标题: scrutton on c/p 危险货物 [打印本页]

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作者: denning_lee    时间: 2011-2-17 12:24     标题: scrutton on c/p 危险货物

scrutton on c/p
1 危险货物 BAMFIELD v GOOLE AND SHEFFIELD TRANSPORT COMPANY, LIMITED [1910] 2 KB 94 上诉庭
（1）By Vaughan Williams L.J.: It was, on the shipment of such an article as ferro-silicon, the duty of the defendants to communicate to the plaintiff's husband such information as they had as to the nature of the article which they were shipping on his keel, and, therefore, to describe it, not as general cargo, but by the name of ferro-silicon, and by reason of neglect of that duty they were liable.
在托运具有危险性质的货物时，这是托运人或者货主的责任通知承运人/船东关于货物性质他们所知道的性质，而不应该将危险品定义为杂货，应该是具体托运货物的名称以及性质，由于发货人疏于履行这个责任他们应该承担船东/承运人的损失
By Fletcher Moulton L.J. and Farwell L.J.: Where a consignor who delivers goods to a common
carrier, for carriage by him in performance of his common law obligation to carry, does not give notice to the carrier that the goods are dangerous, he must, unless the carrier knows, or ought to know, the dangerous character of the goods, be taken impliedly to warrant that the goods are fit for carriage in the ordinary way, and not dangerous.
除非承运人/船东知道或者理应知道（这是一个事实问题通过举证等），托运人必须将货物的危险性质通知船东，以及默示的保证货物是适合通过正常方法运输的，不是危险货物
（2）高院判决：A:The learned judge found, as the result of the evidence, that, though most ferro-silicon did not, under any conditions /to which it would ordinarily be exposed in carriage, give off dangerous gases, still some ferro-silicon did under certain ordinary conditions to which it
might be exposed /either in a keel on a canal, or in a ship at sea, give off very poisonous gases,
法官发现：作为证据，尽管大部分的这类货物在通常运输的条件下并不会产生有毒气体，但是仍旧有一些的货物在一定的条件下，无论在什么样的运输工具下，会产生有毒的气体
B and, therefore, that, though ferro-silicon might or might not be dangerous, still it was always liable to be dangerous, and in that sense a consignment of ferro-silicon was a dangerous substance, and calculated to do damage.
尽管这类货物有可能危险有可能不危险，仍然是有可能造成危险，在那种意义下托运此类货物是一个危险的事情，会造成损害（针对这点个人还是赞同的，但也无形之中放宽了危险品的定义，因为是否具有危险性质这个问题属于是事实问题，需要举证）
C He found that the plaintiff's husband did not know that the goods which he received from the defendants were dangerous, and that no negligence could be imputed to him in respect of his not knowing that they were dangerous.
作为船东接受托运货物，除非有合理的理由或者方法，否则其不存在在不知道托运货物为危险物方面有疏忽的责任（这个奖托运货物性质通报的责任加于托运人也合情合理）
D The learned judge further found that the defendants did not in fact know that ferro-silicon was dangerous, and, with regard to the allegation that they ought to have known that it was dangerous, he was of opinion that, if it were necessary for him to arrive at a conclusion as to that, he should not, though the question was not an easy one, find, upon the evidence, that there was any negligence on the part of the defendants in not knowing that the ferro-silicon was dangerous, or that knowledge that it was dangerous ought to be imputed to them.
但是针对本案的情形，被告并非货主或者所有人，只是货运代理并不知情托运的货物为危险物，高院法官并不愿意在不知道其所托运的货物为危险物方面判决被告有疏忽或者失职（法官裁定原告胜诉的理由在于先例判决被告应该对此负责）
注释：高院的判例有其自相矛盾之处，逻辑推理出现问题，这样讲托运危险货物的责任变为强制的绝对的，有待上诉庭的进一步厘清。
（3）VAUGHAN WILLIAMS L.J: But I have come to the conclusion that we ought, following the judgment of Crompton J. in that case, to dismiss the appeal on the ground that the defendants owed a duty to Bamfield to communicate such information as they had /as to the nature of the goods sent in the barge; and that through their servants they were guilty of negligence and want of care in not communicating to the carrier the name, which they knew, of this somewhat unusual cargo.to be 本案的一个关键问题在于托运人(作为货代法官裁定事实其不应该知道他所托运的货物为危险货物)
（4）FLETCHER MOULTON L.J:
The cardinal fact in this case is that common carriers have a duty to carry the goods tendered to them for a fair price unless there is a reasonable excuse, and, these goods being tendered to him as general cargo by the defendants, the plaintiff's husband was in law bound to carry them, unless there was a reasonable ground for his refusing to do so.
这里还有一个关键事实那就是本案的承运人，除非有合理的理由否则其不能拒载货物(这是否是促使法官判决有一个默示责任提供适合运输的货物或者不是危险品呢,如果是普通的班轮呢?)
It follows that it does not depend upon any scienter on the part of the shipper.
If he calls upon the carrier to perform the common law, duty of carrying the goods, he must take care either that he gives notice of their nature or that they are fit to be carried as ordinary goods.
托运人是否承担责任不是取决于托运人是否有意,如果他要求承运人运输货物,他必须采取合理谨慎通知承运人或者是这些货物是普通货物适合一般运输(也就是一个绝对的责任或者保证,也就是在托运危险货物方面不是一般的合理注意而是一个较严格的责任在托运人的头上,善意行事是不够的)
（5）Brass v. Maitland6 E. & B. 470.In delivering the judgment of the majority of the Court Lord Campbell C.J. says n(1) : "Where the owners of a general ship undertake that they will receive goods and safely carry them and deliver them at the destined port, I am of opinion that the shippers undertake that they will not deliver, to be carried in the voyage, packages of goods of a dangerous nature which those employed on behalf of the shipowner may not on inspection be reasonably expected to know to be of a dangerous nature, without expressly giving notice that they are of a dangerous nature."
In such a case Lord Campbell C.J. says n(2) : "There was no occasion for the defendants to give any express notice and they cannot be charged with any breach of duty in putting the packages on board, however dangerous they might be." The true inference in such a case is that the carrier consents to carry them with knowledge of their nature, and therefore he takes upon himself both the obligation to take adequate precaution in the carriage and the consequences of his thus carrying them. 如果船东知道或者理应知道其所运输的货物的性质,那么他承担了谨慎照料这些货物的责任以及他运输危险货物所能产生的后果,划分点为船东是否知道或者理应知道
（6） FARWELL L.J 直接针对了托运人不知道货物性质也不知道货物的危险后果的问题,推理过程船东不可能也不现实逐项询问,而且是托运人要求运输货物那么就有责任通知其货物的性质,或者通过适当的询问,托运人本身并不知情并不能免除其通知的义务或者默示保证托运的货物不是危险品.

