Due Diligence in UK Law

Those responsible for the manufacture, stuffing and shipping of containers are plainly not carrying out any part of the carrier's function for which he should be held responsible. I can find nothing in the Hague Rules or at Common law to make a carrier responsible for the unseaworthiness of its vessel resulting from a shipper's misconduct of which it, the carrier, has not been put on notice.

It was content to rely on its reporting accountants to identify from the documents supplied to them—and to report on—the matters about which it needed to be informed. That is the effect of the terms in which disclosure was made under the Disclosure Letter; and, for whatever reason, those were the terms upon which the Purchaser was content to accept disclosure.

But when the defendant seeks to plead justification at a late stage, his conduct will be closely enquired into. The Court will expect him to have shown due diligence in making his enquiries and investigations. The Court may well refuse him application if he has been guilty of delay or not made proper enquiries earlier. It was, I think, on some such ground that Mr Justice Devlin refused the application in Roth's case. That case turned on its particular circumstances.

An obligation to exercise due deligence is to my mind indistinguishable from an obligation to exercise reasonable care - a concept not unfamilar in English Law, and one to be sharply distinguished from the obligation, to which certain relationships give rise, to see that care is taken.

The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured.

The duty of 'due diligence' is an 'inescapable personal obligation' (Scrutton on Charterparties (20 th ed.) , p. 429); it is non-delegable. The carrier will therefore be responsible for negligence of those to whom it delegates due diligence. The question is whether unseaworthiness is due to any lack of diligence in those who have been implicated by the carrier in the work of keeping or making the vessel seaworthy.

On an appeal (which is a re-hearing) we have said that the fresh evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, see Ladd v. Marshall (1954) 1 Weekly Law Reports at page 1491 and Skone v. Skone (1971) 1 Weekly Law Reports at page 815. But in order to avoid the effect of an estoppel (when there is no re-hearing) the fresh evidence must, I think, be decisive.