Author: Professor Andrew Tettenborn

Professor Andrew Tettenborn joined Swansea Law School and the Institute of International Shipping and Trade Law in 2010 having previously taught at the universities of Exeter (Bracton Professor of Law 1996-2010), Nottingham and Cambridge. Professor Tettenborn is a well-known scholar both in common law and continental jurisdictions. He has held visiting positions at Melbourne University, the University of Connecticut and at Case Law School, Cheveland, Ohio. He is author and co-author of books on torts, damages and maritime law, and of numerous articles and chapters on aspects of common law, commercial law and restitution.

Nineteen years on — the Prestige saga, continued

Nearly twenty years after the VLCC Prestige broke up and sank off the Galician coast, spreading filth far and wide, Spain and France remain locked in battle with the vessel’s P&I club Steamship Mutual. Put briefly, they want to make Steamship pay out gazillions on the basis of judgments they have obtained locally on the basis of insurance direct action statutes. Steamship, by contrast, refers to the Prestige’s P&I entry, and says that both states are bound by “pay to be paid” clauses and in any case have to arbitrate their claims in London rather than suing in their own courts.

The background to the latest round, The Prestige (Nos 3 and 4) [2021] EWCA Civ 1589, is that Steamship, having got a declaratory arbitration award in its favour substantiating the duty to arbitrate, which it has transmuted into a judgment under s.66 of the Arbitration Act 1996, now wants to take the battle to the enemy. It wants (a) to commence another arbitration claiming damages for breach of the original arbitration agreement, reckoned by the damages and costs represented by the court proceedings in France and Spain; (b) damages for those states’ failure to abide by the declaratory award; and (c) damages for failure to abide by the s.66 judgment. Spain and France resist service out on the basis that they are entitled to state immunity, and that the claims based on the award and the judgment must in any case fail.

The High Court held, in two different proceedings (see here and here), that sovereign immunity did not apply; that claims (a) and (b) succeeded; and that claim (c) failed because of the effect of the insurance provisions in what is now Articles 10-16 of Brussels I Recast (this being, of course, a pre-Brexit affair). Both sides appealed, and the appeals were consolidated.

On sovereign immunity the Court of Appeal have now sustained the judgment of non-applicability and as a result allowed claim (a) to go ahead. They have equally upheld the first instance judgment against Steamship on claim (c): although in name a claim under a judgment this is, it says, still in substance a claim by an insurer against its insured which, under what is now Art.14 of Brussels I Recast, can only be brought in the domicile of the latter. On claim (b), however, it has held (contrary to an earlier suggestion in this blog – nostra culpa, we can’t be right every time) that while the jurisdiction rules of the Brussels regime do not stand in the way, the claim is bound to fail. The award being merely declaratory, there can be no duty to perform it because there is nothing to perform, and hence no liability for disregarding it.

The arbitration will now therefore go ahead. Assuming it leads to an award in Steamship’s favour, Steamship will then no doubt seek New York Convention enforcement and/or get a s.66 judgment which they will oppose to any attempt by France and Spain to get judgment here, and doubtless also try to weaponise in order to get their Spanish and French costs back. (Meanwhile they may rather regret not having asked in the original arbitration proceedings for a positive order not to sue in France or Spain, rather than a mere declaration: but that’s another story.)

There’s little to add at this stage. But there is one useful further confirmation: s.9 of the State Immunity Act, removing state immunity in the case of a written agreement to arbitrate, applies not only to a direct contractual obligation to arbitrate, but also to an indirect duty to do so Yusuf-Cepnioglu-style. Useful to know.

Will France and Spain now come quietly, thus putting an end to this saga (which has already appeared in this blog here, here, here, here and here)? It’s possible, but We’re not betting. We have a sneaking suspicion that the events of November 2002 may well continue to help lawyers pay their children’s school fees for some little time yet.

Dock brief

In July last year we noted the holding of Teare J that Holyhead Marina came within the dock-owner’s right to limit liability under s.191 of the Merchant Shipping Act 1995. The issue arose because the Marina faced multiple claims from yacht owners following devastation wrought by Storm Emma in 2018.

