(eBook PDF) Shipping Law 7th Edition

by Simon Baughen
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Detailed Contents

Preface to the Seventh Edition xv

Acknowledgements xviii
Table of Cases xix
Table of Statutes xlvi
Table of Statutory Instruments and Rules of Civil Procedure li
Table of International Conventions liii
Abbreviations lxxi
Glossary lxxiii

PART 1 DRY SHIPPING 1

1 The Commercial Background 3

International sales of goods 4
Payment against documents 4
Transfer of risk on loading 5
The four functions of the bill of lading 6
Receipt 6
Document transferring constructive possession 6
Document of title 8
A potentially transferable carriage contract 8
Contracts of carriage 8
The bill of lading 9
The voyage charterparty 9
Contracts for the use of the vessel – time charters 10
Modifications to the traditional carriage contract model 10
Use of documents other than the bill of lading 11
Implied contracts 12
Expansion of the contractual service from pure sea carriage 12
Containerisation 13
The cargo claim enquiry 14
Does the claimant have title to sue the defendant? 14
If the claimant does have title to sue, can it bring an action against
the defendant in the English courts? 16
Has the loss or damage occurred during the period for which the
carrier was responsible for the goods? 16
If loss is established during the relevant period, what is the defendant’s
responsibility for it? 16
If the defendant is responsible for the loss, how will damages
be assessed? 17
viii DETAILED CONTENTS

2 Title to Sue 18
Express contracts on loading 19
The voyage charterparty 19
The bill of lading 21
Sea waybills 24
Straight bills 25
Electronic documentation 25
Implied contracts on loading 27
Shipowner’s bill or charterer’s bill? 30
Identity of carrier clauses 31
Shipowner’s position when a charterer’s bill is issued 33
Third-party rights under the initial carriage contract at common law and in equity 34
Agency 34
The Contracts (Rights of Third Parties) Act 1999 35
Trust 36
Suit by the shipper 36
Assignment 37
Implied contract 37
Statutory transfer – the Carriage of Goods by Sea Act 1992 38
The Carriage of Goods by Sea Act 1992 38
Claimants outside the Carriage of Goods by Sea Act 1992 46
Non-contractual actions 47
Bailment 47
Negligence 50
The carrier’s delivery obligation 58

3 Proving Loss or Damage in Transit 61

The evidential hierarchy of bill of lading statements 63
Bill of lading statements and contractual actions against the carrier 64
The common law position 64
Statutory modifications under the Hague and Hague-Visby Rules 69
Tort actions against the carrier 72
Vicarious liability and Grant v Norway 73
Actions against the person who actually signed the bill of lading 73

4 The Terms of the Bill of Lading Contract 75

Common law liability of sea carriers 76
Exceptions clauses and implied obligations 76
Express terms 78
The effect of general incorporation clauses 79
Construing a charter clause in a bill of lading context 79
Construing exceptions clauses 80
Implied terms 82
Seaworthiness 82
Absolute nature of the duty 84
The obligation to take reasonable care of the cargo 89
The obligation to proceed on the contract voyage without deviating 90

5 Statutory Terms of the Bill of Lading Contract 95

The Hague and Hague-Visby Rules 96
The ambit of the Rules 96
Mandatory application 97
 DETAILED CONTENTS ix

Voluntary incorporation 103

Contracting out 103
Third-party reliance on the Rules 109
The content of the Rules 109
The carrier’s duties under Art III 109
The carrier’s defences under Art IV 114
The one-year time limit – Art III(6) and (6)bis 121
The package limitation 124
Containers 126
Loss of the right to limit 129
Shipper’s liability under the Rules 130

6 The Future? The Hamburg Rules and the Rotterdam Rules 133
The Hamburg Rules 134
Ambit of operation 134
Who is liable? 135
Period of responsibility 136
Basis of liability 136
Deck cargo 137
Package limitation 138
Time bar 138
Bar on contracting out 138
Jurisdiction 139
Evidential status of shipping documents 139
The Rotterdam Rules 140
Chapter One – general provisions 142
Chapter Two – scope of application 144
Chapter Three – electronic communication 145
Chapter Four – obligations of the carrier 146
Chapter Five – liability of the carrier for loss, damage, or delay 146
Chapter Six – additional provisions relating to particular stages
of carriage 149
Chapter Seven – obligations of the shipper 151
Chapter Eight – transport documents and electronic
transport records 152
Chapter Nine – delivery of the goods 156
Chapter Ten – rights of the controlling party 158
Chapter Eleven – transfer of rights 160
Chapter Twelve – limits of liability 161
Chapter Thirteen – time for suit 162
Chapter Fourteen – jurisdiction 162
Chapter Fifteen – arbitration 163
Chapter Sixteen – validity of contractual terms 164
Chapter Seventeen – matters not covered by this convention 165
Chapter Eighteen – final clauses 166

7 Combined Transport 167

Unimodal sea carriage 168
‘Received for shipment’ bills of lading 168
Trans-shipment – ‘through’ bills of lading 168
‘Combined’ or ‘multimodal’ transport 170
Document of title? 170
x DETAILED CONTENTS

Competing conventions 172

‘Network’ and ‘uniform’ solutions 173

8 Carriage by Road – the CMR 176

Mandatory application of the CMR 177
The identity of the contracting parties 179
The sender 179
The consignee 179
The carrier 179
Successive carriers 180
The contract documents 181
Information to be included in the consignment note 181
Carrier’s duty to check particulars in consignment note 181
Contractual status of consignment note 182
Non-compliance with Arts 6–9 182
Terms of the contract 182
Contracting out 182
The primary defences 184
The secondary defences 185
Measure of damages 187
Package limitation 187
Jurisdiction and time limits 188

9 Charterparties 190
Introduction 191
The types of charter 191
Voyage charters 191
Time charters 191
Hybrids – the ‘trip charter’ 192
The interest conferred by a charterparty 193
Matters common to both types of charter 193
Charterers’ orders 193
Employment, as opposed to navigational, matters 194
Causation 195
Relationship with other charter provisions 195
The bill of lading 196
Type of cargo to be loaded 205
Permitted ports 206
Shipowners’ obligations in getting to the load port 211
Reasonable dispatch 211
Statements as to vessel’s position and expected readiness 212
The cancellation clause 213

10 Voyage Charterparties – Payment of Freight 215

What is freight? 216
Set-off 216
When and where is it payable? 217
Special clauses 218
The ‘deemed earned’ clause 218
The ‘near’ clause 219
 DETAILED CONTENTS xi

By whom is it payable? 220

Remedies for non-payment 222
The nature of a lien 223
Exercising a lien 224

11 Voyage Charters – Laytime and Demurrage 227

Calculating the available laytime 228
When is charterer’s duty to load or discharge triggered? 230
Giving notice of readiness 230
The termination point of the approach and carrying voyages 232
‘Wibon’ and ‘time lost’ clauses 235
Suspending laytime 237
Laytime definitions and exceptions 238
Fault of the shipowner 240
Removal of vessel for shipowner’s purposes 241
The shipowner’s remedies for delays in loading and discharge – demurrage 241
Laytime provisions and demurrage 242
Demurrage and other breaches of charter 243
Demurrage time bars 245

12 Time Charters 246

The shipowner’s right of withdrawal 247
Late payment 249
Underpayment – charterers’ rights to make an ‘equitable’ set-off 250
Loss of time under a time charter – ‘off-hire’ 252
Inefficiency of the vessel 252
Off-hire events 253
Time deductible following an off-hire event 255
Redelivery 257

13 Damages and Frustration 260

Damages 261
Tort and contract compared 261
Contractual measure of damages 262
Applying the contractual rules on remoteness to
cargo claims 262
Charterparty claims and damages 266
Frustration 270
What amounts to frustration? 270
The effect of breach 272
The consequences of frustration 272

PART 2 WET SHIPPING 275

14 Collisions 277
Vicarious liability 278
Tugs and tows 279
Pilots 279
Standard of care 280
xii DETAILED CONTENTS

Causation 282
Apportionment of liability 284
Damages 285
Statutory liability 287
Time bar 288
Jurisdiction 288

15 Salvage 290
The sources of salvage law 291
What property can be salved? 292
Maritime property 292
The requirement of danger 294
What are the geographical limits of salvage? 296
Who can be a salvor? 296
Contractual duties 297
Public duties 298
Self-interest 299
What services qualify for salvage? 299
The general rule of ‘no cure, no pay’ 299
Environmental salvage 301
The SCOPIC clause 304
What principles govern the relationship between salvor and salvee? 305
The parties bound by the signing of a salvage agreement 305
Setting aside a salvage agreement 306
The effect of negligence 307
Termination of the salvage services 309
Post-termination services 310
How is any salvage award calculated? 311
Salved values 311
Fixing the award 314
Apportioning the award between salvors 315
What remedies are available to salvors? 316
Security for the claim 316
Time bar 317
LOF 2011 317
How do salvage principles apply to wreck? 317

16 General Average 319

Extraordinary sacrifices and expenses 321
Sacrifices 321
Expenses 322
Voluntariness 326
Time of peril 327
Common safety 327
Fault 328
Valuing losses and assessing contributory values 328
Sacrifices 328
Expenditure 329
Contributory values 329
Rights and remedies of the interests inter se 330
 DETAILED CONTENTS xiii

