In the debut test (for the ground) at Holkar,
with only two wickets falling on day 2 –there was a natural expectation that
visitors would do well – and they did well too with an opening partnership of
118. Latham and Guptill where playing
well – and then Ravichandran Ashwin
found Latham's leading edge. From then
it was the mastery of the man, who is staking claims for the best spinner to
represent India –t he land of spinners. With
six wickets, and a hand in two run-outs,
he had contributed to all but two of New Zealand's wickets. Kane Williamson is
struggling to read him. In every innings in this series, Ashwin has gotten
Williamson in a manner that would have fellow off-spinners going weak in the
legs. This was bowled wide that Umpire would have felt the desire to show wide,
had it not nipped back so much !!
It
was my desire to make a post on NZ (White Ferns) medium facer - Amy Satterthwaite, and her feat of taking 4
wickets making Proteas eat humble pie that stumbled upon this case interesting
marine case law. For the uninformed
(about Marine and logistics) – a Bill of lading is the most important document,
issued by a carrier (or his agent) to acknowledge receipt of a shipment of
cargo. This is a negotiable document
serving the functions of being a conclusive receipt of entrusted cargo, that of
cargo having been loaded on the conveyance and – the document of title to the
goods. It is assignable !.
My
search on the Kiwi pacer led me to a case on contract law decided by the Privy
Council. It is - New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite & Co.
Ltd. [1974], or The Eurymedon, one on contract law by the Judicial Committee of
the Privy Council. The Council gave conditions as to when a third party may
seek protection of an exclusion clause in a contract between two parties.
The
subject matter was cargo – an expensive
drill shipped from Liverpool to Wellington aboard vessel “Eurymedon”. The case brought about on appeal by New Zealand Shipping Co against the respondent - the consignee of the drill. The appellant, carried out all stevedoring work in
Wellington, in respect of the ships owned by the carrier. The carrier was a
wholly owned subsidiary of the stevedore. The drill was damaged during
unloading as a result of the stevedore’s negligence.
The
carriage document – the Bill of lading stipulated that servants or agents of
the carrier would not be held liable to any shipper, consignee or owner for
loss or damage of the goods. This clause
is often referred to as "Himalaya clause". Though the drill was damaged whilst unloading
due to negligence, the stevedores claimed protection of the immunity clause in
the contract between the carrier and Satterthwaite.
illustrative picture ~ from my archives.
The
owner of the machine brought an action against the stevedore after the
limitation period specified in the contract. The stevedore sought to rely upon
the clause in order to escape liability. The owner of the machine argued that
the stevedores could not rely on the clause as they were not privy to the
contract and had not provided them with any consideration.
The
general rule is that a contract between two parties cannot be sued on by a
third person even though the contract is expressed to be for his benefit. The carrier assumed an obligation to transport
the goods and discharge them at port of arrival.
It
was held that the unilateral contract
(between A M Satterthwaite (shippers and original plaintiffs)) and the
stevedores (NZ Shipping Co Ltd) was activated by performance (unloading of the
drill) and relied on the pre-existing contractual obligation between the
stevedores and the carrier to provide good consideration; at the point of
performance the unilateral contract become a mutual (synallagmatic) contract.
Lord
Wilberforce stated: “the Bill of Lading brought into existence a bargain
initially unilateral but capable of becoming mutual, between the shippers and
the appellants (NZ Shipping Co Ltd), made through the carrier as agent. This
became a full contract when the appellant performed services by discharging the
goods. The performance of these services for the benefit of the shipper was the
consideration for the agreement by the shipper that the appellant should have
the benefit of the exemptions and limitations contained in the Bill of Lading.”
In
their Lordships' opinion, consideration
may quite well be provided by the appellant, as suggested, even though (or if)
it was already under an obligation to discharge to the carrier... it was ruled that the stevedores were fully
protected under the damage exclusion clause. The stevedores had protection from
the limitation clause as was available to the original contracting party and
the claimant's action was unsuccessful.
There
are learnings everywhere !
With
regards – S. Sampathkumar
11th
Oct 2016.
No comments:
Post a Comment