We approved then, and are happy to say that the Court of Appeal does now. Today in Holyhead Marina v Farrer [2021] EWCA Civ 1585 it confirmed Teare J’s conclusion that while not a dock, the Marina was a landing place, jetty or stage (which are included in the definition of places entitled to limit), and that there was no reason whatever to limit the entitlement to purely commercial port facilities. ‘Nuff said. Marina owners can breathe a sigh of relief, while hull insurers no doubt will mull putting up rates yet again on yachts to mark the loss of another source of subrogation rights.

When is a bill of lading not a bill of lading?

If something looks like a duck, but doesn’t swim like a duck or quack like a duck, then there’s a fair chance it may not actually be a duck. A salutary decision last Friday from Singapore made just this point about bills of lading. You can’t simply assume that a piece of paper headed “Bill of Lading” and embodying the kind of wording you’re used to seeing in a bill of lading is anything of the sort if the circumstances show that the parties had no intention to treat it as one.

The Luna [2021] SGCA 84 arose out of the OW Bunkers debacle, the gift that goes on giving to commercial lawyers with school fees to pay. In brief, Phillips was in the the business of acquiring and blending fuel oil in Singapore, and then supplying it to bunkering companies that would ship it out in barges to ocean-going vessels in need of a stem. One of those companies was the Singapore branch of OW. Phillips sold barge-loads of bunkers to OW on fob terms, with ownership passing to OW when the oil went on board the barge, payment due in 30 days and – significantly – not so much as a smell of any retention of title in Phillips.

When OW collapsed in 2014 owing Phillips big money, Phillips, having given credit to the uncreditworthy, looked around for someone else to sue. Their gaze lighted on the barge-owner carriers. For each barge-load, the latter had issued a soi-disant bill of lading to Phillips’s order with the discharge port designated rather charmingly as “Bunkers for ocean going vessels or so near as the vessel can safely get, always afloat”. The modus operandi, however, had been somewhat at odds with everyday bill of lading practice. The bunkers had in normal cases been physically stemmed within a day or so; OW (while solvent) had paid Phillips after 30 days against a certificate of quantity and a commercial invoice; and the bill of lading had remained at all times with Phillips, and no question had ever arisen of any need to present it to the carriers to get hold of the goods it supposedly covered.

On OW’s insolvency Phillips totted up the bunkers sold by it to OW and not paid for, took the relevant bills of lading out of its safe, and on the basis of those documents formally demanded delivery of the oil from the issuing carriers. When this was not forthcoming (as Phillips knew perfectly well it would not be) Phillips sued the carriers for breach of contract, conversion and reversionary injury, and arrested the barges concerned.

Reversing the judge, the Singapore Court of Appeal dismissed the claim. The issue was whether these apparent bills of lading had been intended to take effect as such, or for that matter to have any contractual force at all. Whatever the position as regards the matters that could be regarded when it came to interpretation of a contract, on this wider issue all the underlying facts were in account. Here the practice of all parties concerned, including the acceptance that at no time had there been any question of the carriers demanding production of the bills before delivering a stem to a vessel, indicated a negative answer.

Having decided that there could be no claim under the terms of the so-called bills of lading, the court then went on to say – citing the writings of a certain IISTL member – there could equally be no claim for conversion or reversionary injury.

This must be correct. Further, given the tendency of businesses to issue documents without being entirely sure of their nature or import, the result in this case needs noting carefully by commercial lawyers throughout the common law world.

A note of caution may also be in order, however, as regards carriers. You must still be careful what documents you do issue. True, the carrier in The Luna escaped liability because all parties accepted that the so-called bill of lading didn’t mean what it seemed to say (indeed, it doesn’t seem to have meant very much at all). But imagine that a bill of lading issued in these circumstances which ends up in the hands of a bank or other financier who is not aware of the circumstances and who in all innocence lends against it. The betting there must be that, as against the financier, the carrier issuing it would take the risk of being taken at its word. And this could be a very expensive risk, particularly since the chances of it being covered by any normal P&I club are pretty remote. Carriers, you have been warned.