The York Antwerp Rules 2004 331

The York Antwerp Rules 2016 332

17 Marine Pollution 333

The CLC 334
Strict liability 334
Geographical ambit 336
Defences 337
‘Channelling’ of liability 337
Limitation of liability 338
Compulsory insurance 339
Time limits 339
Jurisdiction 339
The Fund 340
The Fund’s liability 340
Defences available to the Fund 341
Limitation 341
Time limits 342
Subrogation 342
Jurisdiction 342
Non-tanker oil spills 342
The 2001 Bunker Oil Pollution Convention 343
Hazardous and Noxious Substances (HNS) Pollution 344
Liability 344
Geographical ambit 345
Shipowners’ defences 345
Limitation 346
Compulsory liability insurance 346
Jurisdiction 347
Time bars 347
The HNS Fund 347
The Protocol to the HNS Fund 347
Pollution from oil rigs 348
The Environmental Liability Directive 2004/35/EC 349
Wreck removal 351
Statutory powers of wreck removal 351
The 2007 Nairobi International Convention on the removal of wrecks 351

PART 3 JURISDICTION, CHOICE OF LAW, SECURITY AND LIMITATION 353

18 Jurisdiction, Arbitration and Applicable Law 355

Jurisdiction of the English High Court 356
Jurisdiction under the Judgments Regulation (EU 1215/2012) 358
Domestic sources of jurisdiction 368
Subsequent challenge to jurisdiction by the defendant 382
Articles 29 and 30 of the Judgments Regulation – lis alibi pendens 383
Section 34 of the Civil Jurisdiction and Judgments Act 1982 394
Arbitration 395
Separability of arbitration agreements 395
xiv DETAILED CONTENTS

Commencement of arbitration 396

Applicable law 397
Interim relief 398
Appeals 398
Challenges by non-participating parties 400
Enforcement of domestic awards 400
Enforcement of foreign awards 401
Arbitration on LMAA terms 402
Applicable law 402
Choice of law in contract 402
Choice of law in tort 406

19 Security and Interim Relief 409

Arrest 410
Priorities 412
Effect of a stay on provision of security 412
The freezing order 414
The elements of a domestic freezing order 415
‘Worldwide’ freezing orders 417
Other interim relief 419
Security for the defendant’s costs 419
Inspection of property 420
Anti-suit injunctions 420

20 Limitation of Liability 425

Who can limit? 426
Which claims are subject to limitation? 427
Which claims are not subject to limitation? 428
How can the right to limit be lost? 429
How is the limitation figure calculated? 430
Article 6 430
Article 7 432
Establishing the Fund 433
Jurisdiction 434
Compulsory insurance 435
Other limitation regimes 435

Index 437
Preface to the Seventh Edition

Since the publication of the sixth edition in February 2015 there have been continuing significant
developments in shipping law. In the field of international liability conventions we have seen the
first three ratifications of the 2010 Protocol to the HNS Convention, with Norway ratifying in April
2017 and Canada and Turkey a year later. There is a new convention on choice of court agreement,
the 2005 Hague Convention which was ratified by the EU (excluding Denmark) and came into
effect on 1 October 2015. Two other states have ratified the Convention, Mexico and Singapore
(ratifying on 2 June 2016). The Convention applies only to wholly exclusive jurisdiction agree-
ments in favour of the courts of one Contracting State (or one or more courts within one Contract-
ing State), but excludes carriage of passengers or goods, arbitration and related proceedings.
The consequences of ‘Brexit’ following the referendum decision of 23 June 2016 have been
much analysed, debated and contended over, but in the sphere of shipping law the UK’s departure
from the EU will have very little effect. Substantively, most of the English shipping law discussed
in this book is based on common law, and a few key statutes, such as the Carriage of Goods by Sea
Act 1992, and the implementation of international carriage conventions through domestic legisla-
tion. However, shipping litigation is profoundly affected by EU Regulations in the field of Jurisdic-
tion and Enforcement of Judgments (the 2001 Brussels I Regulation and the 2012 Brussels I
Regulation (recast)), and applicable law in contract and in tort (the Rome I and Rome II Regulations
respectively). With the repeal of the European Communities Act 1972, these would cease to be law
on ‘exit day’, currently set for 11.00 pm on 29 March 2019.
The UK government has planned to forestall the resulting legal chaos caused by the abrupt
disappearance of nearly 20,000 EU legislative acts currently in force, through the European Union
(Withdrawal) Act 2018 which will repeal the European Communities Act 1972 but retain EU leg-
islation as part of UK law, and will come into effect on exit day. Accordingly, the provisions of the
Brussels I Regulation and the Brussels I Regulation (recast), the Rome I and Rome II Regulations
will continue to apply after exit day, as UK law. There will, however, be no reciprocity as regards
the remaining 27 Member States of the EU and the provisions of the Brussels Regulations on juris-
diction and enforcement of judgments will cease to have effect as regards the UK once it leaves the
EU. There is, though, no problem with the domestication of the two conflicts regulations, Rome I
and Rome II, as their rules on applicable law are of universal application.
There have been several important decisions relating to cargo claims. In The Aqasia, [2018]
EWCA Civ 276, the Court of Appeal has held that there is no limitation provision in the Hague Rules
for bulk or liquid cargo. In The Maersk Tangier, [2018] EWCA Civ 778, it has held that the enumera-
tion of packages within a container for the purposes of limitation under the Hague-Visby Rules
does not require an explicit statement as to how the goods have been packed.
The scope of the Hague-Visby Rules has also been considered in a number of cases. In The
Maersk Tangier the Hague-Visby Rules were held to apply to a contract of carriage from a Contracting
State where the contract contemplated the issue of a bill of lading, even though no bill of lading
was issued for the carriage, a sea waybill being issued instead. In Volcafe Ltd v CSAV, [2016] EWCA
Civ 1103, the ‘tackle to tackle’ period has been interpreted as covering loading by the sea carrier
into its own containers at an inland terminal and also the subsequent road carriage to the port. The
Court of Appeal also decided that the carrier may rely on an exception listed in Art IV(2), other
xvi PREFACE TO THE SEVENTH EDITION

than exception (q), without having to prove an absence of negligence in the carriage of the goods.
Once the carrier brings itself within an exception, it is then for the claimant to prove fault to dis-
apply the exception.
The carrier’s delivery obligations came under scrutiny in MSC v Glencore, [2017] EWCA Civ 365,
with the Court of Appeal holding that the carrier had no defence to misdelivery claim where deliv-
ery is made under an electronic release system against presentation to the terminal of pin codes
previously issued by the carrier in exchange for the bill of lading. These had been hacked, enabling
criminals to make off with the claimant’s container. Delivery of the pin codes in exchange for the
bill of lading did not amount to delivery of the goods. In The Alhani, [2018] EWHC 1495, it has been
held that the Hague Rules time bar has been held to apply to misdelivery claims, provided the
misdelivery took place within the temporal scope of the Hague Rules, from the start of loading to
the completion of discharge.
The law on charterparties has seen no less than three important Supreme Court decisions. In
The Global Santosh, [2016] UKSC 20, the vessel was to go off-hire when under arrest, unless the
detention or arrest was ‘occasioned by any personal act or omission or default of the Charterers or
their agents’. A demurrage claim was brought against the sub-charterers which led to the arrest of
the vessel. Although the sub-charterers were the time charterers’ agents, in that the charterers’
obligation to discharge the vessel had been delegated to them, they were not acting as their agents
when they incurred demurrage under their sub-charter, and so the vessel was off-hire for the
period of the arrest. In The Ocean Victory, [2017] UKSC 35, the Supreme Court has upheld the deci-
sion of the Court of Appeal that the Japanese port of Kashima was held not to be prospectively
unsafe for a Capesize vessel which grounded in a storm while attempting to leave the port of
Kashima and subsequently broke in two and became a total loss. The cause of the storm was due to
the concurrence of two factors – long waves and gale force winds from the north. Each factor sep-
arately was a characteristic of the port, but the concurrence of the two factors was not. In determin-
ing whether Kashima was prospectively unsafe, regard had to be had to whether the particular event
was sufficiently likely to occur to have become an attribute of the port. The particular event which
had caused the loss had been the concurrence of these two factors, which was an abnormal occur-
rence. Third, there is The New Flamenco, [2017] UKSC 43, which involved the assessment of damages
for the renunciation of a charter in 2007, followed by a sale of the vessel for nearly US$24 million.
But for the repudiation, the vessel would have been redelivered in 2009 by when its value would
have been US$7 million due to the intervening collapse of the freight market. The Supreme Court,
overturning the decision of the Court of Appeal, held that in assessing owners’ damages no account
was to be taken of the benefit to owners of being able to sell the vessel in 2007. If a benefit is to be
credited, it must have been caused by a breach of charterparty or by a successful act of mitigation.
The owners’ decision to sell the vessel, was their independent commercial decision which had
nothing to do with the charterparty, and did not amount to an act of mitigation.
The Court of Appeal in Spar Shipping v Grand China Logistics, [2016] EWCA Civ 982, has ruled that
the obligation to pay hire is not a condition, an issue on which there were divergent decisions at
first instance. However, the shipowner was able to claim damages because of a persistent pattern
of late or under payment of hire by the time charterer amounting to a renunciation of the charter,
entitling the shipowner to terminate the charter, and claim damages. Renunciation was also in issue
in another Court of Appeal decision in MSC v Cottonex, [2016] EWCA Civ 789. There had been a
renunciation by the shipper of a contract of carriage under a bill of lading due to its inability to
redeliver the carrier’s containers from the port of discharge where they had been detained follow-
ing the consignee’s failure to take delivery of the cargo. The Court of Appeal held that when there
is renunciation due to a party’s inability to perform the innocent party has no option to affirm the
contract. Demurrage could only be claimed up to the shipper’s renunciation of the contract, and
thereafter the carrier’s claim was for the value of the containers.
 PREFACE TO THE SEVENTH EDITION xvii

