Lloyd's Maritime and Commercial Law Quarterly
QUASI-BAILMENT
Metaalhandel J.A. Magnus B.V. v. Ardfields Transport Ltd.
Transcontainer Express Ltd. v. Custodian Security Ltd.
An owner of goods who wishes to have them stored or carried has several contractual options. He may engage a forwarding agent, whose task will be to take reasonable care to arrange the necessary service but who will not normally take possession personally nor owe the full obligations of a bailee. Alternatively, the owner may engage his own bailee, who will be prohibited from assigning possession or from delegating the task.1 Between these extremes there lies the contractor who reserves to himself the choice as to whether to delegate or to perform in person. The duties of such a contractor are greater than those of a normal forwarding agent, because he undertakes to procure that the service will be completed; but they are lighter than those of the normal bailee, because the contractor is entitled to divest himself of both performance and possession. It will not constitute a deviation for the contractor to sub-contract.
In cases falling within this middle category, the delegation may be partial or complete. If the contractor vacates possession for only part of the total period, he is likely to be treated as a bailee for the entire period and to remain responsible for the defaults of his sub-contractor during the sub-bailment.2 If the contractor delegates the whole task, and never obtains possession throughout, the position is less certain. His lack of possession would appear to preclude him from becoming a bailee and to raise questions both about his duties to the owner and his rights against
1. Lilley v. Doubleday (1881) 7 Q.B.D. 510; Edwards v. Newlands & Co. [1950] 2 K.B. 534.
2. Certainly this is the case where the contractor assumes possession initially and merely delegates a later stage to his sub-contractor. It may be otherwise, however, where the primary contractor performs only some later stage in the overall service personally: see, e.g., E.M.I. (New Zealand) Pty. Ltd. v. William Holyman & Sons Pty. Ltd. [1976] 2 N.Z.L.R. 567 and Palmer, “Ambulatory Bailments” [1983] C.L.P. 91. In the final analysis, however, the duration of the primary contractor’s accountability depends on the inferrable intentions of the parties.
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