Reflective loss — some unfinished business

Life in lugubrious legal lockdown was briefly relieved when last year the Supreme Court in Sevilleja v Marex Financial Ltd [2021] A.C. 39 pruned back the luxuriant growth of the reflective loss rule. To remind you, the reflective loss rule is the principle that you cannot sue X for damages in so far as (i) you are a shareholder in Y Ltd; (ii) Y Ltd could itself have sued X; and (iii) the loss you seek to have made good simply reflects the depreciation in your shareholding due to the damage wrongfully caused by X to Y. Marex had the effect of limiting this restrictive rule rule to claims by shareholders, and scotching the heresy that it extended more generally to any case where X was guilty of a wrong against Y which incidentally cased loss to some third party Z (the claimant in that case being not a shareholder but a mere creditor).

By common consent, Marex left a fair number of loose ends to be tidied up later. In a Cayman appeal today, Primeo Fund v Bank of Bermuda & Ors [2021] UKPC 22, the Privy Council neatly knotted one such, namely that of timing. Granted that a shareholder in Y Ltd cannot sue X for loss reflecting the diminution in his holding in Y Ltd, what is the relevant time: is it when the cause of action arises, or when the claimant sues?

Simplifying as far as possible, Primeo was the Cayman Islands investment arm of the Bank of Austria. In the 1990s it appointed as custodians and investment advisers a couple of companies connected with the Bank of Bermuda, R1 and R2. It was then unlucky enough to be introduced to BLMIS LLC, in effect a unit trust operated by the redoubtable Ponzi fraudster Bernie Madoff. Large sums of money were entrusted by Primeo to BLMIS, most of which (it was found) were immediately appropriated by Mr Madoff and his pals.

In 2007 Primeo’s investment was restructured: its interests in BLMIS were transferred to a separate corporate vehicle, Herald Fund SPC, and in exchange Primeo got shares in Herald. At the same time R1 and R2 agreed to function as custodians and investment advisers to Herald.

Just before Christmas 2008 the Madoff house of cards collapsed, and with it BLMIS. As part of the ensuing litigation, Primeo – itself by then in liquidation – sued R1 and R2 for failing in the years before 2007 to alert it to indications that Mr Madoff was an obvious crook, and thus causing it to entrust more money to him and not to withdraw what it had while the going was good. One defence was reflective loss. R1 and R2 argued that, in so far as Herald could have sued them for loss caused to it (on the basis that they had negligently allowed it to take over assets from Primeo which it was now clear had been of very doubtful value all along), and that because as a result of events in 2007 Primeo’s loss now fell to be reckoned by the diminution of the value of its holding in Herald, the case fell squarely within the reflective loss rule.

The Cayman courts agreed, but the Privy Council was having none of it. It rightly pointed out that since Marex it had been clear that reflective loss was a rule of substantive law, rather than one of damages or title to sue. If so, it followed that the relevant time for seeing whether it applied was the time of the wrong for which compensation was sought. In Primeo, at that time there could have been no question of reflective loss: it was simply a case of allegedly bad advice leading to direct investment in a fraudulent scheme. It was at that moment that Primeo’s rights had crystallised, and nothing that happened later could take them away. It followed that the case was outside the reflective loss principle entirely.

In deciding as it did, the Privy Council had to deal with one awkward decision of the Court of Appeal, Nectrus Ltd v UCP Plc [2021] EWCA Civ 57. In that case, essentially a mirror image of Primeo, a claimant had as a result of allegedly negligent advice invested in securities through a wholly-owned subsidiary. Since the subsidiary could also have sued the adviser, the claim was fairly and squarely within the principle. However, by the time the action was brought the claimant had divested itself of the subsidiary and its holding; and the Court of Appeal had held that this removed the reflective loss bar. However, the Privy Council rightly held that such reasoning could not stand scrutiny, and that Nectrus had been wrongly decided on the point.

It may be that this open discountenancing of Nectrus as wrongly decided will be taken as an express statement that English courts should no longer follow Nectrus, something which since 2016 has been possible in the Privy Council: see Lord Neuberger in Willers v Joyce (No 2) [2018] A.C. 843 at [21]. This blog certainly hopes so. It would be very unfortunate were a judge at first instance to feel constrained to follow Nectrus on the basis that this bound him, whereas a mere decision of the Privy Council (which is not technically an English court) did not. But only time, and the inclination of litigants to put their money where their mouth is, will tell.

