Lloyd's Maritime and Commercial Law Quarterly
THE BILL OF LADING: DO WE REALLY NEED IT?
Sir Anthony Lloyd*
If you look in the 5th edition of Tony Weir’s Casebook on Tort
1 you will see what was then a recent decision of mine2 described as being of breathtaking superficiality. I shall come back to that case a little later. But in the meantime all I want to say is this, that when I compare what I am about to say with the very learned contributions that have come from my predecessors in this series of lectures, Professor Berlingieri on lien holders and mortgagees,3 Lord Justice Mustill on decision-making in maritime law4 and the others, I am persuaded that Mr Weir may be right. The superficiality of what I am about to say is indeed breathtaking. It is perhaps just as well that Mr Weir is not among us. I shall, however, just add this. That when looking for the 5th edition of his Casebook in the Inner Temple library, I found the first four editions in their place without difficulty; but the fifth edition, in which my decision is mentioned in such unflattering terms, has gone missing. It was nowhere to be found. I can assure you that there is no connection whatever between these disconnected facts.
We should all be very grateful to the Institute of Maritime Law for founding this series of lectures. Quite apart from their important contribution to learning, they afford an opportunity for those of us who are directly concerned with this branch of the law, whether as practising lawyers, academics, or labourers in the vineyard to get together and pool our ideas. That was the point made so well by Michael Summerskill in the first of these lectures.5 Tonight, in addition to the three estates which he identified (the market-place, the academics and the practitioners), we have a fourth estate; not the press, who like to be so regarded, but the Secretary of State for Transport. We are indeed grateful for his presence. And, if he is still here by the end of my lecture, he will learn that I have got some homework for him.
So these lectures are fulfilling a most useful function. For a judge who is asked to give a lecture, they perform a further function. They compel him to think. You will be surprised how little judges think in the ordinary way. We simply do not have the time. All we can do is decide between one set of arguments and another, and
* Lord Justice of Appeal. This paper was given as the Sixth Annual Lecture of the Institute of Maritime Law of the University of Southampton, on 24 November 1988. The lecture was chaired by the Rt. Hon. Paul Channon, Secretary of State for Transport.
1. 5th edn. (1983), 49, where he states that Lord Roskill’s “excellent judgment in Margarine Union [infra, fn. 20] has been disapproved, with a blitheness and inconsequentiality bordering on flippancy, by Lloyd, J., whose argument as counsel Roskill, J., had refused to accept (The Irene’s Success [1982] Q.B. 481)”.
2. Schiffahrt & Kohlen G.m.b.H. v. Chelsea Maritime Ltd. (The Irene’s Success), supra, fn. 1.
3. F. Berlingieri, “Lien holders and mortgagees: who should prevail” [1988] 2 LMCLQ 157.
4. Sir M. J. Mustill, “Decision-making in maritime law” [1985] 3 LMCLQ 314.
5. M. Summerskill, “Sea links—maritime lawyers and the market-place” [1984] 2 LMCLQ 205.
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