Lloyd's Maritime and Commercial Law Quarterly
CLASSIFICATION SOCIETIES, CARGO OWNERS AND THE BASIS OF TORT LIABILITY
The Nicholas H
Regular readers of this Quarterly may be familiar with the assumed facts of Marc Rich & Co. AG v. Bishop Rock Marine Co. Ltd. A surveyor employed by NKK, a classification society, negligently certified that the Nicholas H was seaworthy following emergency repairs. The vessel set sail, but soon sank. The plaintiff’s (MR’s) cargo was lost. MR commenced but did not pursue a claim against the charterer. It settled its claim for compensation against the shipowner, whose liability was limited by contract to $U.S. 500,000. MR claimed the balance of its loss in tort from NKK. The Court of Appeal1 reversed the decision of Hirst, J.,2 in favour of MR. The House of Lords has now, unsurprisingly perhaps, affirmed the decision of the Court of Appeal by a majority of 4 to 1.3 The majority judgment of Lord Steyn on the one hand (with which Lords Keith of Kinkel, Jauncey of Tullichettle and Browne-Wilkinson agreed) and that of Lord Lloyd of Berwick, dissenting, on the other, deserve to be noted, particularly because they neatly represent two competing approaches to the law of tort.
One view of the role of tort law sees its prime justifying function as being the allocation of losses according to principles of personal responsibility for the causation of injury and damage. According to this view, tort law has a positive part to play in correcting wrongs, in providing compensation for losses and in deterring certain types of unacceptable behaviour. It also plays a part in indicating the extent to which people should take responsibility for protecting themselves from suffering injury and damage rather than look to the law to provide redress for loss once suffered.4 On this view, tort law focuses on the interaction between injurer and injured; tort liability is a function of that interaction in the sense that the injured’s right to recover is correlative to the injurer’s conduct.5 This is not to say that tort law focuses exclusively on the relative positions of injurer and injured. In deciding whether or not to impose tort liability, a court may consider the impact which a decision either way would have on third parties in similar positions to the litigants. In Donoghue v. Stevenson,6 for instance, the court was concerned not just with the two
1. [1994] 1 W.L.R. 1071.
2. [1992] 2 Lloyd’s Rep. 481; noted R. Harling [1993] LMCLQ 1.
3. [1995] 3 W.L.R. 227.
4. J. Stapleton, “Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence” (1995) 111 L.Q.R. 301.
5. E. Weinrib, The Idea of Private Law (Cambridge, Mass, 1995).
6. [1932] A.C. 562.
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