Liquidated damages and the ticking clock

Time to get back to the drawing-board, perhaps, if you’re a construction contractor. Suppose you you agree to do work and include this liquidated damages term:

“If CONTRACTOR fails to deliver work within the time specified and the delay has not been introduced by EMPLOYER, CONTRACTOR shall be liable to pay the penalty at the rate of 0.1% of undelivered work per day of delay from the due date for delivery up to the date EMPLOYER accepts such work. …”

Things drag on: there’s some work you never actually do at all, and in the end the employer terminates the contract. Can the employer claim liquidated damages for the period between the due date and termination, on the basis that the meter started ticking when you should have finished the work and only ground to a halt when he walked away and put an end to the whole arrangement? Or is he limited to proving his loss in the ordinary fashion, on the argument that if work is never accepted (ex hypothesi the case where it was never done in the first place), the clause makes no sense and therefore has to fall away?

In Triple Point Technology, Inc v PTT Public Co Ltd [2021] UKSC 2 the Supremes, reversing the Court of Appeal, chose the former solution. It was, it said, more commercial that once the meter had begun to tick the accrued rights to payment that arose de die in diem as a result should be preserved, and would not be liable to disappear in a puff of legal smoke if at some time in the future it became clear that the work would never be done. Furthermore, said the court, the opposite answer would create a perverse incentive: assuming the liquidated damages clause was more profitable to the employer that his right to damages, it might be in the interests of the contractor not to tender performance at all.

This is arguably right, though not incontrovertibly so (one could equally well contend that if the parties had intended that the clause should apply in the case of non-performance it would not have been difficult for them to say “up to the date EMPLOYER accepts such work, or the Contract is terminated by EMPLOYER, whichever shall be the sooner”.) But for future contracts this does not matter to much, since the ball is in the court of contract draftsmen.

Nevertheless, one thing might be worth contemplating for contractors. Having shied away from creating a perverse incentive in the contractor to drag his feet, the UKSC has arguably created an equal and opposite one in the employer. What if, after relations have de facto broken down without the work being done, such that there is now no practical chance of their completion and acceptance, the employer smugly writes to the contractor saying he continues to hold the contract open? True, the courts would no doubt find a way to prevent the clock potentially ticking on until the last trump (see MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] EWCA Civ 789, noted here in this blog). But a couple of months or so of foot-dragging at 0.1% per day would be distinctly profitable if they led to a windfall claim for 6.1% of the relevant price with no questions asked. Indeed a lawyer who didn’t raise this possibility with his clients might face some awkward questions later.

There is, however, a possible straightforward answer. There is much to be said for contractors arguing for the insertion of a bespoke provision applying whenever a right to terminate had arisen in the employer, allowing the contractor to put him to his election and in the absence of an election to terminate to put an end to the running of liquidated damages for delay.

Two other issues arose in the case about the drafting of the damages limitation clause. But these turned very much on the interpretation of the wording used, and are of little general interest. Meanwhile, however, if they don’t like the result in PTT lawyers are on notice to get out their word-processors and go over their precedents.

Strict product liability: information doesn’t count — official (sort of).

If you hoped that since Brexit you could forget about keeping one eye on the decisions of the CJEU, think again. Yesterday in Krone Verlag GmbH (Case 65/20) [2021] EUECJ C-65-20, that court decided an important issue of product liability under the Product Liability Directive, an EU measure that remains essentially in effect here having been enacted as Part I of the Consumer Protection Act 1987.

An Austrian redtop newspaper reader followed the advice contained in an article it ran on home doctoring, and applied a poultice of grated horseradish for several hours to a swollen ankle. She suffered a serious toxic skin reaction because such remedies ought to be applied for only a few minutes. In an unfortunate typo the paper had substituted hours for minutes.

She sued the proprietors, alleging that the newspaper was a defective product under the Directive and that they were therefore strictly liable to her for the consequences of the material contained in it. The owners argued that defective products meant only physically defective products, and did not cover informational defects. Case law in Austria being divided on the point, the Oberster Gerichtshof (ie the Austrian Supreme Court) referred the matter to Luxembourg.

The Euro-court briskly sided with the newspaper proprietors. A bright Euro-line had to be drawn between liability for defective things (strict) and for bad services (fault-based): and a thing did not become defective merely because it happened to be the medium for misleading advice or intellectual content apt to cause harm or injury.

