The Arawa

[1979] EWCA Civ J1213-1 (1979)

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The Arawa

England and Wales Supreme Court of Judicature, Court of Appeal
[1979] EWCA Civ J1213-1 (1979)

Facts

Shaw Savill and Albion Company Ltd. (shipowners) (defendants) shipped frozen lamb carcasses from New Zealand to London, England. The lamb was transported on the Arawa, which also transported passengers and was scheduled to return from London to New Zealand with passengers. The Arawa was slated to arrive in London on Saturday, May 23, 1970. Due to a bank holiday on May 25, the Arawa would not in the ordinary course be unloaded until May 26. However, unloading on May 26 would interfere with the Arawa’s scheduled return to New Zealand. Accordingly, several days before the Arawa’s scheduled London arrival, the shipowners proposed to the cargo owners (i.e., the parties who would receive the lamb in London) (plaintiffs) that the shipowners, at their own expense, arrange for the lamb to be unloaded onto lighters alongside the Arawa and taken to the Chambers Wharf where, if necessary, the carcasses could be put into cold storage. The cargo owners did not respond to the shipowners’ proposal. The shipowners proceeded with their proposal, but a labor action involving the workers on the lighters and the dock led to the delayed unloading of the carcasses, which in turn caused some carcasses to spoil due to the lack of refrigeration. The cargo owners sued the shipowners, claiming that the shipowners were responsible for the spoilage. The shipowners responded that the bill of lading stated that they would not be liable for any loss of, or damage to, the cargo even if such loss or damage was due to the negligence of the shipowners or of their agents or others for whom the shipowners were responsible. Nevertheless, the lower court found the shipowners liable, ruling that the shipowners’ proposal constituted a new contract for the transit of the lamb to the Chambers Wharf and that this new contract did not include the bill of lading’s liability limitation. Per the lower court, the shipowners should have expressly referred to the bill of lading if they wanted to incorporate it in the supposed new contract. The shipowners appealed.

Rule of Law

Issue

Holding and Reasoning (Denning, J.)

Concurrence (Cairns, J.)

Concurrence (Bridge, J.)

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