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作者: denning_lee    时间: 2011-2-18 13:54

2 [1952] Vol. 2  Lloyd's Rep. 371    MINISTRY OF FOOD v. LAMPORT &HOLT LINE, LTD. 高院
（1）-Held, on the claim, that shipowners, being aware of the nature of the cargo of tallow loaded in the 'tween deck, failed in their duty to take adequate precautions for the protection of maize stowed in the hold below;
在原告的索赔当中（原告作为收货人）知道动物油脂的特性，在适当采取措施保护所运输的玉米方面失职
that the tallow was not improperly or insufficiently packed; that Clause 2 of the bill of lading did not protect shipowners from liability to plaintiffs for maize damage arising from leakage of tallow; and that accordingly plaintiffs were entitled to judgment.
动物油脂没有适当的包装，提单中的免责条款并不能保护船东由于货物泄漏对于货物的损坏的责任，所以原告有权获得赔偿

-Held, on the counterclaim, that although it was to be implied that shippers should warn shipowners of the dangerous character of cargo shipped, the shipowners in fact had notice of everything material regarding the tallow; and that therefore such implied term did not avail the shipowners - Counterclaim dismissed.
尽管默示托运人应该警告船东关于所托运货物危险性之，但是实际上船东是知晓关于动物油脂的性质（通过不同的提单上有显示货物的名称）所以当船东知晓时或者理应知晓时，这个默示条款并不能帮助船东