Good news, certainly, for publishers: not only of newspapers, but (more importantly in the commercial context) of instruction books and manuals for maintenance or assembly. These people are it seems now insulated — at least as a matter of our law — from strict liability claims by workers complaining of injury due to incomplete or misleading materials contained in them; they are also safe from strict liability contribution claims by the insurers of employers and others who have been successfully sued by workers and now seek to pass on part of the liability. Equally, in the rare case where mariners rely on a misleading paper chart with untoward results, there can be no question now of liability in the cartographers for injuries resulting.

This judgment was about paper media: but presumably it applies to material on machine-readable media too. It can hardly make a difference whether information is supplied printed on paper or written on to a DVD or USB stick. So there can now be no strict liability suit for instructions supplied on a DVD, or if a DVD fitted into, say, an ECDIS display has a bug in it that causes the display to be wrong. (If material is supplied over the Net no question arises anyway, since then there is no physical medium at all).

A little more difficult is the position of software for operating machines, where there is no element of intellectual content readable by humans: the DVD, for example, that you insert into a device (such as the control unit of a drone submersible) to cause it to run or to transfer necessary operating information to it. If this is misconfigured and causes the device to malfunction and cause injury, is this a defective good? The matter is not absolutely clear. But the stress laid by the Court on the difference between goods and services suggests that here too liability under the Product Liability Directive should be denied. Bad instructions directed at a machine seem more a matter of a defective service than a defect in anything physical: physicality here is confined to the medium on which the instructions happen to be written.

In terms of strict law this decision is not in any way binding on a court in the UK applying the Consumer Protection Act. In practice, however, Brexit or no Brexit, it’s difficult to see the courts here coming to a different conclusion. Particularly since, at least to us at the IISTL, the result reached in Luxembourg seems so overwhelmingly sensible.

Lugano blues?

Unfinished business permeates Brexit. A case in point is jurisdiction and enforcement of judgments. As of the end of last year the regimes which had thitherto featured so large in lawyers’ lives, Brussels I, Lugano and the Brussels Convention, fell away. What remained was the common law rules on jurisdiction and enforcement, tempered only by the much more skeletal 2005 Hague Convention on Choice of Court Agreements, possibly a few hoary pre-EU bilateral treaties on enforcement of judgments, and a vague prospect of the UK joining Lugano as a non-EU state with the agreement of the EU.

The latter possibility has now been scotched; although the other Lugano states (Switzerland, Iceland and Norway) were cool about the idea, the EU Commission on 4 May came out with a de Gaullean Non. For the moment therefore we are stuck with the status quo.

Is this a disaster for UK lawyers, in particular as regards the enforceability of our judgments elsewhere in Europe? Not as much as you might think, even though though it is a reverse, and admittedly proceedings to give effect to judgments may become somewhat untidier and more costly.

First, note that in the EEA outside the EU, Switzerland has a fairly summary native procedure for enforcing foreign (non-Lugano) judgments; and as regards Norway we have dusted off a 1961 agreement and reactivated it.

Turning to the position within the EU, it is worth remembering that one sizeable subset of Commercial Court judgments will remain fairly readily enforceable: namely, those emanating from exclusive English jurisdiction clauses – a very common phenomenon in international trade contracts, and a not unusual one in other cases where English law is chosen by the parties to govern their transaction. This is because the 2005 Hague Convention, already applicable in the UK and throughout the EU (and also in Singapore and Montenegro) mandates enforcement, not only of such clauses, but also of any judgments resulting. The only gaping exceptions here are interim judgments and carriage contracts.

In the mid-term things may moreover get better. The EU is, it seems, well on the way to ratifying the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, a convention to which the UK can also adhere. If and when EU and UK both ratify this Convention, it will require expeditious enforcement of each other’s commercial judgments – and incidentally judicially-approve settlements – rendered against, among others, anyone who has agreed to the jurisdiction of the court rendering the judgment. Its only slightly annoying exception, as in the case of the 2005 Hague Convention, concerns carriage contracts, something apt to exclude bill of lading and voyage charter disputes (though possibly not time charter litigation).

