Embed Size (px)
Citation preview
Editorial Committee of the Cambridge Law Journal
Tort: Pragmatism and Abstraction Where Ship Hits ShipAuthor(s): Andrew TettenbornSource: The Cambridge Law Journal, Vol. 45, No. 1 (Mar., 1986), pp. 10-13Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506819 .
Accessed: 12/06/2014 20:48
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].
.
Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.
http://www.jstor.org
This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 20:48:13 PMAll use subject to JSTOR Terms and Conditions
10 The Cambridge Law Journal [1986]
action in contract, the statutory proviso appears to prevent its
operation being "defeated." It is, however, possible to avoid this
conclusion by interpreting the phrase "any defence arising under a
contract" as referring merely to exclusion clauses contained within a
contract and not to defences imposed by law.
Whatever the merits of one's interpretation of the Act, what of the
wider context? If, tabula rasa, an attempt were made at a rational
organisation of this area, four categories of claim might be marked out.
The first category contains claims arising in tort which require fault to
be proved. Such a claim should continue to be subject to the Act. The
second contains contractual claims resting upon breach of a
contractual duty of care ("negligence"), the defendant's conduct
giving rise to concurrent liability in tort based upon fault. The third
category involves a contractual claim for "negligence" which does not
entail concurrent liability in tort. It is submitted that the contractual
claims in both the second and third categories should be covered by the
Act and further, for reasons given above, that no amendment is
necessary to achieve this. The fourth category contains causes of action
in tort and contract which do not require negligence to be established.
It is clear that the Act covers claims in tort but not claims in contract
which fall within this last category. There is good reason for not allowing the defence of contributory
negligence to affect claims in the fourth category. It is much easier to
determine a person's responsibility using a test of strict liability rather
than fault. Not only is settlement facilitated, but it is possible to
adjudicate more efficiently upon those cases which proceed to trial.
These advantages are lost if contributory negligence is admitted as a
complete defence to a claim founded upon strict liability, since
attributing fault is troublesome. A fortiori it is undesirable to mix strict
liability and the defence in its statutory form. This is because the
apportionment of the parties' respective fault is necessarily
impressionistic. N. H. Andrews.
10 The Cambridge Law Journal [1986]
action in contract, the statutory proviso appears to prevent its
operation being "defeated." It is, however, possible to avoid this
conclusion by interpreting the phrase "any defence arising under a
contract" as referring merely to exclusion clauses contained within a
contract and not to defences imposed by law.
Whatever the merits of one's interpretation of the Act, what of the
wider context? If, tabula rasa, an attempt were made at a rational
organisation of this area, four categories of claim might be marked out.
The first category contains claims arising in tort which require fault to
be proved. Such a claim should continue to be subject to the Act. The
second contains contractual claims resting upon breach of a
contractual duty of care ("negligence"), the defendant's conduct
giving rise to concurrent liability in tort based upon fault. The third
category involves a contractual claim for "negligence" which does not
entail concurrent liability in tort. It is submitted that the contractual
claims in both the second and third categories should be covered by the
Act and further, for reasons given above, that no amendment is
necessary to achieve this. The fourth category contains causes of action
in tort and contract which do not require negligence to be established.
It is clear that the Act covers claims in tort but not claims in contract
which fall within this last category. There is good reason for not allowing the defence of contributory
negligence to affect claims in the fourth category. It is much easier to
determine a person's responsibility using a test of strict liability rather
than fault. Not only is settlement facilitated, but it is possible to
adjudicate more efficiently upon those cases which proceed to trial.
These advantages are lost if contributory negligence is admitted as a
complete defence to a claim founded upon strict liability, since
attributing fault is troublesome. A fortiori it is undesirable to mix strict
liability and the defence in its statutory form. This is because the
apportionment of the parties' respective fault is necessarily
impressionistic. N. H. Andrews.
tort: pragmatism and abstraction where ship HITS SHIP
Can one extract any golden rule of liability in negligence for economic
damage? The Privy Council's decision in Candlewood Navigation
Corp. Ltd. v. Mitsui OSK Lines Ltd. [1985] 3 W.L.R. 381 effectively
suggests not: a development either disconcerting or encouraging,
depending on one's viewpoint. Matsuoka Ltd., who (as demise charterers from Mitsui Ltd.) may be
treated as owners ofthe ship Ibaraki Maru, time-chartered her back to
Mitsui Ltd.; so, while she remained in the possession and control of
tort: pragmatism and abstraction where ship HITS SHIP
Can one extract any golden rule of liability in negligence for economic
damage? The Privy Council's decision in Candlewood Navigation
Corp. Ltd. v. Mitsui OSK Lines Ltd. [1985] 3 W.L.R. 381 effectively
suggests not: a development either disconcerting or encouraging,
depending on one's viewpoint. Matsuoka Ltd., who (as demise charterers from Mitsui Ltd.) may be
treated as owners ofthe ship Ibaraki Maru, time-chartered her back to
Mitsui Ltd.; so, while she remained in the possession and control of
This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 20:48:13 PMAll use subject to JSTOR Terms and Conditions
This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 20:48:13 PMAll use subject to JSTOR Terms and Conditions
This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 20:48:13 PMAll use subject to JSTOR Terms and Conditions
This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 20:48:13 PMAll use subject to JSTOR Terms and Conditions
