The Case Of The Unmerchantable Catapult
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00591.x |
| Date | 01 March 1960 |
| Published date | 01 March 1960 |
200
TEE
MODERN
LAW
REVIEW
VOL.
23
With reference to the doctrine
of
(‘
stages
’)
the learned Lord of
Appeal in Ordinary said that
it
“had its anomalies and some
important matters were never elucidated by authority. When the
warranty was absolute
it
seems at any rate intelligible to restrict
it
to certain points
of
time.
It
would be surprising if a duty to
exercise due diligence ceased as soon as loading began only to
reappear later shortly before the beginning of the voyage.”
The Judicial Committee of the Pkivy Council have thus dis-
approved of the view
of
Maclachlan that
“
before
)’
means
‘(
at
the
commencement
of
loading,” and that of Carver that the obligation
is not
a
continuing one. But
it
is submitted that
if
the legislature
had intended the obligation to have been
a
continuing one,
it
would
have said
so
in words such as
“
the carrier shall exercise due diligence
to make the ship seaworthy at least at the commencement of load-
ing and until she sails on her voyage.”
It
is to be observed that the
Maxine
lo
caw did not deal with the
question
of
the
effect
of
the Carriage
of
Goods
by Sea Act,
1924,
on the doctrine of stages
after
the vessel has sailed, though
it
seems
implicit in the speech
of
Lord
Somervell that this doctrine has
ceased to exist in the case
of
bills of lading to which the Act app1ies.l‘
Further, the Judicial Committee has been careful not
to
defme the
period from which the obligation commences. Reliance may still
be placed on a dictum by Wright
J.
(as he then was) in
W.
Angliss
si.
Co.
(Australia) Proprietary, Ltd.
v.
Peninsular
4
Oriental Steam
Navigation
Co.12
concerning an even earlier time at which
it
might
start. In that case he observed
13:
‘‘
It
was argued on behalf
of
the (shipowners) that the obliga-
tion only attached in respect
of
matters at the port of loading,
the words being before and at the commencement of the
voyage and the obligation being only in favour of the parti-
cular shipper, and dating at earliest from the time
of
the
material contract of carriage between that shipper and the
carrier. In a sense
I
think that this is true, but,
if
theressel
were in fact unfit owing to some earlier breach of due dihgence
in that regard by the carrier,
his
agents,
or
servants,
I
think
that the carrier would be liable
on
the ground of actual
or
imputed knowledge of the defects
or
failure to use due diligence
continuing to the date relevant
to
the particular contract.”
E.
R.
HARDY-IVAMY.
THE
CASE
OF
THE
UNMERCHANTABLE
CATAPULT
A
LITTLE
boy of six bought a plastic toy catapult from
a
newsagent
for
sixpence. Three days later the catapult broke when being used,
10
Supra.
11
Carriage
of
Goods
by
Sea
Act,
1924,
8.
1.
12
[1927] 2
K.B.
456.
1s
At
p.
462.
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