Furthermore, it is worth remembering that the UK’s exclusion from Lugano carries one positive benefit: namely, an escape from its strict and arguably over-dirigiste provisions on jurisdiction. UK courts will thus retain the ability regained in January to decline jurisdiction where there is a good reason to do so without being concerned with the straitjacket imposed by Owusu v Jackson (C-281/02) [2005] E.C.R. I-1383. Conversely, English courts will keep their newly-restored ability to extend to European-domiciled defendants the wide English rules of exorbitant jurisdiction tempered only by forum non conveniens and the court’s discretion to refuse permission to serve out. Further, one suspects much to everyone’s relief, lis alibi pendens in Europe will not, as in Art.27 of Lugano, prevent the English court hearing the case, but merely give it a discretion to do so. The unlamented Italian torpedo fashioned by cases such as Erich Gasser GmbH v MISAT SRL (Case C-116/02) [2003] E.C.R. I-14693, partly but only partly disposed of in Brussels I Recast, will thus be for ever disarmed and its casing given a decent burial on the seabed. And, of course, the anti-suit injunction, a remedy of very considerable use in the practical defence of exclusive jurisdiction and arbitration agreements, is now available against all defendants.

In short, life may be messier for English lawyers without Lugano. But one suspects that it may not be that much unhealthier for the legal business of the English courts. For the moment at least UK Law Plc remains in pretty rude health, and with very decent prospects for the foreseeable future. You’d be foolish if you thought of writing it off any time soon.

No strikeout for Bangladeshi ship scrapping claim: but don’t hold your breath

As we mentioned on this blog last August, these days you have to be careful who you sell an old ship to. In Begum v Maran [2021] EWCA Civ 326 MUK, the English managers of a Liberian ship fit only for scrap, helped arrange her sale to a buyer who paid fairly handsomely. That buyer proceeded (entirely foreseeably) to have her scrapped by a thoroughly dodgy outfit called Zuma in a dangerous and environmentally irresponsible way on a Bangladeshi beach. A worker engaged in stripping the hulk fell to his death. Prospects of recovery from Zuma being low, if for no other reason because of a local one-year statute of limitations during the running of which nothing had been done, his widow sued MUK as of right in England because of its domicile here, alleging negligence. Jay J decided that it was arguable that MUK had owed the man a duty of care, and that the local limitations law might be circumvented, and refused a strikeout. MUK appealed.

The Court of Appeal yesterday allowed the case to go ahead, though only very grudgingly and on a more limited basis than Jay J. The Court was particularly sceptical on the limitation point. Under Rome II, applicable to the claim as it predated Brexit (and still applicable to post-Brexit claims in its domesticated form), the law governing the claim – including on the subject of limitation – was Bangladeshi. This immediately defeated the claimant unless she could escape it. The judge had regarded as possibly plausible a contention that Art.7 of Rome II allowed her to invoke English law because her husband’s death had resulted from environmental damage caused by an event here – namely, MTM’s arrangements for sale of the ship. But this was dismissed on appeal as unarguable: rightly so, since this simply wasn’t an environmental case in the first place. But the court did see it as arguable – just – that the limitation period was so short that an English court might disapply it on public policy grounds under Art.26 of Rome II, and ordered a preliminary issue on the point.

On the substantive points, the widow argued either that MUK had owed her husband a duty of care on the principle of Donoghue v Stevenson [1932] AC 562, or that MUK’s sale of the vessel when it should have known that it was likely to be dangerously demolished had created an immediate danger to her husband’s life and thus engendered a duty in respect of the bad practices of his employers Zuma.

Giving the lead judgment, Coulson J was very sceptical on the first point. This wasn’t, he said, a case of a disposal of a dangerous thing, but rather the furnishing of an opportunity for a third party to be negligent in respect of a thing not inherently perilous. Whether this could give rise to a duty his Lordship thought very doubtful indeed – but still not quite implausible enough to justify an immediate strikeout. Our view is that the doubts were fully justified. We normally expect employers to look after their employees; to put a duty on third parties to police the behaviour of contractors they engaged in that respect is to say the least drastic. Should I really have to scrutinise or supervise the employment practices of the builder I employ to extend my house in case one of his workers is hurt? It seems doubtful.

On the second point, the difficulty (a considerable one) was the general rule that people were not generally made responsible for the wrongs of others, however foreseeable. But, said Coulson J, there were possible exceptions where the danger in question had been created by a defendant. And while it seemed unlikely that this would apply here, the law was not absolutely clear and the prospect of persuading a sceptical judge to recognise a duty of care wasn’t dismal enough to deny the widow the chance to argue the toss. Her prospects might be slim, but she was entitled to chance her arm.