There have been two notable developments in the area of general average. First, in 2016 the
Baltic and International Maritime Council (BIMCO) introduced a new version of the York Antwerp
Rules which reverses unpopular amendments in the 2004 Rules, and reverts to the provisions of
the 1994 rules, as regards salvage (Rule VI), and the inclusion of wages and maintenance of the
master, officers and crew during the period a vessel is in a port or place of refuge undergoing
repairs recoverable in general average (Rule XI(b)(i)). Rule XVII now permits adjusters to exclude
low value cargoes from contribution to general average where the cost of inclusion would be likely
to be disproportionate to its contribution. Second, in The Longchamp, [2017] UKSC 68, the Supreme
Court has held that operating expenses incurred during the period in which owners were negoti-
ating a ransom with pirates were recoverable in general average under Rule F of the 1974 York-
Antwerp Rules. The Court of Appeal had held that the expenses did not fall within Rule F because
payment of a reduced ransom was not an ‘alternative course of action’ to paying the ransom ini-
tially demanded, but was merely a variant. Though this was the prevailing view of the texts on
general average and among practitioners, it was not supported by the language of Rule F.
The Brussels I Regulation (recast) came into effect on 10 January 2015 and there was some
speculation as to what would be the effect of Recital 12 on arbitration. In 2015 the Court of Justice
of the European Union (CJEU) held in Gazprom OAO v Lietuvos Respublika, [2015] C-536/13, that where
an arbitration award contains an anti-suit injunction, the Brussels I Regulation does not prevent a
court in an EU Member State from recognising and enforcing (or from refusing to recognise and
enforce) the award. Prior to the decision Advocate General Wathelet had stated in his opinion that
the Brussels I Regulation (recast), in clarifying the scope of the arbitration exception by adding
Recital 12, had reversed the effect of West Tankers. The CJEU made no comment on the Advocate
General’s opinion on this issue and in Nori Holdings Ltd & Ors v PJSC Bank Otkritie, [2018] EWHC 1343
(Comm), it has been held that the Brussels I Regulation (recast) has effected no change in the law
on anti-suit injunctions. The ‘Italian Torpedo’ is still very much with us.
New, higher levels of limitation under the 1996 Protocol to the Convention on Limitation of
Liability for Maritime Claims came into effect on 8 June 2015, although these were not implemented
in the UK until 30 November 2016. We have also seen the first case in which the right to limit has
been lost under Art 4. This happened in The Atlantik Confidence, [2016] EWHC 2412 (Admlty), where
the right to limit was lost in circumstances where the cargo was lost following owners’ decision to
scuttle the vessel. In The Ocean Victory, [2017] UKSC 35, the Supreme Court unanimously agreed with
the Court of Appeal’s decision in The CMA Djakarta, [2004] EWCA Civ 114, and, had it found that
charterers were in breach of the safe port warranty, it would have held that they could not limit their
liability in respect of liability for damage to the vessel.
This edition takes account of the law as of 1 July 2018.
Simon Baughen
Acknowledgements

I would like to thank the following people who have read and commented on sections of this book.
Their help has been very much appreciated. Any errors that remain are, of course, my own:

l Professor Jonathan Hill of the School of Law, University of Bristol;

l Professor Gerard McMeel of the School of Law, University of Bristol;
l Joanne Moody;
l Alison Shaw-Lloyd;
l Juan Carlos Ortiz Camacho.

