Citation(2006) 18 SAcLJ 531
Date01 December 2006
Published date01 December 2006

1 Until fairly recently, in common law countries at least, much commercial law was a recondite topic, most of the law and lore concerning which was known to only a fairly small number of specialised practitioners (though a few of them, notably Scrutton LJ, achieved considerable prominence). This was true of shipping law in general, and also of company law; and doubtless of other areas also. Shipping law had its own special series of reports, Lloyd’s Law Reports, slim numbered volumes dating back to 1919, but these were not easy to use and some of the earlier ones were in effect no more than reports from Lloyd’s List of day-by-day proceedings in court, renewed from day to day. The prestigious books, Scrutton1 and Carver,2 dating from the 1880s and the early days of steam and the electric telegraph, have continued to be re-edited, the former having the cachet of continuing to be edited by highly distinguished members of Scrutton’s old chambers. But re-edited books can lose vitality however distinguished their editors, and in any case they are difficult to use, which was true of both of these works — especially Scrutton, in which the relevant discussion might only be in a footnote which was difficult to find, if pregnant with meaning when eventually located.3 By way of parallel, company law likewise depended a lot on accumulations of case law for some time available only in certain specialised chambers; and this may have been true in other areas too.

2 The influx in England of new practitioners after the Second World War was accompanied eventually (though not immediately) by a great broadening out of commercial law litigation (and arbitration) in London.4 Unusually quick to reflect this in the shipping context, in 1951, the Lloyd’s Law Reports moved to the format they have today, with two volumes a year, much more like the official law reports. (Butterworth’s Company Law Cases and British Company Cases came, for their area of

law, considerably later, in 1983.) In the 1960s there began to be suggestions for new books and even university courses in maritime law, or specific parts of it. I remember hearing stories of scorn poured on such courses from specialised chambers, one of which set out over tea to devise an examination, starting with the question “What is a weather working day?”— which was assumed to be of course unanswerable by any academic or student. But the market developed undeterred. Courses were introduced, and new books began to appear: a pathfinding work was Wilford, Coghlin & Healy’s Time Charters (1978), now in its fifth edition,5 eventually joined by a considerably more substantial work from the same publishers, Cooke, Young and Taylor’s Voyage Charters (1993, now in its third edition6). There have been student’s textbooks, of which a conspicuous early example was Wilson’s Carriage of Goods by Sea (1988, now in its fifth edition7). The Institute of Maritime Law at the University of Southampton dates from 1982; in England there is now some form of maritime law course at many universities, including some (such as Nottingham) located (by UK standards) some way from the sea.

3 This trend has taken root, and courses and books, and a measure of maritime litigation, came in in other common law countries also, for example, Australia and Canada. Likewise commercial law and commercial litigation in general, including shipping and insurance law, have become conspicuous in the common law territory of Singapore, as even a casual look over the cases decided over the last ten years shows, and as Singapore’s pivotal geographical position leads one to expect. So in fact two years before Wilson’s Carriage of Goods by Sea, in 1986, Prof Tan Lee Meng (now Justice Tan Lee Meng) published his The Law in Singapore on Carriage of Goods by Sea, now in its second edition.8 Practitioners of these subjects and the specialised judges have become more prominent; and there are other local books in the shipping area such as Insurance Law in Singapore, again by Prof Tan Lee Meng (1988), now in its second edition,9 Mr Toh Kian Sing’s Admiralty Law and Practice,10 and several works by Assoc Prof Poh Chu Chai.11 The Singapore journals have published articles. And of course the Singapore International Arbitration Centre

adds to the amount of commercial dispute resolution taking place on the island.

4 It is therefore not at all inappropriate that this special issue of the Singapore Academy of Law Journal should be devoted to shipping law, and should contain a mixture of contributions coming from Singapore itself, but also from the US and the UK, all part of the extensive network of common law commercial dispute settlement. As in London, the emphasis in shipping litigation can be seen recently to have moved perceptibly away from pure carriage disputes (charterparties and bills of lading) towards insurance, on which several useful cases have been decided.

5 The first article in this issue, by Prof Robert Force of the Tulane Law School, authoritatively and exhaustively deals with the global, and serious, problem of dangerous goods (recently raised in Singapore in a tort case concerning nitric acid, The Sunrise Crane12). Even in the context of straight carriage disputes such goods may raise serious problems of vessel and crew safety, as in The Eurasian Dream,13 where the crew were not trained in carriage of motor cars and the special hazards raised by this, with catastrophic results. An interesting point in this context is always the relevance of International Maritime Organization instruments, such as the ISM Code,14 and other provisions, which seek for the benefit of seafarers to improve safety conditions. They can certainly be taken into account in ascertaining whether goods are dangerous or the ship seaworthy, but will be more effective when actually supported by legislation in an adherent state. It is slightly surprising that, as Prof Force explains, an American court so readily followed the House of Lords case of The Giannis NK,15 holding that the shipper’s duty not to ship such goods is strict, with the result that if neither shipper nor carrier knows of the dangerous quality of the cargo, it is the shipper who takes the risk. The Hague Rules are geared to negligence: there are few other strict duties (one is the duty to issue a bill of lading). A charterer (who may also be a shipper) gives quite limited undertakings about the safety of ports, as appears below.

6 Prof Rhidian Thomas of the University of Wales at Swansea, discussing this notion of the unsafe port, deals among other matters with the problems of the rather strange rule in The Evia (No 2)16. One aspect of it is not difficult to understand — the charterer does not guarantee that the port will remain safe from arrival to departure, only that it is prospectively safe at the time of nomination. But the decision on this point was quite unexpected at the time, and as suggested above differs from the rule on safety of cargo. No doubt reasons can be thought up for the difference. But it is also true that the duty is strict, and the idea of a strict duty that a port is prospectively safe is not easy to operate: prospectively safe to whom and on the basis of what information? Further, if the port proves unsafe on arrival (as in the case in question), it is established that a time charterer (which the case itself concerned) must make another nomination...

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