Lloyd's Maritime and Commercial Law Quarterly
SHIPS ARE DIFFERENT—OR ARE THEY?
Lord Mustill *
The real title of this address is “Limitation of Liability in Maritime Trade”. It did not, however, seem very enticing for a short address on what is essentially a social occasion. So I sought for a slogan, and arrived at “Ships are different”. This turn of phrase is not original. It comes from the days, not long past, when our courts were dominated by the doyens of the Bar. The arguments of these great men gained authority from the status of those who gave voice to them. From time to time they would utter magisterial rebukes and resounding apothegms. Several of these became current at the time but, for want of the chronicler of life in the Commercial Court 40 years ago, they are most of them totally lost, and they will never be echoed in the modern and totally transformed world of commercial litigation. I do, however, recall that, when a judge from outside this closed world ventured to point out that the argument advanced in a maritime case seemed to diverge from ordinary legal principles, he was firmly put on the right lines by the rejoinder—“My Lord, ships are different”. Hence my text. It seems that in the field of limitation ships are indeed different, and the time is perhaps ripe to consider why this is so and whether the difference should be perpetuated.
Let us take as illustrations three non-maritime situations in which a single fault may lead to very large liabilities. First of all, there is the manmade disaster: the nuclear or chemical explosion, the disastrous fire, causing heavy casualties. In those countries where large damages are awarded for personal injuries, the liabilities of the defendant will be enormous, and no statute intervenes to limit them.
The position is the same in a smaller and less dramatic way in relation to the more mundane and frequent instances of liability for careless mistakes. Momentary inattention by a motorist may result, if the victim is of an age and attainment to have had a long and lucrative earning life before him, in a liability ultimately falling on his insurers well into six figures of sterling: an enormous multiple of the premium paid by the motorist to his insurers, of the value of the vehicle, and of any other financial component of the driver’s situation. So also with the surgeon who by a single brief slip of an instrument may incur a massive liability. These are mistakes of individuals. It is also a striking fact that, through the medium of vicarious liability, an employer, who has done nothing wrong himself, will have to bear the finan-
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