Thanks also to Professor Francis Rose, George Arghyrakis, Natalie Campbell and Dr Raid Al-Zude.
Thanks to Philip Hinks for assisting in the updating of Chapters 18 and 19 for the fourth
edition.
I would also like to acknowledge the debt that I owe to all those to whom I have taught this
subject over the years: your questions about ‘obvious’ points have greatly assisted my understand-
ing of the subject.
Table of Cases
A Aegnoussiotis, The [1977] 1 Lloyd’s Rep 268,
Abidin Daver, The [1984] AC 398, HL … 393
Abt Rasha, The [2000] 2 Lloyd’s Rep 575, CA …
326
Acanthus, The [1902] P17 … 286
Achilleas, The [2006] EWHC 3030 (Comm);
[2007] 1 Lloyd’s Rep 19; [2007] EWCA Civ
901; [2007] 2 Lloyd’s Rep 555;
[2008] UKHL 48; [2008] 2 Lloyd’s Rep 275
… 258, 264, 265
Aconcagua, The [2009] EWHC 1880 (Comm);
[2010] 1 Lloyd’s Rep 1, aff’d [2010] EWCA
Civ 1403; [2011] 1 Lloyd’s Rep 683 … 132
Aconcagua Bay, The [2018] EWHC 654 … 236
Acrux, The [1962] 1 Lloyd’s Rep 405, QB …
411
Adamastos Shipping Co Ltd v Anglo-Saxon
Petroleum Co Ltd [1959] AC 133, HL; [1958]
1 Lloyd’s Rep 73 … 79, 86, 114, 199, 200,
204
Adams v Cape Industries plc [1990] Ch 433, CA
… 377
Adelfa, The [1988] 2 Lloyd’s Rep 466, QB …
272
Aditya Vaibhav, The [1991] 1 Lloyd’s Rep 573,
QB … 251
Adler v Dickson [1955] 1 QB 158 … 54, 278
Admiralty Commissioners v m/v Valverda
[1938] AC 173 … 301
Adolf Warski, The [1976] 1 Lloyd’s Rep 107;
aff’d [1976] 2 Lloyd’s Rep 241, CA …
390–1, 392
Aegean Sea, The [1998] 2 Lloyd’s Rep 39, QB …
41, 45, 60, 131, 132, 206, 338, 426
Aegis Brittanic, The [1987] 1 Lloyd’s Rep 119,
QB … 222
Aegis Progress, The [1983] 2 Lloyd’s Rep 570 …
229
Aegis Spirit, The [1977] 1 Lloyd’s Rep 93
(US Ct) … 127
QB … 224
Aello, The [1961] AC 135, HL … 233, 234
Aeneas, The [1935] P128 … 281
AES Express, The [1990] 20 NSWLR 57 (Sup Ct
of New Zealand) … 34, 247
AES UST-Kamenogorsk Hydropower Plant LLP v
UST-Kamenogorsk Hydropower Plant JSC
[2010] EWHC 722 (Comm); [2010] 1 CLC
519 … 424
Afovos, The; Afovos Shipping Co SA v R Pagnan
& F Lli [1983] 1 WLR 195 … 247, 250
Afrapearl [2003] EWHC 1904 (Comm); [2003]
2 Lloyd’s Rep 671, QB … 237
Agamemnon, The [1998] 2 Lloyd’s Rep 675, QB
… 231
Agios Dimitris, The [2004] EWHC 2232
(Comm); [2005] 1 Lloyd’s Rep 235 … 400
Agios Lazaros, The; Nea Agrex SA v Baltic
Shipping Co Ltd [1976] QB 933, CA … 122
Agios Stylianos, The [1975] 1 Lloyd’s Rep 426
… 235, 241
Agnew v Commissioners of Inland Revenue
[2001] 2 AC 710 (PC) … 223
Ailsa Craig Fishing Co Ltd v Malvern Fishing Co
Ltd and Securicor (Scotland) Ltd [1983] 1
WLR 964, HL … 82
Ailsa Craig, The [2009] EWCA Civ 425; [2009]
2 Lloyd’s Rep 371 … 213
Aitken v Ernsthausen [1894] 1 QB 773 … 268
Akai Pty Ltd v People’s Insurance Co Ltd [1998]
1 Lloyd’s Rep 90 … 390
Akt Reidar v Arcos [1927] 1 KB 352 … 244
Aktiebolaget Svenska Tractor v Maritime
Agencies (Southampton) Ltd [1953] 2 QB
285 … 105
Al Taha, The [1990] 2 Lloyd’s Rep 117 … 91–2
Alaskan Trader, The (No 2); Clea Shipping
Corp v Bulk Oil International Ltd [1983]
2 Lloyd’s Rep 645, QB … 259, 267
xx TABLE OF CASES
Albacora SRL v Westcott & Laurance Line (The
Maltasian) [1966] 2 Lloyd’s Rep 53, HL …
113, 114, 118
Albazero, The [1977] AC 774, HL … 36, 40, 51
Albionic, The [1942] P81 … 316
Aldora, The; Tyne Tugs v Aldora (Owners)
[1975] QB 748 … 295, 297, 315
Alecos M, The [1990] 1 Lloyd’s Rep 82, QB;
rev’d [1991] 1 Lloyd’s Rep 120, CA … 263
Alev, The [1989] 1 Lloyd’s Rep 138 … 247
Alexandros T, The [2014] EWHC 3068 (Comm);
[2014] 2 Lloyd’s Rep 57 … 423
Alexandros T, The (Starlight Shipping Co v
Allianz Marine & Aviation Versicherungs AG)
[2013] UKSC 70; [2014] 1 Lloyd’s Rep 223
… 386
Alexandros T, The (Starlight Shipping Co v
Taiping Insurance Co Ltd), The [2007]
EWHC 1893 (Comm) [2008] 1 Lloyd’s Rep
230 … 420
Alhani, The (Deep Sea Maritime Ltd v Monjasa
A/S) [2018] EWHC 1495 … xvi, 123
Aliakmon, The [1986] 1 AC 785; [1986] 2 All
ER 145, HL … 37, 49, 50, 51
Alimport v Soubert Shipping Co Ltd [2000]
2 Lloyd’s Rep 447, QB … 72
Alletta, The [1974] 1 Lloyd’s Rep 40 … 374
Allison v Bristol Marine Insurance Co (1876)
1 App Cas 209 … 217
Almak, The [1985] 1 Lloyd’s Rep 557, QB …
197
Alpha, The [1991] 2 Lloyd’s Rep 515 … 327, 376
Alraigo, The [1984] LMCLQ 696 … 293, 299
Altair, The [2008] EWHC 612 (Comm); [2008]
2 Lloyd’s Rep 90 … 306
Amer Energy, The [2009] 1 Lloyd’s Rep 293 …
265
American Farmer, The (1947) 80 Ll.L. Rep 672
… 315
Amerique, The (1874) LR 6 PC 468 … 314
Amphion, The [1991] 2 Lloyd’s Rep 101, QB …
130
Amstelslot, The; Union of India v NV Reederij
Amsterdam [1963] 2 Lloyd’s Rep 223, HL …
111
Anders Maersk, The [1986] 1 Lloyd’s Rep 483
(Hong Kong High Ct) … 99
Anderson, Tritton & Co v Ocean SS Co (1884)
10 App Cas 107 … 322
Andria, The, now renamed The Vasso [1984] QB
477 … 410
Angara Maritime Ltd v OceanConnect UK Ltd
[2010] EWHC 619, QB; [2011] 1 Lloyd’s
Rep 61 … 192
Angelic Grace, The [1995] 1 Lloyd’s Rep 87, CA
… 421
Angeliki, The [1973] 2 Lloyd’s Rep 226 (QB) …
122, 392
Anglo Irish Beef Processors International v
Federated Stevedores Geelong [1997]
1 Lloyd’s Rep 207 (Aus Sup Ct of Victoria,
CA) … 122
Anglo-Argentine Live Stock Agency v Temperley
SS Co [1899] 2 QB 403 … 321
Anglo-Grecian Steam Trading Co v T Beynon &
Co (1926) 24 Ll. L, Rep 122 … 322
Anglo-Overseas Transport v Titan Industrial Corp
(UK) [1959] 2 Lloyd’s Rep 152 … 22
Anglo-Polish Lines v Vickers (1924) 19 Lloyd’s
Rep 121 … 224
Anglo-Saxon Petroleum Co v The Admiralty and
Damant (The Delphinula) (1947) 82 Ll. L.
Rep 459 … 307
Anna H, The [1995] 1 Lloyd’s Rep 11, CA …
366, 367
Annangel Glory, The [1988] 1 Lloyd’s Rep 45,
QB … 223
Annapolis, The (1861) Lush 295 … 296
Antares, The [1987] 1 Lloyd’s Rep 424, CA …
93, 105, 122, 123, 381, 397
Antigoni, The [1991] 1 Lloyd’s Rep 209, CA …
120
Antiparos, The [2008] EWHC 1139 (Comm);
[2008] 2 Lloyd’s Rep 237 … 244
Anton Durbeck GmbH v Den Norske Bank ASA
[2005] EWHC 2497; [2006] 1 Lloyd’s Rep
93 … 411
Antonis P Lemos, The [1985] AC 711 … 372
Antwerpen, The [1994] 1 Lloyd’s Rep 213 (Aus
Supreme Ct (NSW) Court of Appeal) … 55,
60
Anwar el Sabah, The [1982] 2 Lloyd’s Rep 261,
CA … 196
APJ Priti, The [1987] 2 Lloyd’s Rep 37, CA …
207
APL Sydney, The [2010] FCA 240 … 430–1
Apollo, The [1978] 1 Lloyd’s Rep 200, QB …
253, 255
 TABLE OF CASES
Apostolis, The [1997] 2 Lloyd’s Rep 241, CA;
[1996] 1 Lloyd’s Rep 475, QB … 110, 116
Aqasia, The [2016] EWHC 2514 (Comm); aff’d
[2018] EWCA Civ 276 … xv, 124