-Question whether Sect. 1 of Bills of Lading Act, 1855, operated to transfer to consignees shippers' liabilities to shipowners// incurred prior to indorsement, undecided.
关于1885年提单法中的在提单背书给收货人前托运人对船东应付的责任是否相应的转移给收货人（被背书人，这个问题并没有决定）
（2）收货人的两票货物，一票为动物油脂被积载在另一票货物玉米上面，油脂包装泄漏损坏玉米
（3）I refer to the passage which was quoted to me in the course of the case from Paterson Steamships, Ltd. v. Canadian Co-operative Wheat Producers, Ltd., [1934] A.C. 538; 49 Ll.L.Rep. 421, where, in the course of his speech, Lord Wright says this (at pp. 544 and 426 of the respective reports):
It will therefore be convenient here, in construing those portions of the Act which are relevant to this appeal, to state in very summary form the simplest principles which determine the obligations attaching to a carrier of goods by sea or water. At common law, he was called an insurer, that is he was absolutely responsible for delivering in like order and condition at the destination the goods bailed to him for carriage. He could avoid liability for loss or damage only by showing that the loss was due to the act of God or the King's enemies. But it became the practice for the carrier to stipulate that for loss due to various specified contingencies or perils he should not be liable: the list of these specific excepted perils grew as time went on.
在普通法下，承运人有一个严格的责任完好的交付货物，只有在证明损失是由于不可抗力以及公敌等情况下才不需要负责，但是实际上承运人经常规定一些特殊的风险造成的损失其不负责
And a little lower down the learned Lord quotes from the speech of Lord Sumner in F. C.

Bradley & Sons, Ltd. v. Federal Steam Navigation Company, Ltd., (1927) 27 Ll.L.Rep. 395, at p.
396, as follows:
The bill of lading described the goods as "shipped in apparent good order and condition" . . .
it was common ground that the ship had to deliver what she received as she had received it, unless relieved by excepted perils. Accordingly, in strict law, on proof being given of the actual good condition of the apples on shipment and of their damaged condition on arrival, the burden of proof passed from the consignees to the shipowners to prove some excepted peril which relieved them from liability, and further, as a condition of being allowed the benefit of that exception, to prove seaworthiness at Hobart, the port of shipment, and to negative negligence or misconduct of the master, officers and crew with regard to the apples during the voyage and the discharge in this country.
当在装港是良好的状态在交付的时候货物损坏，举证的责任从收货人到船东以证明一些除外风险将免除他们的责任
（4 ）关于提单中的免责条款：as follows: That the master, owners, or agents of the vessel, or its connections shall not be responsible for loss, damage, or injury arising from insufficiency of packages in size, strength, or otherwise, bursting of packages or consequences arising therefrom,
leakage, breakage, wastage, inherent vice of merchandise . . . effects of climate . . . Heat.

（5）Thrift v. Youle & Co., (1877) 2 C.P.D. 432. I turn at once to read what Mr. Justice Denman said in that case, at p. 434:
The sole question for our consideration is the meaning of the word "leakage." Some goods, such
as oil stored in barrels, are apt to leak; and by the insertion of this word it was intended to protect the shipowner from liability to compensate the owner of the goods for the waste occasioned by leakage. I do not think the word can have a more comprehensive meaning. In like manner, by the use of the word "breakage," it was merely intended that the shipowner should be absolved from liability in respect of goods broken during the voyage; it would be absurd to suppose that it could extend to damage done by the broken goods to other goods.
关于泄漏，法官认为是船东不需要对于泄漏掉浪费的货物负责，而爆裂也是针对爆裂的货物本身，但是法官不认为可以延伸到免除由于爆裂对于其他货物所造成的责任
Mr. Justice Grove gave a judgment to the same effect, but in the course of his observations he
said this (sup., at p. 434):
The words in the bill of lading simply mean that if the goods shipped are injured by rust, or if the casks containing them become leaky or are broken, the shipowner is not to be accountable; there is nothing in the bill of lading to show that the clause is to be extended to remote consequences.

