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BOOK REVIEWS - Palmer: Palmer on Bailment (3rd edn)

Lloyd's Maritime and Commercial Law Quarterly


PALMER ON BAILMENT (3rd Edition). NE Palmer CBE, MA, BCL, Hon Dr Jur, FSA, Barrister (GI) and others. Sweet & Maxwell, London (2010) cclxxxviii and 2180, plus 40 pp Index. Hardback £285.
In the preface of the latest edition of Palmer on Bailment, the author writes: “One of the alluring qualities of bailment is that it remains largely the child of the common law. Much of it consists of virgin clay awaiting the hands of the artificer. This quality has enabled principles to respond creatively to the demands of justice and commerce and to draw plentifully on parallel fields of obligation without being dragooned or overborne by them. The law of bailment has not yet been incarcerated beneath standard doctrine or astroturfed by Europe.” The most noted artificer of this virgin clay has, of course, been Professor Palmer himself. Previous editions of this work have defined the topography of bailment, to such an extent that one could justly describe the English law of bailment as “Palmer’s law of bailment”. This third edition maintains the high standards of its predecessors and is set fair to prove just as indispensible in guiding the future development of this key feature of that Cinderella of the common law—the law of personal property.
The third edition has been substantially expanded and re-organised. There are new chapters on bailment and taxation (ch 34), on bailment and insolvency and possessory securities (ch 41) and on practice and procedure (ch 43). There is now a separate chapter on bailment and shipping contracts (ch 20), which is written by Michael Howard QC and John Kimbell. The publishers have decided to publish this new edition as a text primarily based on English law, which has led Professor Palmer to jettison substantial passages from Australian legislation which formed a significant proportion of the second edition. However, detailed attention is given to decisions on bailment from all common law jurisdictions.
The law of bailment has developed apace since the second edition of this work in 1991. Since then we have had the seminal decisions of the Privy Council in The Pioneer Container [1994] 2 AC 324 and The Mahkutai [1996] AC 650, as well as those of the Court of Appeal in the East West case [2003] EWCA Civ 83 and in The Rigoletto [2000] 2 Lloyd’s Rep 532. Just in time for the third edition in 2009 is the Court of Appeal decision in Yearworth v. North Bristol NHS Trust [2009] EWCA Civ 37, confirming that a separate action in bailment, distinct from those in contract or in tort, lay in respect of a health trust’s alleged failure to look after human sperm samples. The decision provides a decisive rebuttal of the argument posited by some noted academics that there was no such thing as a cause of action in bailment.
The modern law of bailment can be traced to Lord Goff of Chieveley’s analysis in The Pioneer Container that a person becomes a bailee by voluntarily entering into possession of another’s goods regardless of whether that other had consented to the possessor’s being in possession. His Lordship then derived two further conclusions from this analysis, which had been propounded in the 2nd edition of Palmer. First, the sub-bailee might owe the status of a bailee to the head bailor irrespective of any contractual relation between the parties. Second, if the sub-bailee was in possession with the head bailor’s consent, he might invoke the terms of his sub-bailment in any action brought against him by the head bailor.


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