Aquacharm, The; Actis Co Ltd v The Sanko SS Co
Ltd [1982] 1 WLR 119, CA; [1980] 2 Lloyd’s
Rep 237, CA … 194, 195, 203, 252, 256
Aquafaith, The [2012] EWHC 1077 (Comm);
[2012] 2 Lloyd’s Rep 61 … 267
Aqualon (UK) Ltd v Vallana Shipping Corp
[1994] 1 Lloyd’s Rep 669 … 22, 180
Aramis, The [1989] 1 Lloyd’s Rep 213, CA …
27, 28, 37, 38, 47, 55
Arawa, The [1977] 2 Lloyd’s Rep 416, QB … 102
Archimidis, The [2008] EWCA Civ 175; [2008]
1 Lloyd’s Rep 597 … 206, 216
Arctic Trader, The [1996] 2 Lloyd’s Rep 449 …
197
Ardennes, The; SS Ardennes (Cargo Owners) v SS
Ardennes (Owners) [1951] 1 KB 55, KB …
22–3, 39, 44, 266
Argentino, The (1889) 14 App Cas 519 … 286
Argonaut, The [1985] 2 Lloyd’s Rep 216, QB …
203
Aries, The; Aries Tanker Corp v Total Transport
Ltd [1977] 1 WLR 185, HL … 122, 162,
191, 216, 218, 219
Armement Adolf Deppe v John Robinson & Co
Ltd [1917] 2 KB 204 … 214
Armour & Co Ltd v Walford [1921] 3 KB 473 …
9, 22
Arpad, The [1934] P189 … 58, 263
Arundel Castle, The [2017] EWHC 116 (Comm);
[2017] 1 Lloyd’s Rep 370 … 234
Asfar & Co v Blundell [1896] 1 QB 123 … 217
Astra, The [2013] EWHC 865 (Comm); [2013]
2 Lloyd’s Rep 69 … 248
Astrakhan, The [1910] P172 … 287
Athamas, The [1963] 1 Lloyd’s Rep 287, CA …
219, 220
Athanasia Comninos, The [1990] 1 Lloyd’s Rep
277, QB … 130, 194, 196, 206
Athel Line v London & Liverpool WRA [1944]
KB 87 … 326
Athelviscount, The (1934) 48 Ll. L. Rep. 164 …
65
Athena, The [2013] EWCA Civ 1723 … 256
Athos, The [1983] 1 Lloyd’s Rep 127, CA …
250
xxi
Atlantik Confidence, The [2014] EWCA Civ 217
… 433
Atlantik Confidence, The [2016] EWHC 2412
(Admlty); [2016] 2 Lloyd’s Rep 525 … xvii,
430
Atlantic Sunbeam, The [1973] 1 Lloyd’s Rep
482, QB … 233
Atlas, The (1862) Lush 518 … 314
Atlas, The [1996] 1 Lloyd’s Rep 642, QB … 31,
67, 70
Attika Hope, The [1988] 1 Lloyd’s Rep 439, QB
… 225
Attorney General of Ceylon v Scindia SN Co Ltd
[1962] AC 60, PC … 67
Attorney General v Anderson (1988) The
Independent, 31 March … 411
Atwood v Sellar (1880) 5 QBD 286, CA … 323
August 8, The [1983] 2 AC 450 … 380
August Legembre, The [1902] P123 … 296
August Leonhardt, The [1984] 1 Lloyd’s Rep 322
… 122
Austin Friars SS Co v Spillers & Baker Ltd [1915]
3 KB 586 … 322
Australian Coastal Shipping Commission v Green
[1971] 1 QB 456, CA … 322, 327
Awad v Pillai [1982] RTR 266, CA … 48
Azov Shipping Co v Baltic Shipping Co [1999]
1 Lloyd’s Rep 68 … 399
B
Babanaft International v Bassatne [1990] Ch 13,
CA … 414, 417
Bain Clarkson v Owners of The Sea Friends
[1991] 2 Lloyd’s Rep 322 … 373
Baleares, The [1993] 1 Lloyd’s Rep 215, CA …
213
Balian & Sons v Joly, Victoria & Co (1890) 6 TLR
35 … 92
Baltic Shipping Co v Translink Shipping Ltd
[1995] 1 Lloyd’s Rep 673 … 419
Baltic Strait, the [2018] EWHC 629 … 44
Baltic Surveyor, The [2002] EWCA Civ 89;
[2002] 2 Lloyd’s Rep 623, CA … 286
Banco Nacional de Comercio Exterior SNC v
Empresa de Telecommunicationes de Cuba SA
[2007] EWCA Civ 662; [2007] 2 Lloyd’s Rep
484 … 418
Bank Berlin v Makris (1999) Lloyd’s Alert Service
40, QB … 72
xxii TABLE OF CASES
Bank Line v Capel (Arthur) & Co [1919] AC 435,
HL … 214, 270, 271
Bank of China v NBM LLC [2002] 1 Lloyd’s Rep
506, CA; [2001] EWCA Civ 1916 … 416
Banque Bruxelles Lambert SA v Eagle Star
Insurance Co Ltd (sub nom South Australia
Asset Management Corpn v York Montague
Ltd) [1997] AC 191 … 264
Bao Yue, The [2015] EWHC 2288 (Comm);
[2016] 1 Lloyd’s Rep 320 … 225
Barber v Meyerstein (1870) LR 4 HL 317 … 7,
170
Barclay-Johnson v Yuill [1980] 1 WLR 1259 …
416
Barranduna, The and The Tarrago [1985]
2 Lloyd’s Rep 419, PC … 21
Batis, The [1990] 1 Lloyd’s Rep 345, QB … 206,
216
Baumwoll Manufactur Von Carl Scheibler v
Furness [1893] AC 8, HL … 30
Bazias 3, The [1993] QB 673 … 414
BBC Greenland, The [2011] EWHC 3106
(Comm); [2012] 1 Lloyd’s Rep. 230 … 105
Beaverford, The (Owners) v The Kafiristan
(Owners) [1938] AC 136, HL … 295, 298,
307
Behn v Burness [1863] 3 B & S 751 … 212
Belships v Canadian Forest Products Ltd (1999)
45 Lloyd’s Alert Service … 204
Benarty, The [1985] QB 325, CA … 104
Benlarig, The (1888) 14 PD 3 … 300
Benlawers, The [1989] 2 Lloyd’s Rep 51, QB …
201
Bentsen v Taylor [1893] 2 QB 274 … 212
Berge Sisar, The [2001] 2 WLR 1118, HL;
[1998] 2 Lloyd’s Rep 475, CA … 45, 46,
132
Berge Sund, The [1993] 2 Lloyd’s Rep 453, CA
… 195, 252
Bergen, The [1997] 1 Lloyd’s Rep 380, QB …
367, 379
Berkshire, The [1974] 1 Lloyd’s Rep 185, QB …
28, 32, 107
Bernina, The (1886) 12 PD 36 … 285, 286
Bhatia Shipping and Agencies Pvt v Alcobex
Metals [2004] EWHC 2323 (Comm); [2005]
2 Lloyd’s Rep 336 … 173
Bijela, The, sub nom Marida Ltd v Oswal Steel
[1994] 1 WLR 615, HL … 325
Black Falcon, The [1991] 1 Lloyd’s Rep 77, QB
… 258
Bols Distilleries BV v Superior Yacht Services Ltd
[2006] UKPC 45; [2007] 1 WLR 12 … 363
Bona, The [1895] P125 … 322
Bonython v Commonwealth of Australia [1951]
AC 201 … 403
Boral Gas, The [1988] 1 Lloyd’s Rep 342, QB …
224, 244
BORCO v The Cape Bari [2016] UKPC 20;
[2016] 2 Lloyd’s Rep 469 … 430
Bormarsund, The (1860) Lush 77 … 300
Bostonian, The and Patterson v The Gregerso
(Owners) [1971] 1 Lloyd’s Rep 220 … 298
Boukadoura, The [1989] 1 Lloyd’s Rep 393, QB
… 197
Boy Andrew, The (Owners) v The St Rognvald
(Owners) [1948] AC 140 … 283
Boys v Chaplin [1971] AC 356, HL … 406, 407
BP Exploration Co (Libya) v Hunt [1979] 1 WLR
783; aff’d [1983] 2 AC 352 … 273
Brabant, The [1967] 1 QB 588 … 203
Bradley, FC & Sons Ltd v Federal Navigation Ltd
(1927) 27 Ll. L. Rep 395 … 77
Bradley v Newsum [1919] AC 16 … 318
Bramley Moore, The; Alexandra Towing Co v
Millet [1964] P200 … 431
Brandt v Liverpool Brazil & River Plate SN Co
[1924] 1 KB 575, CA … 37, 38, 55
Brass v Maitland (1856) 26 LJ QB 49, QB … 130
Brede, The [1973] 2 Lloyd’s Rep 333, CA … 216
Bremen Max, The [2008] EWHC 2755 (Comm),
[2009] 1 Lloyd’s Rep 81 … 197, 198
Breydon Merchant, The [1992] 1 Lloyd’s Rep
373 … 428
Bridgestone Maru, The (No 3) [1985] 2 Lloyd’s
Rep 62, QB … 253
Briggs v Merchant Traders’ Ship Loan and
Insurance Association (1849) 13 QB 167 …
316
Brightman & Co v Bunge y Born Limitada Socieda
[1924] 2 KB 619, CA … 239
Brij, The [2001] 1 Lloyd’s Rep 431 … 25
Brimnes, The; Tenax SS Co v The Brimnes
(Owners) [1975] QB 929, CA … 248, 249
British American Tobacco Switzerland S.A. and
Others v Exel Europe Ltd [2013] EWCA Civ
1319; [2014] 1 Lloyd’s Rep 503; [2015]
UKSC 65; [2016] AC 262 … 188
 TABLE OF CASES
British Columbia Saw-Mill Co Ltd v Nettleship