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作者: denning_lee    时间: 2011-2-26 14:12

3  [1968] Vol. 2  Lloyd's Rep. 57 MICADA COMPANIA NAVIERA S.A. v. TEXIM  高院      
（1）"6. Contrary to the information previously received by the Master that the vessel was to load Iron Ore, a cargo of Iron Ore Concentrates was loaded by the Charterers. The Master did not become aware of this until some days after loading commenced, but he was not negligent in failing to become so aware earlier. He was not given any details of the nature of the cargo or any instructions as to its loading or stowage, both of which operations were performed by the Charterers.
在发现装上铁精矿方面船长并没有疏忽，是租家有意误导，没有任何关于货物的性质以及如何装卸以及积载的指示，所有的这些操作都是由租家完成的（本来租家指示要装的是铁矿石）
（2）Clause 2, so far as is material, is in these terms:
The Vessel to be employed in lawful trades for the carriage of lawful merchandise only between good and safe ports or places where she can safely lie always afloat whilst performing the following voyages:
and then the voyages are set out:
No live stock nor injurious, inflammable or dangerous goods (such as acids, explosives, calcium carbide, ferro silicon, naphtha, motor spirit, tar, or any of their products) to be shipped.解释这个such as的法官认为是列举法，而不是仅仅将危险货物限制在列举的几个种类之中
（3）关于铁精矿是否属于危险货物，仲裁员认定由于含水量的问题这是一个危险货物，以及船长或者船东对于装卸的铁精矿的含水量毫不知情而且托运人进行了误导，以及在船长采取了所有的合理步骤以尽力的确认其含水量（可以说在船东有机会查验货物性质方面，船东并没有任何的过失，如果船东有机会确定货物是否属于危险货物则情况两说）所以租家
违反了租约的条文，是违约需赔偿船东损失         
（4）关于危险货物的在中途处理，虽然本案并没有发表更多的观点，在正常情况，租家应该负责危险货物的处理卸载重新装载的合理支出与费用。      

4  [1946/47] Vol. 80 Ll.L.Rep.  289 C. BURLEY, LTD. v. MAYOR,ALDERMEN AND COUNCILLORS OF METROPOLITAN BOROUGH OF STEPNEY.  高院
（1）- Held, that there was implied a warranty that goods delivered for carriage were not in
themselves dangerous (whether or not the person delivering such goods knew of such danger),
but that that warranty was negatived by the express term of the agreement; and that, there being no proof of negligence on the defendants' part in allowing such refuse to be tipped into plaintiffs' barges, the plaintiffs' claim failed.
在运输货物的合约中有一条默示保证那就是货物本身没有危险性（无论托运货物的人是否知晓货物为危险品）但是这个默示保证可以被书面合约中的明示条款推翻，没有证据表明被告有疏忽，所以判决原告的索赔失败
Per Hallett, J. (at p. 294): Upon the whole it seems to me that the balance of authority is in favour of the view that there is an implied warranty that goods delivered for carriage are safe to be carried, and that is so irrespective of whether the person delivering the goods to be carried knows of the danger, and irrespective of whether the person to whom they are delivered is under a common law duty or a statutory duty to carry them
不论交运货物的人是否知道这个危险特性，也不论运输的人是否有一个普通法的责任或者法律责任来运输这些货物，
（2）本案是一个托运工业废物的案例，虽然比较特殊的案件事实，但是货物运输大的原则没有改变
（3）13. That the Council shall not be held responsible for any damage or mischief caused by or through the refuse after it has been shot for disposal into the contractors' barge or barges and such refuse shall then be and shall be deemed to be under the jurisdiction of the contractors for which they shall be held entirely responsible.
16. The contractors shall bear all risk and responsibility of whatever kind which shall attend or result from the execution of this contract and shall at their own expense forthwith make good all damage consequential or otherwise which may at any time and from time to time occur by accident or otherwise to any barge ship or craft of any description or to any buildings or premises during the period of this contract it being expressly stipulated that the Council shall not be in any way liable to make good such damage or in respect thereof but that the contractors shall keep the Council wholly indemnified therefrom and from all claims demands and expenses in any way relating thereto. . . .法官判决免责条款十分广泛足够保护被告的责任，而这个托运危险货物的默示保证也被这个条款所否定
（4）Those, I think, being the facts, I then have to consider what is the legal position. I hope I have already made it sufficiently clear that neither the plaintiffs servants nor the defendants' servants knew that this material which was being tipped into the barges was dangerous, and in so far as it is material, I should express my judgment that neither of them could reasonably be expected to know that this material which was being tipped into the barges was dangerous.原被告双方都没有知道在驳船上的物质是危险性，就重要性而言，法官明确表示出，原被告双方都不可能合理的预计到在驳船上的货物是危险性。（这个更作为一个事实问题）

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作者: denning_lee    时间: 2011-2-26 14:14

