Albacora S.R.L. v. Westcott & Laurence Line Limited 1966 S.C. (H.L.) 19
Citation:Albacora S.R.L. v. Westcott & Laurence Line Limited 1966 S.C. (H.L.) 19
Rule of thumb:Can a litigant add new facts on appeal? No, in appeals, no new facts can be presented to the Court. However, if the other side does not object to this, then they can.
Rule of thumb:Does there have to be refrigeration in the transit of goods? No, not as per the common law, especially not if this is affirmed in the contract. It can only be through contract or statute/Regulation that refrigerated transit is required.
Background facts:
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Judgment:
The Court held that the carriers were not liable. All the basic storage standards with the containers on board were met and it was clearly stated that the containers were not refrigerated, so the carriers were not liable for this. This case also confirms that the reasonable standard of skill and care required to be provided by the ship and the crew when they are acting as carriers is not wholly objective, but also subjective and depends upon the standard of their ship – namely how nifty and durable it is as well as what storage facilities that it has on board.
A litigant is technically not allowed to fundamentally change the facts in their pleadings during a trial or during an appeal, however, if the other party does not object to this, then the party who does this is entitled to rely on the new facts. The difficulty comes because as long as a fact has been fundamentally pleaded, then additional details can be built on top of this so there is a grey area in the middle there.
Ratio-decidendi:
‘...the appellants argued that the case now made by the respondents contradicts their pleadings and that they cannot be allowed to succeed on a ground not covered by their pleadings. I think that at some stage both parties have completely departed from their pleadings...The notes of evidence were not reproduced because in their reclaiming motion the respondents were content to rely on the Lord Ordinary's findings of fact, and the appellants acquiesced in this. So we do not know at what stage or in what manner evidence to support the new contentions of the parties was introduced. But there is no indication that either party objected timeously to its introduction, and I find nothing to suggest that the appellant suffered prejudice by reason of the fact that the case was allowed to take the course it did. In my judgment it is much too late to raise an objection of this kind’, Lord Reid.
‘Article IV, rule 2(m), provides that the carrier shall not be responsible for damage arising from ‘inherent defect, quality, or vice of the goods’. A number of authorities were cited and perhaps the most concise statement is that of Gorell Barnes J in The ‘Barcore’ [1896] P 294: ‘This cargo was not damaged by reason of the shipowner committing a breach of contract, or omitting to do something which he ought to have done, but it was deteriorated in condition by its own want of power to bear the ordinary transit in a ship.’ By ‘the ordinary transit’ I would understand the kind of transit which the contract requires the carrier to afford. I agree with the Lord President when he says: ‘rule 2(m) is in my opinion intended to give effect to the well-settled rule in our law that if an article is unfitted owing to some inherent defect or vice for the voyage which is provided for in the contract, then the carrier may escape liability when damage results from the activation of that inherent vice during the voyage.’ It follows that whether there is inherent defect or vice must depend on the kind of transit required by the contract. If this contract had required refrigeration there would have been no inherent vice. But as it did not, there was inherent vice because the goods could not stand the treatment which the contract authorised or required’, Lord Reid
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.