(1868) LR 3 CP499 … 263
Broda Agro Trade (Cyprus) Ltd v Alfred C
Toepfer International GmbH [2009] EWHC
3318 (Comm); [2010] 1 Lloyd’s Rep 533 …
400
Brown Jenkinson & Co Ltd v Percy-Dalton
(London) Ltd [1957] 2 QB 621 … 68–9
Brown, RF & Co Ltd v T & J Harrison (1927) 43
TLR 633 … 90, 120
Brown v KMR Services [1995] 2 Lloyd’s Rep 513
… 264
Buchanan & Co v Babco Forwarding & Shipping
(UK) [1978] AC 141, HL … 177, 188
Bukhta Russkaya, The [1997] 2 Lloyd’s Rep 744,
QB … 199
Bulk Chile, The [2013] EWCA Civ 184; [2013]
1 WLR 3440 … 220, 249
Bumbesti, The [1999] 2 Lloyd’s Rep 481, QB …
372, 410
Bunga Seroja, The [1999] 1 Lloyd’s Rep 513;
[1994] 1 Lloyd’s Rep 455 (Aus Supreme Ct
(NSW) Admiralty Div) … 81, 114, 117
Bunge SA v ADM do Brasil Ltda [2009] EWHC
845 (Comm); [2009] 2 Lloyd’s Rep 175 …
130
Burges v Wickham (1863) … 82, 83
Bywell Castle, The (1879) 4 PD 219 … 282,
283
C 196
C Joyce, The [1986] 2 Lloyd’s Rep 285, QB …
194, 205
Cairnbahn, The [1914] P25 … 284
Calcutta SS Co Ltd v Andrew Weir & Co [1910]
1 KB 759 … 20
Calliope, The [1970] 1 All ER 624 … 283, 284
Caltex Singapore Pte Ltd v BP Shipping Ltd
[1996] 1 Lloyd’s Rep 286 … 392
Camdex International Ltd v Bank of Zambia
(No 2) [1997] 1 WLR 632, CA … 417
Camellia, The (1883) 9 PD 27 … 300
Canada Rice Mills Ltd v Union Maritime and
General Insurance Co Ltd [1941] AC 55,
PC … 82
Canada Steamships Line Ltd v The King [1952]
1 Lloyd’s Rep 1 … 82
Canada Trust Co v Stolzenberg (No 2) [1988]
CLC 23, CA … 361
xxiii
Canadian and Dominion Sugar Co Ltd v Canadian
National (West Indies) SS Co [1947] AC 46
… 68
Cap Palos, The [1921] P458, CA … 80
Caparo Industries plc v Dickman [1990] 2 AC
605 … 72
Cape Cormorin, The; Carrington Slipways Pty Ltd
v Patrick Operations Pty Ltd (1991) 24
NSWLR 745, Sup Ct (NSW) … 22, 168, 169
Captain George K, The [1970] 2 Lloyd’s Rep 21,
QB … 271
Captain Gregos, The [1990] 1 Lloyd’s Rep 310,
CA … 52, 109, 123
Captain Gregos, The (No 2) [1990] 2 Lloyd’s
Rep 395, CA … 37
Captain v Far Eastern Shipping Co [1979]
1 Lloyd’s Rep 595 … 99
Carboex SA v Louis Dreyfus Commodities Suisse
SA [2011] EWHC 1165 (Comm); [2011]
2 Lloyd’s Rep 177 … 235–6, 237
Carewins Development (China) Ltd v Bright
Fortune Shipping Ltd (Hong Kong), CA;
CACV 328/2006 and CACV 329/2006 … 33
Cargo ex Argos (1873) LR 5 PC 134 … 218
Cargo ex Capella (1867) LR 1 A &E 356 … 307
Cargo ex Galam (1863) 2 Moo PCC (NS) 216;
(1863) 33 LJ Ad 97 … 218, 313
Cargo ex Port Victor [1901] P243 … 311
Cargo ex Schiller (1877) 2 PD 145 … 294
Caroline P, The [1984] 2 Lloyd’s Rep 466 …
Carron Park, The (1890) 15 PD 203 … 328
Casco, The [2005] EWHC 273 (Comm); [2005]
1 Lloyd’s Rep 565 … 200
Caspian Basin Specialised Emergency Salvage
Administration v Bouygues [1997] 2 Lloyd’s
Rep 507, QB … 426, 428
Caspian Sea, The [1980] 1 Lloyd’s Rep 91 …
217
Caspian v Bouygues Offshore SA [1998]
2 Lloyd’s Rep 461, CA … 391, 393
Castanho v Brown & Root (UK) Ltd [1987] AC
557 … 421
Castor, The [1932] P142 … 312
Castrique v Imrie (1870) LR 4 HL 414 … 380
Catalyst Investment Group Ltd v Lewinsohn
[2010] EWHC 1964 (Ch) … 388
Cavendish Square Holding BV v Makdessi,
ParkingEye Ltd v Beavis (Consumers
xxiv TABLE OF CASES
Association intervening) [2015] UKSC 67;
[2016] AC 1172 … 262
Cebu, The [1983] 1 Lloyd’s Rep 302, QB …
223
Cebu, The (No 2) [1990] 2 Lloyd’s Rep 316, QB
… 223
Cendor MOPU [2011] UKSC 5; [2011] 1 Lloyd’s
Rep 560 … 119
Chanda, The [1989] 2 Lloyd’s Rep 494, QB …
81, 91, 94, 105–6, 129
Chandris v Isbrandtsen-Moller Co Inc [1951]
1 KB 240 … 131, 132, 206, 244
Channel Ranger, The [2013] EWHC 3081
(Comm); [2014] 1 Lloyd’s Rep 337; aff’d
[2014] EWCA Civ 1366; [2015] 1 Lloyd’s
Rep 256 … 80
Charles Adolphe, The (1856) Swab 153 … 314
Charlotte, The (1848) 3 Rob 68 … 314
Charlotte Wylie, The (1846) 2 W Rob 495 …
313
Chellew v Royal Commission for the Sugar
Supply [1922] 1 KB 12 … 328
Chemical Venture, The [1993] 1 Lloyd’s Rep
508, QB … 206, 209, 210
Chevalier Roze, The [1983] 2 Lloyd’s Rep 438
… 58
Chevron North America, The [2002] 2 Lloyd’s
Rep 77, HL … 287
Chikuma, The; A/S Awilco v Fulvia SpA di
Navigazione [1981] 1 WLR 314, HL …
250–1
Chitral, The [2000] 1 Lloyd’s Rep 529, QB … 45
Cho Yang Shipping Co Ltd v Coral (UK) Ltd
[1997] 2 Lloyd’s Rep 641, CA … 29, 142,
156, 221, 223
Choko Star, The [1990] 1 Lloyd’s Rep 516, CA
… 306
Christel Vinnen, The [1924] P208, CA … 84,
85
Christensen v Hindustan Steel [1971] 1 Lloyd’s
Rep 395 … 230
Christopher Hill Ltd v Ashington Piggeries Ltd
[1969] 2 Lloyd’s Rep 425 … 264
Christos, The [1995] 1 Lloyd’s Rep 106, QB …
241
Christy v Row (1808) 1 Taunt 300 … 313
Chrysovolandou Dyo, The [1981] 1 Lloyd’s Rep
159, QB … 224, 251
Cia Nav Vasconcada v Churchill & Sim [1906] 1
KB 237 … 65
Ciampa and Others v British India SN Co [1915]
2 KB 774 … 83–4
Cicatiello v Anglo-European Shipping Services
Ltd [1994] 1 Lloyd’s Rep 678 … 185
Cie d’Armement Maritime SA v Cie Tunisienne
de Navigation SA [1971] AC 572 … 403
Citi-March Ltd v Neptune Orient Lines Ltd
[1996] 2 All ER 545, QB … 392
Clark (Inspector of Taxes) v Perks [2001] STC
1254 … 349
Claxton Engineering Services Ltd v Tam Olaj-Es
Gazkutato KTF [2011] EWHC 345; [2011]
1 Lloyd’s Rep 510 … 424
Clemens Horst v Norfolk and NW American SN
Co (1906) 11 Com Cas 141 … 230
Clipper Monarch, The [2015] EWHC 2584
(Comm); [2016] 1 Lloyds’ Law Rep 1 …
220, 224
Clipper San Luis, The [2000] 1 Lloyd’s Rep 645,
QB … 203
Clyde Commercial SS Co v West India SS Co 169
F 275, 278 (2d Cir 1909) US Ct … 252
CMA Djakarta, The [2004] EWCA Civ 114;
[2004] 1 Lloyd’s Rep 460, CA … xvii, 426,
428
Coli v Merzario [2002] 2 Lloyd’s Rep 608, CLCC
… 22
Commercial Marine Piling Ltd v Pierse
Contracting Ltd [2009] EWHC 2241 (TCC);
[2009] 2 Lloyd’s Rep 659 … 405
Commune de Mesquer v Total France SA and
Total International Ltd, Case C-188/07
[2008] 3 CMLR 16 … 338
Compagnia Importadora de Arroces Collette y
Kamp SA v P& O Steam Navigation Co (1927)
28 Ll. L. Rep 63 … 66
Compania Naviera Azuero SA v British Oil and
Cake Mills Ltd [1957] 2 QB 293 (QB) …
233
Compania Sud American Vapores v MS ER
Hamburg Schiffarhtsgesellschaft mbH & Co
KG; [2006] EWHC 483 (Comm); [2006]
2 Lloyd’s Rep 66 … 108, 203
Commerzbank Akt v Pauline Shipping and
Liquimar Tankers[2017] EWHC 161 (Comm)
… 363
Concordia C, The [1985] 2 Lloyd’s Rep 55 …
266
Connelly v RTZ Corp plc [1998] AC 854, HL …
393
Another random document with
no related content on Scribd:
 (Larger)

