Unreasonable, The Wednesbury Test

The following principles were stated in the judgment of Lord Greene, the Master of the Rolls, in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably."

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Good Order (Apparent Good Order)

In Tokio Marine & Fire Insurance Company Ltd v Retla Steamship Company [1970] 2 Lloyd’s Rep 91:

The term ‘apparent good order and condition’ when used in this Bill of Lading with reference to iron, steel or metal products does not mean that the goods when received, were free of visible rust or moisture. If the shipper so requests, a substitute Bill of Lading will be issued omitting the above definition and setting forth any notations which may appear on the mates' or tally clerks' receipts.

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Ex Turpi Causa Non Oritur Actio(from a dishonorable cause an action does not arise)

Alexander v Rayson [1936] 1 K.B. 169, at p.182:

It is settled law that an agreement to do an act that is illegal or immoral or contrary to public policy, or to do any act for a consideration that is illegal or immoral or contrary to public policy, is unlawful and therefore void. But it often happens that an agreement which in itself is not unlawful is made with the intention of one or both parties to make use of the subject-matter for an unlawful purpose, that is to say, a purpose that is illegal, immoral or contrary to public policy. …

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Krysha (Крыша)

Per Gloster J in Berezovsky v Abramovich [2012] EWHC 2463 (Comm)  at paras 51-54:

51. The concept of krysha (literally Russian for "roof") played an important role in this case. The meaning of the concept was effectively common ground as between the respective historical experts and the parties. In a society which is not governed by the rule of law, people devise alternative structures to govern their relations, based not on law but on power. Krysha is an alternative system of obligation; the classic product of a society where businessmen cannot count on the protection of the law, either because the law is itself defective or because the administrative and judicial agencies charged with its enforcement cannot be relied upon to do so. Where there is no effective law, or no effective legal process of enforcement, relationships are governed instead by power. It was common ground among the experts that the situation in Russia in the 1990s and early 2000s was that, although there were laws, the legal processes were defective..

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Eligible

Per Lord Chelmsford in Baker v Lee (1860) 8 HL. Cas. 495:

The word ‘eligible’ as here used by the Master of the Rolls is ambiguous. It may mean either "legally qualified" or "fit to be chosen".

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Advance Freight

In Thompson v Gillespy (1855) 5 E & B 209 per Lord Campbell CJ at p.223:

If she sailed on the voyage in a seaworthy condition, the merchant was to advance one fourth of the freight, which he could not recover back if the ship, having so sailed, should afterwards be lost by the perils of the sea, without having delivered any part of her cargo. …But [the shipowner] could not have the benefit of this indemnity unless, at the commencement of the voyage, the ship was seaworthy.

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Running Days

Per Lord Esher in Nielsen v Wait (1885) 16 QBD 67 at p.72:

"Running days" are those days, on which a ship in the ordina course is running. It is true that when they are lay days, they do not take effect under charterparty until the ship has done running; but the parties are describing the days about wh they are talking, namely, days in a port, according to the phraseology which they use with regar to a ship at sea. "Running days" therefore mean the whole of every day when a ship is running.

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Demurrage

Per Lord Esher in Nielsen v Wait (1885) 16 QBD 67 at pp.70-71:

Other days are sometimes given also favour of the charterer, which are called "demurrage days." Those are days beyond the lay day but during which the amount that he has to pay for the use of the ship is a fixed sum, necessarily what it costs the owner to keep his ship, but a fixed sum, which is usually about what it is supposed it costs the owner to keep the ship. This stipulation also is in favour of the charterer, because instead of being involved in a dispute as to what he would have to pay for days during which the ship is kept idle, a sum is fixed, and he knows what he has to pay if he keeps the ship beyond the lay days

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TBOOK (To The Best Of Owner’s Knowledge)

Per Lord Justice Longmore in Transpetrol Maritime Services Ltd v SJB (Marine Energy) BV "Rowan" [2012] EWCA Civ 198 at para 18:

That leaves open the question of the meaning of "TBOOK". It can be said with some force that it is not much of a promise for an owner to say at the time of the agreement that his vessel is approved by specified oil companies "to the best of his knowledge". He must, after all, know perfectly well at that time whether his vessel has been approved or not....

