Ridleys Law of the Carriage of Goods by Land, Sea and Air, 8e

Jasper Ridley
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Leather's Best, supra and recovery in the event of loss is to be determined by the unverified words "said to contain 38 packages", on the bill of lading, then severe practical difficulties will arise. The synthetic resin liquid was the product known as "Teflon", and is not explosive, inflammable, nor otherwise dangerous. Carver, Thomas Gi lbert: Especially regarding anti-suit injunctions issued by English courts, this has also been an area where the European notion of mutual trust has been tested and where, further developments are expected, in the light of Brexit. This analysis of Greek case law proceeds in following structure: Tall Grass Brian Harris.

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Energy Law Zillman, Donald N. International Dispute Settlement Merrills, J. In the instant case, there is no real dispute as to the honesty of shipper's declaration that it had 38 packages within the container. In Leather's Best, supra, it appears that the container was loaded in the presence of, and a receipt given by, a truckman, who, the Court of Appeals considered see footnote 2, p.

Stevedoring has always contemplated tally sheets and dock receipts maintained by or under supervision of the Master. If a shipper may now fill an ocean shipping container at some inland point, under circumstances where the carrier cannot tell if it contain 99 or cartons of leather cf. Leather's Best, supra and recovery in the event of loss is to be determined by the unverified words "said to contain 38 packages", on the bill of lading, then severe practical difficulties will arise. Such is not, however, the circumstance of this case.

Plaintiff argues that defendant is not entitled to assert the limitation of liability contained in Title 46, U. Hong Kong Producer, F.

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Defendant urges that du Pont, a knowledgeable shipper, acting through a professional freight forwarder, was bound by the pertinent trade usages, including the custom of stowing containers on deck pursuant to ad hoc decisions made by the stevedore for the reasons set forth supra, p. Defendant asserts that there is, or was in , a custom in the shipping industry of carrying such containers on deck, and that a bill of lading, not claused for deck shipment, will be presumed to have been issued subject to the custom, and such stowage will not, therefore, be considered an unreasonable deviation.

I find that neither of the plaintiffs was actually aware of any custom or practice at the port of New York in under which carriers transported containers on deck pursuant to a clean bill of lading. Plaintiffs had been utilizing container service for about six months prior to the incident, and Traffic Manager DeLuca was able to see containers loaded on deck in vessels, including those of Moore-McCormack Lines, Inc. Some bills of lading were claused as to on deck stowage, and others issued clean, but still carried on deck.

The witness Felice testified that there was a standard practice of issuing clean bills of lading with respect to containers stowed on deck at the times complained of. He had direct experience with Grace Lines, and was familiar generally with trade customs with respect to the issuance of bills of lading. Such custom relied upon by Mr. Felice was local to New York harbor and of course limited to shipments originating in the port of New York, and bills of lading issued thereon.

Trade usages sanctioned by the passage of time, are presumed to be within the knowledge of parties regularly engaged in the business, in this case the shipment and carriage, respectively, of goods by sea. All contracts are presumed made with reference to trade usages and practice. Plaintiffs assert correctly, that a habit of sloppy practice, not attended by consequent damage followed by litigation, will not serve to show custom or usage contrary to well settled law. Farmers' and Mechanics' Bank v. While du Pont's Traffic Manager, Mr. DeLuca, was not directly familiar with the custom and practice in selecting which containers would be carried below deck, there is no reason to believe that Schenkers International Forwarders, Inc.

No evidence on this subject was adduced by any party. While du Pont did not have actual knowledge, it did have constructive knowledge, and also imputed knowledge through its agent, or freight forwarder, Schenkers.

Defendant urges that this Court exonerate it because of such custom, as made applicable and binding by the Uniform Commercial Code in effect in New York with respect to the usages of the North Atlantic container trade, there being no explicit preemption in this area of the law by COGSA. But the custom is not sufficiently ancient to warrant reliance on constructive or imputed notice.

It is rejected here, on the same reasoning. I also decline to find that there was any standard operating practice on the part of plaintiffs, or either of them, to advise defendant Moore-McCormack Lines, Inc. He stated that he advised Drazen that du Pont "wanted to book for under deck stowage. DeLuca and that du Pont's shipments at the time in question were usually arranged through a professional freight forwarder, Schenkers International Forwarders, Inc.