Map of Plymouth Harbor, Massachusetts, adapted from a

modern chart for comparison with Champlain’s map of Port St.
Louis, to which it is adjusted as nearly as possible in scale,
extent, and meridian
Reproduced from the Champlain Society edition of The Works of Samuel de
Champlain, plate LXXIV. The compass is Champlain’s, which is supposed to
be set to the magnetic meridian, but the true north is shown by the arrow.

Champlain’s Plymouth visit occurred in 1605, two years after

Pring’s expedition. He had spent several days in Gloucester Harbor
and a night in Boston Harbor, where he had watched the building of
a dugout canoe by the Indians. Coming down the South Shore, his
bark grounded on one of the numerous ledges that dot that portion of
Massachusetts Bay. “If we had not speedily got it off, it would have
overturned in the sea, since the tide was falling all around, and there
were five or six fathoms of water. But God preserved us and we
anchored” near a cape, which perhaps was Brant Rock. “There
came to us fifteen or sixteen canoes of savages. In some of them
there were fifteen or sixteen, who began to manifest great signs of
joy, and made various harangues, which we could not in the least
understand. Sieur de Monts sent three or four in our canoe, not only
to get water but to see their chief, whose name was Honabetha.—
Those whom we had sent to them brought us some little squashes
as big as the fist which we ate as a salad like cucumbers, and which
we found very good—We saw here a great many little houses
scattered over the fields where they plant their Indian corn.”
The expedition now sailed southward into Plymouth Harbor. “The
next day [July 18] we doubled Cap St. Louis, so named by Sieur de
Monts, a land rather low, and in latitude 42° 45’. The same day we
sailed two leagues along a sandy coast as we passed along which
we saw a great many cabins and gardens. The wind being contrary,
we entered a little bay [Plymouth] to await a time favorable for
proceeding. There came to us two or three canoes, which had just
been fishing for cod and other fish, which are found there in large
numbers. These they catch with hooks made of a piece of wood, to
which they attach a bone in the shape of a spear, and fasten it very
securely. The whole thing has a fang-shape, and the line attached to
it is made out of the bark of a tree. They gave me one of their hooks,
which I took as a curiosity. In it the bone was fastened on by hemp,
like that in France, as it seemed to me. And they told me that they
gathered this plant without being obliged to cultivate it; and indicated
that it grew to the height of four or five feet. This canoe went back on
shore to give notice to their fellow inhabitants, who caused columns
of smoke to rise on our account. We saw eighteen or twenty
savages, who came to the shore and began to dance.” Was this a
reminiscence of dancing to the guitar for Pring’s sailor, perhaps?
“Our canoe landed in order to give them some bagatelles, at which
they were greatly pleased. Some of them came to us and begged us
to go to their river. We weighed anchor to do so, but were unable to
enter on account of the small amount of water, it being low tide, and
were accordingly obliged to anchor at the mouth. I went ashore
where I saw many others who received us very cordially. I made also
an examination of the river, but saw only an arm of water extending a
short distance inland, where the land is only in part cleared up.
Running into this is merely a brook not deep enough for boats except
at full tide. The circuit of the Bay is about a league. On one side of
the entrance to this Bay there is a point which is almost an island,
covered with wood, principally pines, and adjoins sand banks which
are very extensive. On the other side the land is high. There are two
islets in this bay, which are not seen until one has entered and
around which it is almost dry at low tide. This place is very
conspicuous from the sea, for the coast is very low excepting the
cape at the entrance to the bay. We named it Port du Cap St. Louis,
distant two leagues from the above cape and ten from the Island
Cape [Gloucester]. It is in about the same latitude as Cap St. Louis.”
 (Larger)
New England

