The Gudermes

English law has always had a peculiar talent for finding maritime contracts which, on its own strict contract doctrines, should simply not exist.1 In particular, the Brandt v. Liverpool 2 implied contract has been a device of the utmost commercial utility in channelling cargo claims into a contractual rather than a tortious channel. For the cargo claimant the contractual route avoids not only the procedural difficulties of suing a non-English defendant in tort but also the substantive hurdles to its establishing a duty of care in cases of pure economic loss. For the carrier, the advantage lies in being able to rely on the Hague-Visby defences and limitations on the rare occasions when a cargo claim against it can be pursued in tort. The implied contract is also attractive from an overall commercial viewpoint in that it recognizes contracts in situations where the parties themselves generally assume that one subsists between them; particularly between a carrier and any endorsee of a bill of lading, rather than merely the restricted class of endorsees who actually have such a contract by virtue of the Bills of Lading Act 1855. The decision of Hirst, J., in The Gudermes 3 follows the flexible approach to implied contracts displayed by the Court of Appeal in The Captain Gregos (No. 2)4 rather than the contractual literalism it had previously displayed in The Aramis.5

The Gudermes was a Russian state-owned vessel which loaded a full cargo of oil in Aden for another Russian state trading body, SNE. A bill of lading was issued with an English law and jurisdiction clause and provided that the contract of carriage