This case will possibly be hailed in the liberal media as an advance in the campaign to make big business in Britain take responsibility for the activities of its dodgier partners abroad. But commercial lawyers know better than to engage in chicken-counting. Remember, the claimant here only avoided a strikeout by the skin of her teeth. Her chances of recovering much over and above a nuisance value or reputation-saving settlement remain, it seems fair to say, pretty slim.

Oh, and one more thing. The ability to sue a UK-domiciled company here as of right disappeared with Brussels I Recast in a puff of celebratory Brexit firework smoke at 2300 hours on 31 December last. It follows that, barring swift adherence by the UK to the Lugano convention (increasingly unlikely by all the indications), any future claimant basing their complaint on events in a far-off land with no ostensible connection to England will now also face the prospect of a forum non conveniens application. This may well have an appreciable chance of success. There is, after all, no immediately apparent reason why the English courts should act as the policemen of work practices worldwide, hoewever much sympathy we may feel for a claimant personally.

In short, the boardrooms of corporate Britain, and even more those of their liability insurers, may well see some sighs of relief, if not discreet socially-distant celebrations, in the next few days.

Apparent good order and condition: apparent to whom?

Shippers are in the nature of things in a position to know rather more about a cargo they are shipping than the carrier who transports them. This can cause problems, as appears from the Court of Appeal’s decision a couple of days ago in Noble Chartering v Priminds Shipping [2021] EWCA Civ 87. The Tai Prize, a 73,000 dwt bulker owned by Tai Shing Maritime, was voyage-chartered by Priminds from time-charterers Noble to carry a cargo of Brazilian soya beans from Santos to Guangzhou in southern China. They presented clean bills of lading to agents who signed it on behalf of the head owners Tai Shing. On arrival the beans were mouldy and damp; this was due to the fact they had been shipped too wet, something which the master had had no reason to suspect, but which Priminds ought to have realised.

The consignees sued Tai Shing in China and got $1 million (in round figures). Tai Shing claimed in turn from Noble, who settled the claim for $500,000. Noble then claimed this sum from Priminds. They relied on their right of indemnity under the charter and an allegation that a dangerous cargo had been shipped, and also argued that the bill of lading that Priminds had sent for signature had been inaccurate, since a cargo which Priminds had had reason to know was over-wet could not be said to have been shipped in apparent good order and condition. The first two claims were rejected by the arbitrator, and nothing more was heard of them; but the arbitrator allowed the third claim. HHJ Pelling on a s.69 appeal held that she had been wrong to do so (see [2020] EWHC 127 (Comm)). Noble appealed.

The issue was simple. “Apparent good order and condition” means good order and condition “as far as meets the eye” (e.g. Slesser LJ in Silver v Ocean SS Co [1930] 1 K.B. 416, 442). But whose hypothetical eye matters here? The master’s, or that of the shipper presenting the bill? The Court of appeal had no doubt: upholding HHJ Pelling, it decided that it was the former. The master here had had no reason to suspect anything wrong with the soya beans in Santos; Tai Shing had there therefore been entitled (and indeed bound) to sign a clean bill. It followed that the clean bill presented had been correct and not misleading, and equally that Priminds had not been in breach.

The arbitrator’s decision on this had, we suspect, been seen by most as heterodox. We agree, and join what we suspect will be the majority of shipping lawyers in welcoming the Court of Appeal’s decision. It is worth making three points, however.

First, this is actually a hard case, even though it does not make bad law. It is difficult not to have some sympathy for the head owners (and through them Noble). On any normal understanding of the law the head owners, having issued entirely legitimate clean bills, were not liable to the receivers at all. It is perhaps tactful not to inquire too closely into how judgment was given against them for $1 million. Priminds, by contrast, were pretty clearly liable for a breach of contract in shipping wet beans. One can see why the head owners’ P&I Club might have felt sore at becoming piggy-in-the-middle and bearing a loss that by rights ought to have fallen on the shippers who escaped scot-free.

