1. HST LAW MODULE Session 4
October, 2017
Susan Hawker

2. Basic questions to ask
When was the case decided… we must look at the judgement against the prevailing expectations/judicial and social climates: this case was in 1954.
In which court? The Commercial Court… so a case at first instance.

3. Where to start… ah – difficult here!
What is the cause of action/the wrong?
What are the elements of the wrong?
What is the contentious issue?

4. Who were the parties? The claimant was the fob seller
The defendant was the carrier fixed by the fob buyer…
So- what cause of action might we think this will not be?!

5. Shipment sales recap What are the obligations of the seller?
What are the obligations of the buyer?
What relationship between S and C?
- Surely not contract…?
-Not bailment- why not?
-Negligence…?

6. What happened here? The contract was on fob London terms
The sellers delivered the goods alongside the vessel nominated by the buyer
All arrangements for the carriage of the goods had been made by the buyer
The goods (a fire tender) was dropped by the carrier through carelessness

7. What impact on the sale contract?
The seller must deliver conforming goods
Where are the goods delivered in this sale?
The seller must deliver on time
The seller must pay any agreed port fees/etc
The buyer must accept conforming docs
The buyer must pay for the goods
When do risk and property pass?

8. What position is the seller now in?
He has to deliver the right quality and quantity of goods: case law and SGA 1979
If he cannot do this within the delivery window, he is in breach of contract… and…
The buyer likely can reject the goods, i.e. repudiate the contract (session 7), and at this time he certainly could (session 7)

9. When will the buyer want to repudiate…
When will the buyer want to repudiate…??? Ah- the market rate change issue! The buyer, i.e. the injured party, now has our defendant, i.e. here the seller, over the proverbial barrel. What should the seller do?

10. What cause of action? The sellers sued the carrier in negligence
The damages were ₤966, for repairs
Why did the sellers not sue the carriers in contract???!
To what relationships do the H/HV Rules apply???

11. What did the carriers say?
They admitted liabilty
But claimed amount was limited by H Rules

12. What did the sellers say?
That the goods not loaded and so outside the ambit of the Rules, which were to apply when goods loaded on
That no bill had been issued, so no contract to which the Rules could apply (but see The Rafaela S tomorrow!!)
They were not in a contract with the carriers

13. The fob is a flexible contract
The classic fob: seller to obtain bill for buyer
Other types?
With extended services?
The present case in the third type- only type where could be any doubt about the seller being in a contract with the carrier…

14. If in a contract, do the Rules apply?
According to Devlin, yes…
The Rules to apply to the contract envisaged by the issuing of a shipped bill, and not to the actual bill itself
An elastic approach! The Rules apply to the entire performance by the carrier…

15. …
Whatever the carrier does he shall do it properly and carefully- the entire ambit of the loading process if the carrier takes responsibility for this
The Rules leave the parties free to determine the part which each is to play… not a universal rigidity

16. This last point most contentious
Renton v Palmrya [1956] 2 Lloyd’s Rep 379
The Jordan II [2004] UKHL 49

17. Well done for getting through it all!
A difficult evening
Well done for getting through it all!