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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