Lloyd's Maritime and Commercial Law Quarterly
SUB-BAILMENT ON TERMS
Professor N. E. Palmer*
Almost a quarter of a century after Lord Denning, M.R.’s judgment in Morris v. C. W. Martin & Sons Ltd.,1 a court has directly confirmed that a principal bailor who authorizes a sub-bailment of his goods by his immediate bailee will be bound by the terms of the sub-bailment, irrespective of contract between the sub-bailee and himself, if he has expressly or impliedly consented to those terms. Lord Denning’s own statement to that effect (following his earlier observations in Scruttons Ltd. v. Midland Silicones Ltd.)2 had been made obiter, because in Morris itself the sub-bailee’s terms would have been inappropriate on their wording to protect him, irrespective of whether they were doctrinally capable of being invoked against the principal bailor. But in Singer Co. (U.K.) Ltd. v. Tees & Hartlepool Port Authority
3 the validity of Lord Denning’s view arose squarely for decision. Steyn, J., held that the terms of the head-bailee/sub-bailee contract were indeed available in defence to an action by the principal bailor. The principal bailor had impliedly consented to their imposition, and was accordingly bound by them.
The facts were well-designed to present the problem. Singer contracted with a firm of freight forwarders named Bachman for the crating of certain machinery and its delivery to United Kingdom ports. Bachman caused a particular drilling machine to be delivered by road to the defendant port authority, and the authority contracted with Bachman for the loading of the machine on to a vessel bound for Brazil. The contract between the defendant authority and Bachman contained both an exclusion clause and a limitation clause. The defendants damaged the machine in the course of loading and Singer sued in tort, joining the consignees in order to avoid any difficulty concerning title to sue. The defendants relied upon the clauses. In earlier proceedings,4 the Court of Appeal had held that the defendants, as subbailees, had failed to disprove negligence, and ordered the matter back for trial on the remaining issues. These issues were: (a) the availability of the clauses in the Bachman-defendants’ contract as a defence to Singer’s action; (b) the linguistic ambit of the clauses, and (c) their validity under the Unfair Contract Terms Act 1977.
* Professor of Law, University of Essex.
1. [1966] 1 Q.B. 716, esp. at 729–730.
2. [1962] A.C. 446, 489–491.
3. [1988] 2 Lloyd’s Rep. 164. I am grateful to Mr Ben Browne, a partner in Clyde & Co. (solicitors for the plaintiffs) for supplying me with a copy of their notes of the judgment and for other helpful advice.
4. 18 February 1986, unrep.
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