.—p38
3. explanation of “loading” to include the whole process of loading instead of the particular action of movement itself.
Anticosti [SCC] 1959—p42
Issue: when the b/l filled out but not issued, whether a K of carriage by water of a motor truck was or was not “covered” by a b/l contained in the schedule to the Water Carriage of Goods Act
Ratio: the K was for the carriage to be made under the terms of a b/l, because the b/l is contemplated. Therefore, the liability of the defendant must be limited to $500.
Mediterranean Marine v. Clark [US] 1980—p44
Issue:
1. whether there was an outstanding b/l which extended the COGSA $500 limitation of liability
2. whether the metal shear, as mounted on the wooden skid, constituted a “package” under COGSA
Ratio:
1. the deck receipt incorporated “all” conditions of American Export’s “usual form” of b/l. No b/l issued, but the Hague Rule applies.
Topic Three: Application of the Hague and Hague/Visby Rules—chapter 1,2
Canastrand Industries Ltd. v. The Lara S [Federal Court o
le as carriers seems entirely reasonable under a charter such as that which exists in this case—professor tetley’s argument cited—p111.”
-“under hague and hv, the person who issues the bl contracts both on his own behalf and oon behalf of the other persons who have responsibilities under the hague rules—the contracting carrier contracts in a dual capacity—as principal and as agent. The bl is usally signed by the master or on his behalf, and such a bl normally binds the owner for whom the master acts. The only exception is the master is employed directly by a demise charterer.—-when a time or voyage charterer signs as agent for the master, the owner is still bound. This seems to be true even when the name of the charterer appears in the heading of the bl, as was held by the supreme court of Canada in paterson ss. Ltd v. aluminium co. this is also the position taken by Brandon J. in the Berkshire and the Supreme Court of Canada in the Evie W.—-carriage of goods is effectively a joint venture of owners and charterers, except in the case of a bareboat charter, and, consequently, they should be held jointly and severally responsible as carriers”—-cb 111
measure of damages: “it is agreed that the asmv of the goods was $20 per bale. The 3429 heavily damaged goods were put out for salvage sale. The highest of the few responses which came in, offered less than 13000 for the bales. The plaintiff bought the bales from its insurer for 5 per bale. The plaintiff claims 15 per bale as compensation, i.e., asmv less admv.” Plus surveying fees and handling fees. interests