Incidentally, it is worth noting one possibility in this respect. A consignee not infrequently has the option, in a case where it is alleged that a clean bill was improperly issued, to sue either the carrier for failing to deliver a cargo in good condition, or his seller for breach of contract in not shipping it in like good condition. It is in most cases more convenient to sue the carrier, if necessary by threatening to arrest the ship at the discharge port. Nevertheless all may not be lost for P&I interests. It seems at least arguable that they may be able to lay off at least some of the risk by bringing contribution proceedings against the seller as a person who, if sued by the consignee, might also have been liable for the same loss. They do not even have to show that they were in fact liable to the consignee: merely that the claim alleged against them was good in law (see s.1(4) of the Civil Liability (Contribution) Act 1978).

Thirdly, Males J in the Court of Appeal at [57] left open the possibility of the liability of a shipper who presented clean bills when he actually knew of hidden defects in the cargo. This will have to remain for decision on another day. But it is certainly hard to have much sympathy for such a shipper: particularly since there are suggestions that a carrier who knows that a cargo is defective cannot legitimately issue a clean bill merely by looking complacently at impeccable outside packaging and then sanctimoniously turning a Nelsonian blind eye to the horrors he knows lurk beneath it (see e.g. Atkinson J in Dent v Glen Line (1940) 67 Ll.L.L.R. 72, 85).

Got a claim against a subsidiary but would like to go against the parent? We have some bad news.

You have an important ongoing contract with X, a subsidiary of a major foreign conglomerate Y. Then Y re-organises its business in a way that doesn’t involve you. X tells you it is regretfully going to break its contract. Obviously you can sue X; but can you sue Y as well? The result of this morning’s deision of the Court of Appeal in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 is that in practice, in the vast majority of cases the answer is No.

Shipping lawyers will know the background. KKK a couple of years ago completed a reorganisation of its business; the container side was merged down into ONE, a joint venture with a couple of ex-competitors. Before the reorganisation, ancillary trucking etc in Europe had been organised by a sub-subsidiary of KKK called K-Euro, which had signed up the claimant JKL to do the haulage. This arrangement was now redundant, and K-Euro told JKL it would not be performing further.

JKL seems to have had a clear breach claim against K-Euro, but was not satisfied with it. History and legal confidentiality do not relate why, but there may have been doubts about K-Euro’s long-term solvency and/or a troublesome limitation of liability clause in the JKL – K-Euro contract. Be that as it may, JKL sued KKK for inducing a breach of contract, and sought to serve out in Japan. Teare J allowed this (see [2019] EWHC 3422 (Comm)); but the Court of Appeal disagreed, on the basis that on the evidence the claim had no realistic prospect of success..

The difficulty was twofold. First, despite the existence of a relationship of corporate control, and indeed substantial overlapping directorships, as between KKK and K-Euro, there was no element of persuasion or inducement by the former of the latter. KKK had not induced or persuaded K-Euro to break any contract. Instead, it had been a matter not so much of persuasion as practical compulsion: KKK had reorganised its business wholesale, with the inevitable (and admittedly entirely foreseen) result that K-Euro was forced to break the old arrangement. That, said the Court of Appeal, was something different. Furthermore, inducement of breach of contract required the defendant in some sense to have aimed his actions against the claimant. But here KKK had in no sense aimed its act at JKL, as might have been the case had it told K-Euro directly to appoint another haulier in its stead: instead, the loss to JKL had been, as it were, mere collateral damage.

This seems right. True, the suggested distinction between persuasion and compulsion needs to be taken with some care: if I threaten never to deal with X again unless X breaks his contract with you, I remain liable under Lumley v Gye (1853) 2 E & B 216, and pointing out that I bullied X rather than gently cajoling him will do me no good at all. Perhaps it is better expressed as the difference between the defendant who at least in some way desires the breach of contract, if only as a means to an end, and is liable, and the defendant who knows the result will be a breach but is otherwise indifferent, who is not. But the precise drawing of the line can be left to another day.

What we are left with is what we said at the beginning. If you contract with a subsidiary company, your chances of visiting the consequences of a breach of contract by the latter on its parent concern are low. As, at least in the view of this blog, they should be. If you contract with one entity, then generally it is to that entity that you should look if something goes wrong: to give you a cause of action against some other part of the corporate pyramid, you should need to show something fairly egregious – like a deliberate subornation of breach. Nothing short of that will, or should, do.