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Idemnity, Insurance Contract(s)

Per Lord Ellenborough in Brotherston v Barber [1816] 5 M & S 418 at p.425:

The great principle of the law of insurance is that it is a contract for indemnity. The underwriter does not stipulate, under any circumstances, to become the purchaser of the subject matter insured, it is not supposed to be in his contemplation he is to indemnify only.

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Working Day

Per Lord Esher in Nielsen v Wait (1885) 16 QBD 67 at p.71:

The days may be described "working days." Now "working days," if that term is used in the charterparty, will vary in diffferent ports; "working days" in the port of London are not the same as working days in some other ports, even in England; but working days in England are not the same as working days in foreign ports, because working days in England, by the custom and habits of the English, if not by the law, do not include Sundays. In a foreign port working days may not include saints' days....

Per Hamilton J in British and Mexican Shipping Co. v Lockett Brothers & Co. [1911] 1 KB 264 at p.273:

… a day of work as distinguished from days for play or rest; and I think it is immaterial whether the days for play or rest are for secular or religious reasons, and whether they are so by the ancient authority of the Church or by the present authority of the state.

Per Lord Devlin in Reardon Smith Line v Ministry of Agriculture [1963] AC 691 at p.736:

          From this it appears that "working" is a description of a type of day...
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Breach of Contract

Per Blackburn J in Poussard v Spiers and Pond (1876) 1 QBD 410 at p.414:

We think that, from the nature of the engagement to take a leading, and, indeed, the principal female part (for the prima donna sang her part in male costume as the Prince de Conti) in a new opera which (as appears from the terms of the engagement) it was known might run for a longer or shorter time, and so be a profitable or losing concern to the defendants, we can, without the aid of the jury, see that it must have been of great importance to the defendants that the piece should start well, and consequently that the failure of the plaintiff's wife to be able to perform on the opening and early performances was a very serious detriment to them...

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Laytime/Demurrage Interrupted

Ropner Shipping Co. Ltd. v Cleeves Western Valleys Anthracite Collieries Ltd., (1927) 27 Ll.L.Rep. 317 by Sargant LJ at p.320:

In order that demurrage may be claimed by the owners they must at least do nothing to prevent the vessel being available and at the disposal of the charterers for the purpose of completing the loading of the cargo.

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Safe Port, Timecharter

G W Grace and Co Ltd v General Steam Navigation Co Ltd [1950] 1 All ER 201, per Devlin J at pp.206-207:

…the charterparty, either on its true construction or by implication, forbids the giving by the charterers of orders outside their powers, and, accordingly, that the giving of an order to sail to an unsafe port is a breach of the charterparty.

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Repudiation of Contract

Mr. Justice Dixon in McDonald v Dennys Lascelles Ltd. (1933) 48 C.L.R. 457 at pp. 476-477 said:

When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.

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Employment and Indemnity Clause

Per Lord Diplock in Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal(The Hannah Blumenthal), [1983] 1 All ER 34 at p.48:

As to the issue whether the consequence of charterers’ orders to be the subject of the indemnity should be ‘direct’ consequences as distinct from mere consequences, the authorities demonstrate that the problem is more apparent than real and is largely a matter of semantics. The exercise essentially involved is the identification of the scope of the indemnity obligation and is thus fundamentally a question of construction. In identifying that scope, certain considerations are relevant. In particular, the parties are unlikely to have contracted for the protection of the Owner against losses which are remote as a matter of causation from the charterer’s order. That is because it is in a commercial setting improbable that a charterer would be prepared to assume the risk of eventualities causally remote from his own orders..