5  [1994] Vol. 2  LLOYD'S LAW REPORTS 171   EFFORT SHIPPING CO. LTD.
v.LINDEN MANAGEMENT S.A. AND ANOTHER 高院
（1）-Held, by Q.B. (Com. Ct.) (Longmore, J.), that (1) in the light of all the evidence from
Africa, the Dominican Republic and Puerto Rico, the Khapra Beetle was found in hold 4 and only
in hold 4, i.e. the hold into which the ground-nut cargo had been loaded (see p. 175, col. 2; p. 176, col. 1);证据表明虫害只发生在装载所托运花生的那个舱
(2) it was most unlikely that the Khapra beetle came on board with the previous rice cargo from Vietnam which was not a recognized source of Khapra beetle; and it was not likely that the Khapra beetle larvæ and adults found in hold 4 at the end of the voyage were Khapra beetle (or the issue of Khapra beetle) introduced to the vessel before April 1989 when the owners acquired the vessel (see p. 177, col. 1);
不太有可能这个虫害是在上一个从越南来的大米上留下的，因为大米并不是这个虫害的来源
(3) on the balance of probabilities Khapra beetle came on board the vessel with the ground-nut cargo because the infestation was found in hold 4 which contained the ground-nut cargo and not in any other hold (see p. 177, col. 2); 从证据显示来看，高院法官裁定虫害是所托运的货物上船的（花生在托运的时候就有这个虫害了）
(4) the effective cause of the vessel’s inability to discharge was the justified apprehension on the part of the Dominican authorities that the cargo contained Khapra beetle rather than living insects (see p. 178, col. 2);关键原因阻止了卸货是由于花生中含有这个虫（这个是对事实的认定）
(5) if the Hague Rules did not deal with non-physically dangerous goods one could not determine the rights of the parties in relation to such cargo by reference to the rules; the words "goods of a dangerous nature" in art. IV of the Hague Rules meant goods that were physically dangerous; and the normal meaning of the word "dangerous" in relation to goods appeared to imply that the goods were such as to be liable to cause physical damage to some object other than themselves (see p. 180, col. 1);
危险的定义一般来说容易对其他货物造成实际的损害，而不是其他，海牙规则中的危险货物意味着实际危险的货物（高院法官的这个解释我个人认为是过于狭窄的）
(6) there was not any physical damage to the vessel although there was damage to the other cargo since it had eventually to be dumped at sea and was totally lost; it was known to the shippers that any cargo infested with Khapra beetle would be very likely to be rejected at destination; the rejection and the subsequent dumping of other cargo on board the same vessel was a natural and not unlikely consequence of shipping Khapra infested cargo, which was thus dangerous in the sense of being liable to give rise to the loss of other cargo shipped in the same vessel; ground-nuts shipped by the defendant shippers were "goods of a dangerous nature" within art. IV, r. 6 of the Hague Rules (see p. 180, cols. 1 and 2);
托运人知道有这种虫害的花生很可能被卸货港当局拒绝，这样的拒绝和随后的将其他货物弃船，是一个自然的和很可能的托运被虫害污染货物的后，所以这个货物在容易引起对于其他货物损坏方面是危险的（托运人对于托运有虫害发生的花生所产生的后果是有合理预期的），所以这个托运人托运的花生在海牙规则中是有害的
(7) the Hague Rules imposed a strict liability on the shipper for damages and expense arising out of or resulting from the shipment of goods of a dangerous nature; the shipper could not argue that he did not know and had no means of knowledge that the goods were dangerous; the obligation of the shipper was wider at common law because he could be liable for the shipment of non-dangerous goods, such liability arising even if he did not know or have the means of knowledge of the defect in the cargo which was likely to cause danger or delay (see p. 180, col. 2; p. 181, col. 1);
海牙规则在托运人身上有一个严格的责任，由于或者起因于托运这些危险货物所引起的损害或者费用 托运人在海牙规则下不能辩称自己不知道或者没有手段知道这些货物是危险的
托运人在普通法下有一个更宽泛的责任，因为他有责任装运不具备危险性的货物，这种责任甚至在托运人不知道或者没有办法知道货物危险的情况下仍然存在，对于花生有虫害这种危险法官判定属于海牙规则所说的危险货物
- Mitchell v. Steel, [1916] 2 K.B. 610, applied.
(9) under the Bills of Lading Act, 1855 a shipper’s liabilities remained and were not transferred; the shipowners loss arose from the act of shipping infested ground-nuts and the shipper’s liability for loss of that kind /could not be transferred away from the shipper by virtue of the shipper endorsing the bill of lading to a third party; the shippers were liable to the plaintiff shipowners (see p. 181, col. 2; p. 182, col. 1);
关于上述的责任不因托运人通过背书将提单转让第三人而解除。
-The Athanasia Comninos, [1991] Lloyd’s Rep. 277, considered.
5.1 海牙规则危险货物上诉庭 [1996] Vol. 1  LLOYD'S LAW REPORTS   577   
（1）The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.托运人的免责条款，不是由于托运人的行为过失疏忽所导致的或者引起的损失或者损害（托运人以此条作为抗辩其不知道有虫害的货物，事实问题是托运人在托运的时候确实不知道或者没有手段知道这些货物已经遭受虫害了）
What is the impact of art. IV, r. 6 of the Hague Rules on the present case? This rule provides as follows:
关于海牙规则中危险货物
Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier, has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.托运人将补偿所有的由此或者起因于此托运的直接或者间接的损害或者费用
I would therefore hold that the word "act" in r. 3 bears its natural and ordinary meaning and is apt to include the act of shipment itself, and that the  undertaking under r. 6 is absolute and not qualified.上诉庭裁定行为包好托运人托运，以及在6条的托运人托运危险货物的责任是绝对的和没有限制
（2）关于虫害的花生对于其他货物来说构成物理上的威胁，上诉庭同意了这个说法，但是关于虫害是否是对于船舶的危险，上诉庭并未裁定
（3） In my judgment it would require very clear words indeed to divest the owner of his rights
against the shipper (with whom he is in contractual relationship) and leave him with his sole remedy against a complete stranger who happens to be the consignee of the goods or the endorsee of the bill of lading, of whose whereabouts and financial stability he knows nothing, and who may be a man (or enterprise) of straw.关于托运人背书转让提单后，并不免除其托运危险货物而引起的责任，这个责任并未随着提单与提单权利而转移
（4）correctly identified by the learned Judge, namely that r. 6 relates only to physically dangerous goods, and not to goods which are legally dangerous in that they are likely to involve detention or delay; 海牙规则是有关直接物理上的危险，在法律方面货物存在危险应该适用普通法，其中包括延迟和延滞损失   
（5）除非明确通知以及船东之情，默示保证托运人不能托运具有危险性之的货物，关于这个保证是不是绝对的不加任何限制的？In the Great Northern Railway Co. case (Lords Justices Bankes, Scrutton and Atkins) the Court unanimously approved Brass’s case, as exemplified for example in the judgment of Lord Justice Scrutton at p. 762 where he stated:
Bamfield v. Goole & Sheffield Transport Co., [1910] 2 K.B. 94 and
Great Northern Railway Co. v. L.E.P. Transport [1922] 2 K.B. 742. 这个责任是绝对的没有限制，无论包括托运人是否知情或者理应知情。
I would therefore hold that the common law undertaking in its entirety is absolute, and that the second limb关于法律上的危险 applies here, seeing that, on any view, the shipment of the infested cargo was likely to involve detention and delay of the vessel, as in fact occurred.

