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WHICH WAY TO ROME FOR CARGO CLAIMS IN BAILMENT WHEN GOODS ARE CARRIED BY SEA?

Lloyd's Maritime and Commercial Law Quarterly

WHICH WAY TO ROME FOR CARGO CLAIMS IN BAILMENT WHEN GOODS ARE CARRIED BY SEA?

Sir Richard Aikens *

In 2009 in Yearworth v. North Bristol NHS Trust the English Court of Appeal confirmed that a cause of action in bailment was distinct from one in tort. Causes of action in bailment remain important in the context of claims for loss of or damage to cargo carried by sea. Given the new conflict of laws rules for contractual and non-contractual obligations created by the EC Regulations known as “Rome I” and “Rome II”, which of those Regulations will apply to determine the applicable law in a cargo claim made in bailment? How do the Regulations work, particularly where it is said that there has been a bailment or a sub-bailment “on terms”?

Bailment in English law today

It would seem that the concept of bailment as a cause of action which is distinct from one in contract or tort is, pace some commentators,1 alive and well in English law, unlike the men’s sperm which were the subject of the recent Court of Appeal decision of Yearworth v. North Bristol NHS Trust.2 In that case the cause of action in bailment came to the aid of a number of claimants who wished to bring actions for damages against an NHS Hospital Trust for mental distress or psychiatric injury suffered as a result of the failure of a hospital to look after samples of their sperm “with all possible care”. The samples were supposed to have been kept at very low temperature in the hospital’s fertility storage unit for use by the men in case the treatment for cancer that they were undergoing affected
* Lord Justice of Appeal. This article is based on the Donald O’May Lecture, given on 3 November 2010 under the auspices of the Institute of Maritime Law, University of Southampton. The lecture was entitled “Lord Bingham, Bailment and Bills of Lading”. Lord Bingham of Cornhill KG, former Commercial Court judge, Master of the Rolls, Lord Chief Justice and Senior Law Lord, had died on 11 September 2010. The lecture was the author’s small tribute to Lord Bingham’s immense contribution, at all stages of his judicial career, to commercial law in general and shipping law in particular.
Ms Chloe Strong, judicial assistant in the Court of Appeal, greatly assisted with collecting material for this article. All errors and omissions are, of course, my own.
The following abbreviations are used:
Brussels Convention: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1968;
Brussels I Regulation: Council Regulation (RC) 44/2001 of December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters;
Rome I: Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations;
Rome II: Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations.
2. [2009] EWCA Civ 37; [2010] QB 1 (hereafter “Yearworth”).
WHICH WAY TO ROME?

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