In Schenker Ltd v Negocios Europa Ltd [2017] EWHC B20 (QB), High Court, Mercantile Court, Mrs Justice Moulder held that the sea carriage rule in The Aries [1977] 1 Lloyds Rep 334 prohibiting set-off of against freight also applied to claims to freight in carriage by air. The rule had previously been applied to international carriage by road in R H & D International Ltd v IAS Animal Air Services Ltd [1984] 1 WLR 573 and to domestic carriage by road in United Carriers Ltd v Heritage Food Group [1996] 1 WLR 371.
There were also two authorities in Hong Kong Emery Airfreight Corporation v Equus Tricots Limited and RAF Forwarding (HK) Ltd v Wong Angela. Emery Airfreight Corporation which had applied it to carriage by air.
Mrs Justice Moulder concluded:
- It is not the part of the function of judges to alter a well established rule or to say that a different rule is part of our law for the sake of harmonisation. It is the position here that although English authorities have not expressly determined the point in relation to air freight, the approach in the road haulage cases extending the rule from shipping are, in my view, instructive and persuasive. I note the rationale which is advanced in relation to cash flow. However, I do not accept that this alone would justify the extension of the rule into a new area. The rule may well be said to be anomalous when contrasted with other contracts for the supply of goods and services.
- However, given the clear and uncontradicted expert evidence that this is the basis on which the freight market contracts and the fact that it extends to carriage by sea, international and domestic road haulage, it would, in my view, be anomalous to hold that the common law freight rule did not extend to carriage by air. I, therefore, concur with the conclusion reached in the Hong Kong authorities which, though not binding on me, found that there is no logical or sensible distinction between the three means of transport for the purpose of the common law rule.