Bingham早期精彩判决，高明地distinguish了Captain v Far Eastern Steamship Co.
- Frozen chicken was shipped from a U.K. port, then discharged and stored for almost a week at Le Havre before being loaded on board another ship for carriage to Saudi Arabia.
Bingham J:
As Mr. Justice Devlin pointed out in Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd., [1954] 1 Lloyd's Rep. 321 at pp. 329, the rights and liabilities under the rules attach to a contract or part of a contract.
As persuasive authority for this submission, Counsel relied on Captain v. Far Eastern Steamship Co., [1979] 1 Lloyd's Rep. 595, where a shipowner seeking to rely on the Hague Rules scheduled to the Canadian Carriage of Goods by Water Act was held disentitled to do so because the damage to the cargo had occurred during a lengthy period of storage ashore between two voyages. I do not, however, think that this decision gives much assistance, because the shipper there was told when the contract was made that there would be transhipment and there were separate bills of lading for the two legs of the journey. The present case is factually different. The answer to this problem is again to be found in the principle that the rights and liabilities under the rules attach to a contract.
It was said (by the carrier) that the interval of storage at Le Havre was not carriage by sea and so not covered by the rules. …The answer to this problem is again to be found in the principle that the rights and liabilities under the rules attach to a contract. …If, during that carriage, OCL chose to avail themselves of their contractual right to discharge, store and tranship, those were, in my judgment, operations "in relation to and in connection with the carriage of goods by sea in ships", to use the language of the Act, or were "within the contractual carriage", to use the language of cl. 21 (2) of the bill of lading conditions.
It would, I think, be surprising if OCL could, by carrying the goods to Le Havre and there storing the goods before transhipment, rid themselves of liabilities to which they would have been subject had they, as contemplated, shipped the goods at Southampton and carried them direct to Jeddah, the more so since Mayhew had no knowledge of any voyage to Le Havre. My conclusion is that the rules, having applied on shipment at Shoreham, remained continuously in force until discharge at Jeddah.
27 March 2008
英国仲裁法的理念和发展方向（Lord Wilberforce)
Lord Wilberforce on the future of arbitration law:
I would like to dwell for a moment on one point to which I personally attach some importance. That is the relation between arbitration and the courts. I have never taken the view that arbitration is a kind of annex, appendix or poor relation to court proceedings. I have always wished to see arbitration, as far as possible, and subject to statutory guidelines no doubt, regarded as a freestanding system, free to settle its own procedure and free to develop its own substantive law - yes, its substantive law. I have always hoped to see arbitration law moving in that direction. That is not the position generally which has been taken by English law, which adopts a broadly supervisory attitude, giving substantial powers to the court of correction and otherwise, and not really defining with any exactitude the relative positions of the arbitrators and the courts.
Other countries adopt a different attitude and so does the UNCITRAL model law. The difference between our system and that of others has been and is, I believe, quite a substantial deterrent to people to sending arbitrations here.. . .How then does this Bill stand in that respect? After reading the debates and the various drafts that have been moving from one point to another, I find that on the whole, although not going quite as far as I should personally like, it has moved very substantially in this direction. It has given to the court only those essential powers which I believe the court should have; that is, rendering assistance when the arbitrators cannot act in the way of enforcement or procedural steps, or, alternatively, in the direction of correcting very fundamental errors.
I would like to dwell for a moment on one point to which I personally attach some importance. That is the relation between arbitration and the courts. I have never taken the view that arbitration is a kind of annex, appendix or poor relation to court proceedings. I have always wished to see arbitration, as far as possible, and subject to statutory guidelines no doubt, regarded as a freestanding system, free to settle its own procedure and free to develop its own substantive law - yes, its substantive law. I have always hoped to see arbitration law moving in that direction. That is not the position generally which has been taken by English law, which adopts a broadly supervisory attitude, giving substantial powers to the court of correction and otherwise, and not really defining with any exactitude the relative positions of the arbitrators and the courts.
Other countries adopt a different attitude and so does the UNCITRAL model law. The difference between our system and that of others has been and is, I believe, quite a substantial deterrent to people to sending arbitrations here.. . .How then does this Bill stand in that respect? After reading the debates and the various drafts that have been moving from one point to another, I find that on the whole, although not going quite as far as I should personally like, it has moved very substantially in this direction. It has given to the court only those essential powers which I believe the court should have; that is, rendering assistance when the arbitrators cannot act in the way of enforcement or procedural steps, or, alternatively, in the direction of correcting very fundamental errors.
