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.