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作者: denning_lee    时间: 2011-2-26 14:14

6 [1923] 1 KB 31TRANSOCEANICA SOCIETA ITALIANA DI NAVIGAZIONE
v. H. S. SHIPTON & SONS.
（1）Held, that no warranty that the barley was capable of being handled and unloaded expeditiously and effectively by the machinery and appliances in ordinary use at the port of discharge could be implied, and that therefore the plaintiffs were not entitled to recover in respect of the extra time taken in the discharge.
Acatos v. Burns (1878) 3 Ex. D. 282 applied. Mitchell, Cotts & Co. v. Steel Bros. & Co. [1916] 2 K. B. 610 distinguished.
Held further that the plaintiffs were entitled to recover from the defendants a portion of the extra charges incurred in respect of the discharge, because a request by the defendants to the plaintiffs to assent to the increased charges on behalf of the defendants must be implied in law.
（2）思路：无论托运人是否知道或者理应知道，有一个严格的无限制的责任默示保证托运人不得托运危险性质的货物，这个责任并不随着提单的流转而在收货人的头上（1996上诉庭先例），而且上述的大前提船东对于托运货物的危险性质毫不知情，如果船东有机会查验货物或者知道所托运货物的性质那么这个默示保证将不复存在
（3）MCCARDIE J: I see no reason to doubt that the shipowners did know, and certainly could have known as fully as the shippers, the nature and description of the cargo.