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Crewing (recruiting) policy

Per Hewson J in The Makedonia [1962] 2 Lloyd’s Rep 316 at p.337:

…In my view, the least that should be done is to ensure a careful inspection of the seaman's book, to study the history of the applicant and to question him about it and the reasons why he left his former ships; if, for example, he appears to have sailed one voyage, one owner. The certificate ought to be sighted-the certificate might have been suspended. Inquiry should be made of previous owners and, if the report says "nothing against him", to press for fuller information. I cannot imagine anything more damning than a report from a previous owner that he had "nothing against him." If nothing confidential is forthcoming the man should be interviewed until the interviewer is reasonably satisfied about him and, if he is not satisfied, he should reject him. Such important appointments to such responsible positions call for a proper interviewing and a proper inquiry.

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Lien

Per Grose J in Hammonds and Another, Executors of Blight, against Barclay and Others, Assignees of Fentham a Bankrupt [1802] EngR 107; (1802) 2 East 227 at p.235:

A lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him the person in posssession are satisfied.

By Greer J in Molthes Rederi Akt v Ellerman’s Wilson Line Ltd [1927] 1 KB 710 at 716:
... The lien clause in the charterparty is needed to give the owner a lien in those cases where...

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C.I.F. Contract

Per Scrutton J in Arnold Karberg & Co v Blythe, Green Jourdain & Co [1915] 2 K.B. 379 at 388:

It is not a contract that goods shall arrive, but a contract to ship goods complying with the contract of sale, to obtain, unless the contract otherwise provides, the ordinary contract of carriage to the place of destination and the ordinary contract of insurance of the goods on that voyage, and to tender these documents against payment of the contract price.

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Bailee, Liabilities for Damage

Per Grove J in Lilley v Doubleday (1881) 7 QBD 510 at p. 511:

The defendant was entrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as at the other.

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Incompetence

In Papera Traders Co. Ltd. v Hyundai Merchant Marine Co. Ltd (The Eurasian Dream) [2002] EWHC 118 (Commercial) Cresswell J said at para 129:

(3) Incompetence is to be distinguished from negligence and may derive from:

(a) an inherent lack of ability.
(b) a lack of adequate training or instruction: e.g. lack of adequate fire- fighting training.

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Berth and Port Voyage Charters

In The Finix [1975] 2 Lloyd’s Rep. 415 Donaldson J in the course of his judgment, put the matter of a berth or a port charter as follows (at p.422):

It is well settled that where the destination is a named berth or there is an express right to nominate a berth, the charter is a berth charter-party, i.e., the ship is not 'arrived' before she reaches the berth. It is also well settled that where the destination is an area of wider extent, but there is an implied right in the charterer to nominate the berth or other discharging spot, the ship is 'arrived' when she reaches the appropriate part of the wider area and not when she later reaches the discharging berth or spot.

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Approbation and Reprobation

Heyman v Darwins Ltd. [1942] AC 356, per Lord Wright at p.388:

The authorities, I think, sufficiently dispose of an argument based on the maxim that a party cannot both approbate and reprobate a contract, at least in reference to an ordinary submission as contrasted with a clause making an award a condition precedent, so that it is not merely collateral or procedural, but essential to the obligations of the contract. Like all maxims of the law, that maxim, though it has a proper but very limited application, is too vague and general to be applied without careful limitation, otherwise it is apt to be misleading, as many cases have shown.

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Frustrating Event

In Bank Line v Arthur Capel & Co [1919] A. C. 435, Per Lord Sumner:

... Rights ought not to be left in suspense or to hang on the chances of subsequent events. The contract binds or it does not bind, and the law ought to be that the parties can gather their fate then and there. What happens afterwards may assist in showing what the probabilities really were, if they had been reasonably forecasted, but when the causes of frustration have operated so long or under such circumstances as to raise a presumption of inordinate delay, the time has arrived at which the fate of the contract falls to be decided.