18 March 2008
Letter of Credit: Classic Judgement in 1957
就四页的判决，没几句话，但句句中point。
HAMZEH MALAS & SONS v. BRITISH IMEX INDUSTRIES LTD.
1957 Dec. 10.
[1958] 2 Q.B. 127
JENKINS L.J.
It appears that when the first consignment of steel rods arrived they were, according to the plaintiffs, by no means up to contract quality and many criticisms were made on that score. That is a matter in issue between the parties. In the meantime the plaintiffs wish to secure themselves in respect of any damages they may be found to be entitled to when this dispute is ultimately tried out, by preventing the defendants from dealing with this outstanding letter of credit. Mr. Gardiner, in effect, treats this as no more than part of the price, a sum earmarked to pay for the goods bought under the contract, which the plaintiffs have become entitled to repudiate; and he says that the defendants ought, accordingly, to be restrained from dealing with the amount of this letter of credit. He points out that he is not seeking any order against the bank, but merely against the defendants.
We have been referred to a number of authorities, and it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this court in the present case to interfere with that established practice.
There is this to be remembered, too. A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price. That is of no mean advantage when goods manufactured in one country are being sold in another. It is, furthermore, to be observed that vendors are often reselling, goods bought from third parties. When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is - and I think it was followed by the defendants in this case - to finance the payments necessary to be made to their suppliers against the letter of credit. That system of financing these operations, as I see it, would break down completely if a dispute as between the vendor and the purchaser was to have the effect of "freezing," if I may use that expression, the sum in respect of which the letter of credit was opened.
I agree with Mr. Gardiner that this is not a case where it can be said that the court has no jurisdiction to interfere.
The court's jurisdiction to grant injunctions is wide, but, in my judgment, this is not a case in which the court ought, in the exercise of its discretion, to grant an injunction. Accordingly, I think this application should be refused.
SELLERS L.J.
I agree, but I would repeat what my Lord has said on jurisdiction. I would not like it to be taken that I accept, or that the court accepts, the submission if it was made, as I think it was, that the court has no jurisdiction. There may well be cases where the court would exercise jurisdiction as in a case where there is a fraudulent transaction.
PEARCE L.J.
I agree.
HAMZEH MALAS & SONS v. BRITISH IMEX INDUSTRIES LTD.
1957 Dec. 10.
[1958] 2 Q.B. 127
JENKINS L.J.
It appears that when the first consignment of steel rods arrived they were, according to the plaintiffs, by no means up to contract quality and many criticisms were made on that score. That is a matter in issue between the parties. In the meantime the plaintiffs wish to secure themselves in respect of any damages they may be found to be entitled to when this dispute is ultimately tried out, by preventing the defendants from dealing with this outstanding letter of credit. Mr. Gardiner, in effect, treats this as no more than part of the price, a sum earmarked to pay for the goods bought under the contract, which the plaintiffs have become entitled to repudiate; and he says that the defendants ought, accordingly, to be restrained from dealing with the amount of this letter of credit. He points out that he is not seeking any order against the bank, but merely against the defendants.
We have been referred to a number of authorities, and it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this court in the present case to interfere with that established practice.
There is this to be remembered, too. A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price. That is of no mean advantage when goods manufactured in one country are being sold in another. It is, furthermore, to be observed that vendors are often reselling, goods bought from third parties. When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is - and I think it was followed by the defendants in this case - to finance the payments necessary to be made to their suppliers against the letter of credit. That system of financing these operations, as I see it, would break down completely if a dispute as between the vendor and the purchaser was to have the effect of "freezing," if I may use that expression, the sum in respect of which the letter of credit was opened.
I agree with Mr. Gardiner that this is not a case where it can be said that the court has no jurisdiction to interfere.
The court's jurisdiction to grant injunctions is wide, but, in my judgment, this is not a case in which the court ought, in the exercise of its discretion, to grant an injunction. Accordingly, I think this application should be refused.
SELLERS L.J.
I agree, but I would repeat what my Lord has said on jurisdiction. I would not like it to be taken that I accept, or that the court accepts, the submission if it was made, as I think it was, that the court has no jurisdiction. There may well be cases where the court would exercise jurisdiction as in a case where there is a fraudulent transaction.
PEARCE L.J.
I agree.
6 March 2008
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