7 [1920] 1 KB 332 OWNERS OF SPANISH S.S. SEBASTIAN v DE VIZCAYA
（1）Held, that as the owners had, through their agents, knowledge at the time the cargo was loaded that it was necessary to obtain an export licence, which might involve delay, the charterer was not liable for the detention of the steamer.
在装货的时候船东通过其代理已经知道必须取得这个出口许可证，其可能会有延迟，因此租家不负责船舶的延滞损失
（2）The doctrine does not apply if at the date when the cargo is tendered for shipment both parties are aware of its dangerous character.
（3）But in all the cases where the charterer has been held liable for the consequences of shipping a dangerous cargo there has been knowledge on the part of the charterer and ignorance on the part of the shipowner of the character of the cargo. On the other hand where both parties agree that a specific cargo shall be shipped, the nature of which is known to both of them, and when the particular difficulty which may arise is also known to both parties at the time the cargo is loaded, the charterer is not liable for any delay which may arise through shipping that particular cargo.在任何情况下租家负责托运危险货物而产生的后果是当租家知道而船东对此货物性质毫不知情的情况下，换句话说，当双方同意托运模样特殊的货物的时候，这个货物的性质对于双方来说是已知的时候，当可能产生特殊困难依然被双方知道的时候，租家对此托运货物所产生的后果和延迟并不负责

7 THE DOMALD. [1920] P 56
（1）Held, that as the cargo owners were innocent and had not concealed from the shipowners any material facts, and as the loss arose solely from the justifiable exercise of belligerent rights, it must lie where it fell.
因为货主是无辜的，以及并没有向船东隐瞒任何关于货物的关键信息，而且船东所遭受的损失是由于正当行使交战国权利
（2）THE PRESIDENT (SIR HENRY DUKE)ord Sterndale in The Einar Jarl. n(2) Claims similar to these made here were raised by shipowner against cargo owner, and were disallowed. In discussing them Lord Sterndale said: "I can see no reason whatever why, where you have two innocent persons, as you have in this case, neither of whom has done anything which is a breach of contract, but who have been prevented from performing it by the act of a belligerent, and loss has been occasioned to one of these parties, I should transfer that loss from the shoulders of one innocent party to the shoulders of the other."