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Gratuitous Undertaking

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, per Lord Morris of Borth-y-Gest:

In his speech in Banbury v Bank of Montreal [1918] AC 626 Lord Atkinson (at p. 689) said:

“It is well established that if a doctor proceeded to treat a patient gratuitously, even in a case where the patient was insensible at the time and incapable of employing him, the doctor would be bound to exercise all the professional skill and knowledge he possessed, or professed to possess, and would be guilty of gross negligence if he omitted to do so”.

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Loading

Per Earl of Selborne LC, giving the main speech in Grant " Co v Coverdale, Todd " Co (1884) 9 App Cas 470 at 475-476:

There are two things to be done – the operation of loading is the particular operation in which both parties have to concur.

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Accidents Preventing the Loading

Per Earl of Selborne LC, giving the leading judgement in Grant & Co v Coverdale, Todd & Co (1884) 9 App Cas 470 at 475-476:

This exception in the contract being limited to "accidents preventing the loading," the only question is, what is the meaning of "loading"? and whether this particular frost did, in fact, prevent the loading. There are two things to be done – the operation of loading is the particular operation in which both parties have to concur. Taken literally it is spoken of in the early part of this charterparty as the thing which the shipowner is to do. The ship is to "proceed to Cardiff East Bute Dock, and there load the cargo." No doubt, for the purpose of loading, the charterer must also do his part; he must have the cargo there to be loaded, and tender it to be put on board the ship in the usual and proper manner.

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Incorporation by Custom

McCutcheon v David MacBrayne Ltd [1964] 1 WLR 430, per Lord Devlin:

The fact that a man has made a contract in the same form 99 times (let alone three or four times which are here alleged) will not of itself affect the 100th contract in which the form is not used. Previous dealings are relevant only if they prove knowledge of the terms, actual and not constructive, and assent to them. If a term is not expressed in a contract, there is only one other way in which it can come into it and that is by implication.

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Incorporation by Notice

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, per Bingham LJ.:

The well known cases on sufficiency of notice are in my view properly to be read in this context. At one level they are concerned with a question of pure contractual analysis, whether one party has done enough to give the other notice of the incorporation of a term in the contract. At another level they are concerned with a somewhat different question, whether it would in all the circumstances be fair (or reasonable) to hold a party bound by any conditions or by a particular condition of an unusual and stringent nature.

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Incorporation by Signature

In L'Estrange v Graucob [1934] 2 KB 394, Scrutton LJ said:

When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.

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Justice

In Air Canada v Secretary of State for Trade (No. 2), [1983] 1 All ER 910, Lord Wilberforce inferred at p. 919 that:

In a contest purely between one litigant and another, such as the present, the task of the court is to do ... justice between the parties ... There is no higher or additional duty to ascertain some independent truth.

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Mareva Injucntion

Mareva Compania Naviera SA v International Bulkcarriers SA ( The Mareva), [1980] 1 All ER 213, per Lord Denning MR at p.215:

If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.

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Misdelivery (under Bill of Lading)

Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] AC 576, per Lord Denning:

The exemption, on the face of it, could hardly be more comprehensive, and it is contended that it is wide enough to absolve the shipping company from responsibility for the act of which the Rambler Cycle Company complains, that is to say, the delivery of the goods to a person who, to their knowledge, was not entitled to receive them. If the exemption clause upon its true construction absolved the shipping company from an act such as that, it seems that by parity of reasoning they would have been absolved if they had given the goods away to some passer-by or had burnt them or thrown them into the sea. If it had been suggested to the parties that the condition exempted the shipping company in such a case, they would both have said: "Of course not." There is, therefore, an implied limitation on the clause, which cuts down the extreme width of it: and, as a matter of construction, their Lordships decline to attribute to it the unreasonable effect contended for.

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Meaning and Intention of the Words

Per Lord Morris of Borth-Y-Gest in Koufos v C Czarnikow Ltd (The Heron II), [1967] 3 All ER 686 at p.697:

When consideration has been given to the meaning and intention of the words used in the judgment in Hadley v Baxendale it has so often been manifest that words which are but servants to convey and express meanings - cannot always be servants of precision and may sometimes be given a dominance which is above their status. If "language is the dress of thought", it is the thought that must be understood.