CAPTAIN JOHN SMITH’S MAP OF NEW ENGLAND, 1614

Reproduced from the Pequot Collection, Yale University Library

Champlain’s map of Plymouth Harbor, which is reproduced

herewith, was a quick sketch which he drew from the end of Long
Beach after his vessel went aground there, probably during the
afternoon of their arrival. Since the expedition stayed in Plymouth
Harbor only over one night, too much accuracy of detail must not be
expected of it. Saquish Head is represented as an island, and no
distinction is made between Eel River and Town Brook. Plymouth
Harbor has probably shoaled a good deal since the early
seventeenth century, since it would now be impossible to find a
seven-fathom anchorage anywhere except immediately around
Duxbury Pier Light; yet Champlain’s anchorage in the middle of
Plymouth Bay is so designated. Martin Pring had even described a
landlocked anchorage in seven fathoms. The chief value of
Champlain’s little map, aside from confirming the locality, is its
evidences of very extensive Indian houses and cornfields occupying
much of the slopes above the shore all the way around from the Eel
River area through Plymouth and Kingston to the shores of Duxbury
Bay.
The expedition left Plymouth on July 19 and sailed around the
shores of Cape Cod Bay before rounding the Cape and arriving the
next day at Nauset Harbor in Eastham. During several days’ stay
there, a French sailor was killed by the Indians in a scuffle over a
kettle. The following year, when Champlain returned to Cape Cod, a
more serious disaster occurred. Four hundred Indians at Chatham
ambushed and massacred five Frenchmen in a dawn raid, then
returned and disinterred their bodies after burial. The French took
vengeance by coolly slaughtering half a dozen Indians a few days
later. But, like the English adventurers, the French then abandoned
Massachusetts and never returned. Champlain reported that in all
his travels he had found no place better for settlement than Nova
Scotia. Two years later, changes of plans in France transferred him
to Quebec, where he spent the remainder of his career laying the
foundations of French Canada along the St. Lawrence.
Massachusetts Indians had again rebuffed the threat of European
penetration.
We have already noted that while Champlain was in
Massachusetts, George Waymouth and Martin Pring had been
exploring Maine. The coördination of these exploratory voyages was
largely the work of Sir Ferdinando Gorges, a diligent organizer of
New England colonial preparations. In 1606 the administrative
architecture of the English colonial movement in America was built.
King James gave charters to two companies, the London Company
and the Plymouth Company, providing for settlements respectively in
what came to be known as “Southern” and “Northern” Virginia. The
successful colony at Jamestown was founded by the London
Company in 1607. The coincident attempt by the Plymouth
Company, organized by Gorges, and the Popham and Gilbert
families, to found a colony on the Kennebec River in Maine failed
after a year’s trial. This Sagadahoc Colony failure was a blow to New
England colonization, the effects of which lasted for a generation,
since the impression of New England as a subarctic area, impractical
for settlement, remained in English minds for many years. It needs to
be emphasized, however, that despite this setback to English hopes,
the loss of fortunes invested in the enterprise, and the breakdown of
the Plymouth Company produced by this failure, the enterprise had
come much nearer to success than Humphrey Gilbert’s attempted
colony in Newfoundland. Much was learned about techniques of
living in the new country, getting along with Indians, and the need for
continuous replacement and supply. These ventures were
hazardous: they required courage, teamwork, strong leadership, and
personnel of heroic wisdom and tenacity.
After the Sagadahoc failure, the pattern of English activity on the
New England coast reverted for five years to the former state of
occasional trading and fishing voyages. The only events that
touched even remotely on Plymouth history were Cape Cod visits of
three men from different areas of activity. In 1609 Henry Hudson
landed briefly on Cape Cod on his way from Maine to his
explorations of the Hudson River which led to the Dutch claims in
that region. Samuel Argall from Virginia in 1610 likewise saw Cape
Cod on a voyage designed to supplement Jamestown’s failing food
supplies with New England codfish. And in 1611 Captain Edward
Harlow, sent on an exploring voyage to the Cape Cod region by the
Earl of Southampton, seems to have had five skirmishes with Indians
on Cape Cod and the Vineyard. Harlow’s vessel was attacked by
canoes while at anchor, and lost a long boat being towed astern to
the Indians, who thereupon beached her, filled her with sand and
successfully prevented the English from retaking her. Harlow
returned to England with little except five captured natives. Among
them was Epenow, an Indian whose treachery later accounted for
the death of Captain Thomas Dermer.
In 1613 the French fur-trading activities on the Bay of Fundy
were supplemented by an ambitious project to establish a Jesuit
missionary colony in that region. But this second French attempt to
colonize Maine was nipped in the bud after only a few weeks by Sir
Samuel Argall’s armed cruiser, sent from Virginia for the purpose.
This ended the threat of France as a colonial power in New England
except for occasional incursions into eastern Maine.
The year 1614 opened with a visitor to Plymouth from a new
quarter. Dutch fur traders, following in the wake of Henry Hudson’s
1609 discoveries, were already at work in the Hudson River. Two of
them, Adrian Block and Hendrick Christiansen, were about to weigh
anchor from Manhattan and depart for the Netherlands with a cargo
of furs in the fall of 1613 when one of their ships caught fire and
burned to the water’s edge. Both crews therefore stayed over the
winter on Manhattan Island, and there built a new “yacht,” the
Onrust, which they felt must be given a shakedown cruise before
attempting the Atlantic crossing. Block therefore sailed her eastward,
the first passage of Long Island Sound by a European, and explored
the Connecticut shore and rivers, Narragansett Bay and the Cape
Cod region, to all of which he laid claim for the Dutch as “Nieu
Nederlant.” Contemporary Dutch accounts offer us little of interest
about the Massachusetts phases of this voyage except some sailing
directions in Massachusetts Bay that suggest that Adrian Block
sailed from a place called Pye Bay, usually identified with Salem, to
the Lizard on the English Channel. But the Figurative Map which he
published in 1616 as a part of his report to the States General of the
Netherlands contains many additional details to which Dutch names
are applied, including a wholly unmistakable outline of Plymouth
Harbor, here called Cranes Bay. From this it seems obvious that
Block did visit Plymouth in the spring of 1614, and may be
considered as yet another of its explorers. It would be interesting to
know whether any of the Leyden Pilgrims, living in the Netherlands
for four years after the map’s publication, ever saw it before setting
out for the New World. In view of the controversy over whether the
Pilgrims were indeed headed for the Hudson River, it is interesting to
note that this map of Adrian Block’s would have been the most
accurate one available to them as a guide to the New York region,
yet there is nothing in the Pilgrim chronicles to suggest that they had
it with them on the Mayflower.
Also in 1614 there came sailing into Plymouth Harbor a man
whose map and writings were used by the Pilgrims, though he said
that they refused his advice and his leadership. Captain John Smith
would like to have been the founder of New England, but had to be
content to be its Hakluyt. He named New England, and “Plimouth,”
and Massachusetts, and the Charles River and Cape Ann—at least
he was the first to publish these names. He produced the best
known map of New England of that early period. He spent the last
seventeen years of his life writing the history of New England
voyages and pamphleteering for its settlement. Yet a succession of
misfortunes prevented him from ever revisiting the coast for which he
developed such enthusiasm during his three months’ voyage in
1614. Smith had already been governor of Virginia and had
experience in what it took to plant a successful colony. His writings
had unquestionably a strong influence on the Massachusetts colonial
undertakings, particularly since he was not afraid of Indians and
since he recognized the difference between the bleak coast of Maine
and the relatively better-situated Massachusetts area as a site for
colonial development.
John Smith arrived at Monhegan Island in Maine in April, 1614,
with two vessels. In the smaller of these he spent his time exploring
and mapping the coast from the Penobscot to Cape Cod, much as
Champlain had done nine years earlier. Thomas Hunt in the larger
vessel remained at Monhegan, fishing. Reaching “the Countrie of the
Massachusetts, which is the Paradise of all those parts,” Smith
entered Boston Harbor. “For heere are many Iles all planted with
corne: groves, mulberries, salvage gardens, and good harbours: the
coast is for the most part high clayie, sandie cliffs. The Sea Coast as
you passe, shews you all along large corne fields and great troupes
of well proportioned people; but the French, having remained heere
neere six weeks left nothing for us.” At Cohasset he wrote: “We
found the people in those parts verie kinde, but in their furie no lesse
valiant. For upon a quarrell we had with one of them, hee onely with
three others, crossed the harbor of Quonahassit to certaine rocks
whereby wee must passe; and there let flie their arrowes for our
shot, till we were out of danger,—yet one of them was slaine, and
another shot through his thigh.” His description of Plymouth, which
was variously known as Patuxet or Accomack, immediately follows
the Cohasset episode quoted above: “Then come you to Accomack,
an excellent good harbor, good land, and no want of anything except
industrious people. After much kindnesse, upon a small occasion,
wee fought also with fortie or fiftie of those; though some were hurt,
and some were slaine; yet within an hour after they became friends.”
In another passage he adds, “we tooke six or seven of their
Canowes which towards the evening they ransomed for Bever
skinnes.” Apparently Smith supplied a motive for the resumption of
friendship, knowing that the Indians could be bought off. This was
the kind of Indian policy Myles Standish used at times; in fact there is
a certain resemblance between the two men. In any case Smith left
for England with a cargo of beaver, and the Indians of Plymouth got
back their canoes.
But the next visitor to Plymouth, still in 1614, did not leave as
good an impression. With Smith departed for England, Thomas Hunt
appeared in Plymouth Harbor in Smith’s larger vessel. Not content
with a hold full of Monhegan codfish, Hunt now kidnaped twenty or
more Plymouth natives, stowed them below decks, and sailed away
to Spain, where he sold them into slavery at Malaga, “for £20 to a
man.” This was a typical seaman’s private venture, or side bet to the
profits of the codfish cargo. John Smith wrote that “this wilde act kept
him [Hunt] ever after from any more emploiment in those parts.”
Samuel Purchas termed Hunt’s “Savage hunting of Savages a new
and Devillish Project.” One can imagine what bitterness grew toward
the English among Massachusetts Indians after this demonstration
of European barbarism.
The quirks of history are at times worthy of the most fantastic
fiction. Thomas Hunt’s universally condemned crime happened to
produce one result which proved of great advantage to the Pilgrims.
Among the twenty wretched Plymouth natives whom Hunt sold at the
“Straights of Gibralter” was an Indian named Squanto. Then began a
five-year European education which trained Squanto for his
irreplaceable services to the Pilgrims as their interpreter. Squanto
was rescued by good Spanish friars, “that so they might nurture [him]
in the Popish religion.” In some unknown manner he reached
England and continued his education for several years in the
household of one John Slany, an officer of the Newfoundland
Company. His subsequent travels will appear in our discussion of
Thomas Dermer’s voyage in 1619. It is sufficient at this point to note
that perhaps the greatest blessing ever bestowed upon the Pilgrim
Fathers was the gift of a treacherous English shipmaster, a Spanish
Catholic friar, and an English merchant adventurer.
Things were going badly in another area of Massachusetts
during that eventful year of 1614. As though the expeditions of Block,
Smith, and Hunt were not sufficient for one year, Nicholas Hobson
now made his appearance at Martha’s Vineyard. Sent out by Sir
Ferdinando Gorges in an attempt to establish a fur-trading post in
that region, Hobson was using the Indian, Epenow, captured by
Harlow’s expedition in 1611, as his pilot through the shoals of
Nantucket Sound. Epenow cleverly contrived his escape, and a full-
scale battle ensued. “Divers of the Indians were then slain by the
English, and the Master of the English vessel and several of the
Company wounded by the Indians.” Hobson’s party “returned to
England, bringing nothing back with them, but the News of their bad
Success, and that there was a War broke out between the English
and the Indians.” Increase Mather later remarked that “Hunt’s
forementioned Scandal, had caused the Indians to contract such a
mortal Hatred against all Men of the English Nation, that it was no
small Difficulty to settle anywhere within their Territoryes.”
It was at this point in history that another strange series of
events took place, of much more far-reaching significance. With
English expeditions defeated and sent back to England empty-
handed, with an Indian war “broke out,” fate, or Providence, or
whatever you call that destiny which seems at times to intercede for
civilization in its remorseless quest for progress, now took a hand.
Some European disease, to which the natives had no resistance and
the Europeans complete immunity, swept the coasts of
Massachusetts clear of Indians. Suddenly it appeared in all the river
villages along the Mystic, the Charles, the Neponset, the North River,
and at Plymouth. No one knows what it was—whether chicken pox
or measles or scarlet fever. The Indians believed it was the product
of a curse leveled at them by one of the last survivors of a French
crew wrecked on Boston Harbor’s Peddock’s Island in 1615. By
analogy with what later happened to other primitive races in the
Americas and the Pacific islands, it was probably one of the
children’s diseases. The Indians died in thousands. A population of a
hundred thousand shrank to five thousand in the area from
Gloucester to New Bedford. “They died on heapes,” Thomas Morton
wrote, “and the living that were able to shift for themselves would
runne away and let them dy and let there Carkases ly above the
ground without buriall.... And the bones and skulls upon the severall
places of their habitations made such a spectacle after my comming
into those parts that as I travailed in that Forrest, nere the
Massachusetts, it seemed to mee a new-found Golgotha.”
Overnight the Indian war had vanished. Overnight the coast from
Saco Bay in Maine to Narragansett Bay in Rhode Island lay wide
open to European settlements. The cleared fields along the rivers
and salt marshes grew up to weeds, ready for the spade of the
English planter. For twenty miles inland the land was cleared of the
Indian menace in precisely the area where they had been most
agricultural, in what John Smith had called the “Paradise of all those
parts.” The choicest sites for plantations, at the river mouths and
along the tidal reaches of Boston Bay, Salem, Gloucester, and
Plymouth, were stripped of opposition. Beaver, deer, and codfish
multiplied unhindered. Smith’s description of Plymouth, “good harbor,
good land and no want of anything but industrious people,” was now
doubly true of the whole mainland shore of Massachusetts Bay.
These conditions were confirmed by Captain Thomas Dermer in
1619. Dermer had been associated with John Smith and Ferdinando
Gorges in an attempted New England voyage in 1615, and was
probably familiar with the coast. He was in Newfoundland in 1618
and there became acquainted with Squanto, who had been living in
the household of John Slany in England. Squanto’s European stay
was now completed, and someone had brought him out to
Newfoundland. Dermer appreciated how valuable he might prove to
be in a trading voyage to Massachusetts, and secured permission
from Governor John Mason of Newfoundland, and also from Sir
Ferdinando Gorges, to use him as a pilot for a Massachusetts
voyage.
Arrived in Massachusetts Bay, Dermer wrote: “I passed alongst
the coast where I found some ancient Plantations, not long since
populous now utterly void, in other places a remnant remaines but
not free of sickenesse. Their disease the Plague for wee might
perceive the sores of some that had escaped, who describe the
spots of such as usually die.” Reaching Plymouth, which, we
remember, was Squanto’s home, he goes on: “When I arrived at my
Savages native Country (finding all dead) I travelled alongst a daies
journey Westward, to a place called Nummastaquyt [Nemasket or
Middleboro], where finding Inhabitants I dispatched a messenger a
dayes journey further west to Poconokit, which bordereth on the sea;
whence came to see me two Kings; attended with a guard of fiftie
armed men, who being well satisfied with that my Savage and I
discoursed unto them—gave me content in whatsoever I
demanded.” At Poconokit he “redeemed a Frenchman, and
afterwards another at Mastachusit,” victims of shipwreck three years
before. What a chronicle these two castaways might have added to
Massachusetts history had their memoirs been preserved!
Squanto now found himself the only survivor of those two
hundred or more natives of Plymouth whom Martin Pring and
Champlain and John Smith had encountered. We note that he
brought the Englishmen of Dermer’s party into friendly association
with the sachems of Poconokit, which was Massasoit’s village at the
mouth of the Taunton River. This was the first friendly contact with
Massachusetts Indians in five years, the first since the criminal
barbarity of Thomas Hunt had aroused the enmity of the natives in
1614. We can read between the lines what a reconciliation the
homecoming of Squanto, himself a victim of that barbarous
kidnaping, must have produced among the Wampanoags. For
Dermer freed Squanto later, in 1619, and he found his way back to
Massasoit before the arrival of the Pilgrims. Whether Sir Ferdinando
Gorges or Dermer himself was responsible for this peacemaking
gesture, we have no way of knowing, but it seems to have cemented
again a long-standing peace between the English and the
Wampanoags, which was worth a whole battalion of soldiers to the
safety of New Plymouth. Captain Thomas Dermer, who probably
never heard of the Pilgrims, thus brought them peace. The Indian
war was ended.
It is therefore the more tragic that Dermer died of Indian arrow
wounds the next year after a battle with Epenow of Martha’s
Vineyard, an Indian captive who had not made peace with the
English. Had Epenow, instead of Squanto, lived at Plymouth, history
might have run quite differently. Captain Thomas Dermer may be
considered the first of the Plymouth martyrs, who lost his life after
saving a New Plymouth that did not yet exist, though the Mayflower
was on its way when he died.
It is a strange commentary on the justice of history that the men
who had spent their lives on New England colonization had almost
no share in the first successful plantation in Massachusetts. We
have seen what an outpouring of futile struggle men like Gorges and
Smith and Dermer had expended on the failures that set the stage
for the Pilgrims. It was now to fall to the lot of a group of English
exiles, who had lived twelve years in the Netherlands, to arrive by
accident in Massachusetts at the precise moment when the
merchant adventurers, whom they despised, had succeeded in
producing the conditions for success. The Pilgrim legend is well
founded, in the tribute it pays to the forthright courage and
persistence of the forefathers, but it ignores their utter dependence
on the maritime renaissance of England as the foundation on which
their success rested. The line of succession stemming from the
exploits of Drake and Hawkins and the ships that sank the Armada
carried directly on into the efforts of Gosnold, Pring, Gorges, Smith,
Hobson, and Dermer to set the stage for Plymouth. The fur trade and
the fisheries by which New Plymouth finally paid off its creditors had
been painstakingly developed by many hazardous years of
experiment by small shipowners of Bristol and Plymouth and other
smaller havens in the west of England. Faith in New England
ventures, so nearly destroyed by the Sagadahoc failure, had been
kept alive and sedulously cultivated by a little group of earnest men
around Gorges and John Smith, so that money could be available to
finance even the risky trading voyages necessary to keep a foothold
on the coast. We have seen how recently peace had been made
with the Indians.
The Pilgrims ascribed all these blessings to acts of Providence in
their behalf. But Providence has a way of fulfilling its aims through
the acts of determined men. Any visitor to Plymouth who reveres the
Pilgrims should also honor those representatives of the glorious
maritime energies of the Old World whose discoveries and
explorations prepared the way for permanent settlement. To them
also applies the phrase which Bradford used of the Plymouth
colonists:
“They were set as stepping-stones for others who came after.”
 Transcriber’s Notes
Punctuation, hyphenation, and spelling were made
consistent when a predominant preference was found in the
original book; otherwise they were not changed.
Simple typographical errors were corrected; unbalanced
quotation marks were remedied when the change was
obvious, and otherwise left unbalanced.
Illustrations in this eBook have been positioned between
paragraphs and outside quotations.
 *** END OF THE PROJECT GUTENBERG EBOOK EARLY
EXPLORERS OF PLYMOUTH HARBOR, 1525-1619 ***

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