This latter contention is corroborated by Exhibit 1, which clearly shows that the bill of lading was issued through Schenkers as forwarding agent. It was further stipulated that Drazen would testify that it was defendant's policy at that time to make no commitment for under deck stowage, and that he adhered to this policy to the best of his recollection with respect to this shipment. I decline to find on the evidence before me that any special oral contract existed with respect to this particular container requiring it to be stowed under deck, or that any such oral requests were then made generally with respect to du Pont's containers.

In the absence of a showing of special factual conditions, such as perishability, not present here, the making of such an oral agreement might be an invidious discrimination in favor of du Pont, to the detriment of other shippers, which is precluded by statute. The granting of such an undue or unreasonable preference would constitute a crime, 46 U. The nature of the damage, and the failure of defendant to come forward with evidence which is entirely within the carrier's knowledge, justify our finding that the action of the sea or whatever caused loss of the container, would not have affected the container if stowed below deck.

The containers below deck, and all but a very few of the containers on deck, were carried safely on this voyage. The claimed deviation was, therefore, the proximate cause of the damage. It should be noted from the outset that the Greek courts have exercised their powers regarding public policy with great parsimony. The remedy of punitive damages is one of the most representative areas of conflicts among the European and Anglo-Saxon legal systems.

Greek courts held that awards of punitive damages are not in principle violations of international public policy, provided that they are not excessive or disproportionate. This approach is very pragmatic and quite progressive, as it does not ignore the legal reality that in an era of globalization, the interaction among different legal cultures is inevitable. The conflicts and challenges in the enforcement proceedings of punitive damages awards are also clearly reflected in the dissenting opinions of the Supreme Court. However, there is an inherent contradiction in this rationale: From a policy perspective, it is understandable that the Supreme Court wishes to maintain some control over the amount of punitive damages, given their uncertain and controversial character even in the Anglo-Saxon legal traditions.

Furthermore, the criteria on how to determine the excessiveness of punitive damages lack specificity. This leaves the lower courts without guidance on what constitutes disproportionality. However, in such controversial areas, where vague principles such as public policy come into play, judicial discretion is at the end inevitable and potentially even desirable. Parallel proceedings in arbitration and court can lead to increased costs and conflicting decisions, which complicate enforcement proceedings.

Especially regarding anti-suit injunctions issued by English courts, this has also been an area where the European notion of mutual trust has been tested and where, further developments are expected, in the light of Brexit. Anti-suit injunctions as a measure to enforce arbitration agreements can be issued by English courts, which, depending on the terms that the United Kingdom will negotiate for its exit from the European Union EU , may not be bound by EU regulations and the European Court of Justice ECJ judgments anymore, 49 as well as by other common law jurisdictions and arbitrators.

As these injunctions travel and reach the courts of civil law countries, the concept of public policy comes again into play and it will be the judge who will have the final say in this legal battle. The maritime bench of the Court of Piraeus faced the issue of anti-suit injunctions from English courts. It remains to be seen how the political and legal developments in this issue will affect the stance of the Greek courts.

Conflicts of legal cultures and systems, hidden or apparent, play a major role in international arbitration. This paper aims to contribute to a better understanding of such differences, by using Greece as a case study. As a general observation, several pro-arbitration enforcement trends can be detected in the Greek case law.

When confronted with common law concepts, the Greek courts have adopted quite progressive and flexible interpretations. However, there are still steps to be taken towards a greater degree of receptiveness to foreign arbitral awards and foreign legal institutions in general.

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Finally, this case study underlines the essence of the role of judge. Despite the continuous efforts for legal clarity and legal certainty, the judge has the final say for the interpretation of vague principles, such as public policy. While this paper throws light in some of these issues, further research is necessary, in order to increase awareness of the potential areas of conflicts and suggest strategies to address them. A Law and Economics Approach Intersentia State courts may refuse enforcement of an arbitral award that ignores the aforementioned statute of limitations, considering such a provision as part of the international public policy, see Antonios Tsavdaridis, International Maritime Arbitration Sakoulas Athina- Thessaloniki However, for thepurposes of this paper, we have selected the case law most relevant tothe application and interpretation of public policy as a ground for refusing enforcement of an arbitral award.

In order to better understand the development of the principle of Greek public policy, the selected cases include both annulment proceedings of domestic arbitration awards and enforcement proceedings of international arbitration awards, regardless of the type of dispute.