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Misrepresentation, Time Bar

In Leaf v International Galleries [1950] 2 KB 86, Jenkins LJ stated at pp. 92-93:

It is true that this was a representation of great importance, which went to the root of the contract and induced him to buy. Clearly if, before he had taken delivery of the picture, he had obtained other advice and come to the conclusion that the picture was not a Constable, it would have been open to him to rescind. It may be that if, having taken delivery of the picture on the faith of the representation and having taken it home, he had, within a reasonable time, taken other advice and satisfied himself that it was not a Constable, he might have been able to make good his claim to rescission notwithstanding the delivery. That point I propose to leave open. What in fact happened was that he took delivery of the picture, kept it for some five years, and took no steps to obtain any further evidence as to its authorship…

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Negligent Words and Negligent Acts

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, per Lord Reid:

The most obvious difference between negligent words and negligent acts is this. Quite careful people often express definite opinions on social or informal occasions even when they see that others are likely to be influenced by them; and they often do that without taking that care which they would take if asked for their opinion professionally or in a business connection.

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Afloat, Where the Vessel Can Always Lie Safely

Per Donaldson J inThe Evaggelos TH.[1971] 2 Lloyd’s Rep 200 at 204:

...I think that it is concerned exclusively with the marine characteristics of the discharging place, and requires that the vessel shall at all times be water-borne and shall be able to remain there without risk of loss or damage from wind...

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As (So) Near Thereto as She may Safely Get

Lord Watson in Dahl v Nelson, Donkin, and Others, (1881) 6 App. Cas.38, stated at p.57 that

I think it may be taken as settled law, that when, by the terms of a charterparty, a loaded ship is destined to a particular dock, or as near thereto as she may safely get, the first of these alternatives constitutes a primary obligation; and, in order to complete her voyage, the vessel must proceed to and into the dock named, unless it has become in some sense "impossible" to do so.

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Rules of Construction

Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71 per Salmon LJ:

…rules of construction are merely our guides and not our masters; in the end you are driven back to construing the clause in question to see what it means.

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Rule of Law

Aries Tanker Corporation v Total Transport Ltd (The Aries), [1977] 1 All ER 398 per Lord Wilberforce at p.403:

A rule is nonetheless capable of being a rule of law, though no reason can be given for it.

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Balance of Probabilities

In Lancaster v Blackwell Colliery Co Ltd (1919), 89 LJKB 609 Lord Birkenhead LC said at p.611:

If the facts proved give rise to conflicting inferences of equal degrees of probability, so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon him. But where the known facts are not equally consistent, but there is ground for comparing and balancing probabilities, as to their respective value, and a reasonable man might hold that the conclusion for which the applicant contends is the more probable, then the arbitrator is justified in drawing an inference in his favour.

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Not Unlikely

Per Lord Reid in Koufos v C Czarnikow Ltd (The Heron II ) [1967] 3 All ER 686 at p.690 and pp.694-695:

I use the words "not unlikely" as denoting a degree of probability considerably less than an even chance but nevertheless not very unusual and easily foreseeable.

Arbitration, tribunal shall act fairly and impartially

Waller LJ in The Magdalena Oldendorff [2008] 1 Lloyd’s Rep. 7 at para 42 stated as follows:

If an arbitrator appreciates that a party has missed a point then fairness requires the arbitrator to raise it so that the party can deal with it.

Per Coulson J in F Ltd. v M Ltd. [2009] 1 Lloyd’s Rep. 537 at para 33:

It is not, I think, for the arbitral tribunal to hunt through the contract and find other ways in which the claimant's claim might be put, and then offer the claimant a further opportunity to make submissions on any provision thereby identified. In an adversarial system it is for the claimant to identify the ways in which it puts its case.