Charterer's Liability for Safety of Port
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00334.x |
| Date | 01 November 1955 |
| Author | O. C. Giles |
| Published date | 01 November 1955 |
Nov.
1956
NOTES
OF
CASES
615
question whether property has passed, yet to state the offence is to
have determined the point to which one is attempting to reach.
If
for no other reason, therefore, the test should not be invoked in
situations where two innocent parties are involved. To some extent
this has been achieved in relation to the Factors Act, 1889, where
the criminal law test has been expressly jettisoned.‘
Secondly, even were the test apposite, the corollary deduced by
Lord Goddard
C.J.
appears to be a non-sequitur. Even supposing
that the property passed, the fact that the cheque at the time of
its passing to the payee was not intended to be met on presentation
cannot mean that the ostensible payee has lost the proceeds of saler
The fact of the matter is that he has never had the proceeds
of
sale
but has been merely the possessor of a worthless scrap of paper.
The future realisation that the cheque is valueless relates back to
the time of the transaction. In such circumstances what has been
lost is the car,
for
the claimant would not have parted with the car
had he known the true nature of the transaction. Where, of course,
the intention that the cheque shall not be met occurs posterior to
the transaction, the position might be otherwise.
It
might be pos-
sible in this instance to assert that there was a loss of the proceeds
of sale.8
The duty of the court,
it
is submitted, is to determine what the
parties to the contract intended with regard to the scope and extent
of the clause.
It
is idle for an insurer to plead that the claimant
has been negligent in his dealing with the rogue, for the very nature
of insurance is to seek indemnification against such occurrences.
Only where the claimant has been fraudulent can liability under
the policy be avoided.
So
long as the decision in
Eisenger
prevails
insurance companies will be able to avoid indemnifying .insureds in
a large number
of
cases which are barely distinguishable from cases
of identical situations depending on the nature of the thief’s offence.
On the basis that
Eisenger
is wrongly decided, any other argument
put forward
on
behalf of the insurers can be countered by the courts
employing the maxim
:
Verba chartarum fortius accipiuntur contra
pro ferente~n.~
L.
J.
BLOM-COOPER.
CHARTERER’S
LIABILITY
FOR
SAFETY
OF
PORT
THE
Court
of
Appeal, in
Compania Naviera Maropan
SIA
v.
Bowaters Lloyd Pulp and Paper
Mills,
Ltd.
[1955]
2
Q.B. 68,
7
Pearson
v.
Rose
d
Young
[1951] 1
K.B.
275;
Du
Jardin
v.
Beadman Bros.,
Lta.
[i9521 2
Q.B.
712.
*
Parker
J.’s
arrival at the similar result is likewise faulty
on
the grounds
of
failing correctly to analyse the transaction.
9
EngEish
v.
Western
[1940]
2
K.B.
166;
cf.
in marine insurance the claurte
may be construed against either party:
AIL3
Ocean
v.
Black Sea
d
Baltic
General Insurance Company,
Ltd.
(1936)
61
L1.L.Rep.
906.
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