8 [1991] Vol. 2 LLOYD'S LAW REPORTS 101   GENERAL FEEDS INC. V. BURNHAM SHIPPING CORPORATION (THE "AMPHION") 高院 Mr. Justice Evans
（1）5(b) F.I.O. and free stowed/trimmed.
The cargo shall be brought into the holds, loaded, stowed and/or trimmed and taken from the holds and discharged by the charterers . . . free of any risk liability and expense whatsoever to the Owners . . .
28. Fishmeal must be shipped under deck and be loaded/stowed discharged according to IMO and local regulations . . .
（2）这是一个关于装载鱼粉，而引起的自燃事件，签发了两份证明文件，证明鱼粉抗氧化剂处理得当，In their findings the arbitrators stated inter alia that random sampling 随机抽样was performed the purpose of /which was to ensure that all the fishmeal was treated but small patches of insufficiently treated fishmeal/ could evade detection.少数有问题处理的包装将会逃避抽查 It was sufficient for just one bag or even half a bag containing fishmeal improperly treated to cause smoke heat damage or even fire.
仅有一个或者半个含有鱼粉的袋子不适当处理就足以引起烟雾甚至是火灾，仲裁庭认为这个是严格责任
The charterers appealed contending inter alia that the shipowner accepted some slight risk that even the correct cargo, one that had been properly treated, could overheat.
船东接受了轻微的风险，关于是甚至正确装载处理的货物可能会产生过热的风险
（3）If the cargo shipped did not conform with this description, then prima facie the charterers were in breach of the charter-party, and they are liable to the shipowners for loss and damage suffered by them as a result. But if the cargo complied with the description, then the shipowners fail to establish the breach of contract on which, at least primarily, they rely.
如果装运的货物并不满足这个描述的时候，初步表明租家违反了租约，以及他们要负责船东所遭受的损失或者损害，但是如果货物满足租约的描述，那么船东最起码没有能够证明租家违反了合约
（4）为什么要证明上诉第三个问题，法官和仲裁员的逻辑在于：如果所托运的鱼粉确实接受了合理的适当的处理，那么船东接受了这个托运也就是代表船东愿意接受托运货物而产生的一定的风险（因为船东肯定也是知道鱼粉货物的自然特性即使经过适当的处理），但是如果船东接受的货物不符合租约的描述不符合有关组织的规定，那就反之，这个推理过程是正确的也合理的分配了托运鱼粉货物的风险
In other words, whilst there may be some residual risk even with a properly treated cargo, and the shipowners accepted that degree of risk (par. 14 finds that "the Owners admitted that they accepted some slight risk", a passage much relied upon by the charterers before me), that was not the risk which materialized here. The presence even of "a minute quantity of inadequately treated or untreated fishmeal" (par. 18) meant that the cargo did not comply with the contractual description, and the chartererswere in breach accordingly.
（5）When there is, as here, a charter-party obligation to load cargo of a certain description, then the cargo in fact shipped either complies with that description, or it does not.
If cargo answering that description carries with it some risk for the shipowners, then by agreeing to carry it the shipowner has accepted that risk.
If it does not, then the shipowner can prove prima facie that the charterer shipped a non-conform and therefore non-contractual cargo, by proving that an accident occurred despite strict compliance with the standards of proper carriage. This prima facie proof may of course be displaced by further evidence, but the issue remains the same; did the cargo shipped answer the contractual description, or not? 法官对其逻辑推理进行了阐述，符合上述第4点的说法
以下是法官给我们阐述的几个具体的解决思路：
(a) Where there is a contractual description of the cargo required to be loaded, it is a question of fact whether the goods in fact shipped complied with that description, or not.
(b) If there is a known risk of danger to the ship, which cannot be altogether avoided by strict compliance with the rules of safe carriage, then by agreeing to carry goods of that description the shipowner may be held to have accepted that risk for himself.
(c) Proof that the rules of safe carriage were complied with will establish prima facie that the cargo did not comply with the contractual description, unless the shipowner accepted some residual risk for himself, as in (b).
(d) The acceptance of risk, however, is only one factor to be considered when deciding whether the goods on shipment complied with the charter-party description, or not.
(e) In cases like the present, which are governed by the issue as to the contractual description of the goods, further questions as to implied terms and collateral warranties do not, without more, arise.

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作者: denning_lee    时间: 2011-2-26 14:15

9 [1916] 2 KB 610 MITCHELL, COTTS & CO. v STEEL BROTHERS & CO., LIMITED
（1）Whatever may be the full extent of the obligation upon a shipper of goods, it amounts at least to an undertaking by him that he will not ship goods likely to involve unusual danger or delay to the ship without communicating to the shipowner facts which are within his knowledge indicating that there is the risk, provided that the shipowner does not and could not reasonably know those facts.无论托运人的全部义务是什么，最少可以称得上托运人承诺他将不会托运那些货物，这些将可能导致不同寻常的危险或者造成船舶的延误，而没有通知船东有关他们所知道的信息，当然加入船东不知道或者不能合理的知道这些危险的情况
The shippers of a cargo of rice upon a vessel they had chartered for a voyage to Pir*64*s knew that the rice could not be discharged there without the permission of the British Government, although they thought that they might obtain the permission. In fact they were unable to procure it, and the ship was in consequence delayed. The shipowner did not and could not reasonably have known that the permission was necessary:-
托运人知道在除非在卸货港获得英国政府的许可否则不得卸货，尽管他们认为他们将获得这个许可，事实上他们无法取得这个许可，后果船舶因此延迟了，船东不知道也没有合理的利用知道这个英国政府的许可是必需的
Held, that the delay arose from a breach by the charterers of their obligation to the shipowners, and that therefore the shipowners had a cause of action against them in respect of the delay so caused.
Judgment of Crompton J. in Brass v. Maitland (1856) 26 L. J. (Q.B.) 49, 57, followed.
（2） a shipment of goods which might involve the ship in danger of forfeiture or delay - is precisely analogous to the shipment of a dangerous cargo which might cause the destruction of the ship

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