Lloyd's Maritime and Commercial Law Quarterly
UNCOLLECTED GOODS: THE PENALTIES OF DELAY
N. E. Palmer*
Introduction
The purpose of this article is to examine a series of recent cases in which an owner’s delay in collecting goods from a bailee has led to a dispute about the bailee’s responsibility for their safety.1 The facts of these cases may seem mundane, but they raise some fundamental questions about the consensual nature of obligations in bailment relationships, and disclose an interesting variety of solutions to the central problem.
The reasons why a bailor may delay in retrieving his goods can be as varied as the merits of the parties’ respective positions. Sometimes the delay will be prompted by some continuing dispute between bailor and bailee, the survival of which persuades the bailor to leave the goods where they are until the disagreement is resolved in his favour.2 Such a dispute may relate to the quality of work which the bailee has performed on the goods or to the legitimacy of the bailee’s charges. In the case of goods which were originally the subject of a purported sale from bailee to bailor, the dispute may even raise questions as to whether the property in the goods has passed to, or continues to reside in, the ostensible bailor at all. On other occasions, the bailor may have no choice but to allow the goods to remain with the bailee because other plans for the accommodation of the property have, through no fault of the bailor’s, became unworkable; or he may have mistakenly assumed that the bailee was undertaking indefinite responsibility for their safekeeping.
Again, the bailor may have no more compelling reason for the delay than his liking for the present arrangement and his desire for it to continue—even, if necessary, against the wishes of the bailee. One of the problems confronting the courts in these situations consists in determining whether (and, if so, how far) the various causes of the delay can be legitimately accommodated in the final distribution of responsibility between bailor and bailee.3 To what extent should the culpability of the bailor’s
* Professor of Law, University of Essex.
1 As to the separate question of the bailee’s obligation to permit the owner to enter his land in order to retrieve the goods, see Palmer (1980) 9 Anglo-Am. L.R. 279.
2 An example is Pedrick v. Morning Star Motors Ltd. (1979) Unrep., 14 February (C.A.), discussed infra.
3 A comparable problem can arise when seeking to quantify the responsibilities of the originally involuntary possessor: see, e.g. (1978) 128 N.L.J. 763 and cf. AVX Ltd. v. EGM Solders Ltd. (1982), The Times, 17 July, where the defendants were rendered “unconscious bailees” by the error of a third party carrier who delivered to them goods belonging to the plaintiffs as well as goods which were the subject of a rescinded sale from the defendants to the plaintiffs. The defendants’ employees, assuming that all the goods thus delivered were the subject of the rejection, effectively destroyed them. The defendants were held liable to the plaintiffs on the ground that they had owed a duty to take reasonable care to verify that the goods were the defendants’ property before embarking on the destruction. For comment, see Weir, Casebook on Tort (5th edn.) p. 423. A further aspect of the problem might arise when the possessor, although voluntarily in possession, was unaware of the identity and interest of the owner and arguably did not consent to assume the obligations of a bailee towards that particular proprietor: see Awad v. Pillai [1982] R.T.R. 266 (C.A.), discussed by Weir, op. cit., p. 423 and by Palmer and Murdoch (1983) 46 M.L.R. 73; Balsamo v. Medici [1984] 1 W.L.R. 951, 959–960, per Walton, J.; and Maynegrain Pty. Ltd. v. Compafina Bank [1984] 1 N.S.W.L.R. 258 (P.C.), discussed by Palmer [1986] 2 LMCLQ 218.
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