LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 69
Don Lye
6.3 S
Subject matter of bailment can be decisive in considering whether there has been a
Can indicate whether sub-bailment was reasonably inferable or not.
Consider the Mona Lisa coming to New Zealand.
Contemplated to be flown from Paris to Wellington, displayed for 10 days and then
returned to Paris.
Suppose Auckland museum asked if the painting could be borrowed for 3 days.
Subject matter would show that it would be a deviation of bailment.
Factors pointing to this – insurance issues, prior approval of facilities, control
of immediate environment.
Garnham, Harris & Elton Ltd v Alfred Ellis Ltd
[1967] 2 Lloyd’s
Rep 22 (QB).
Concerned the transport of 12 tons of copper wires.
Contemplated by the plaintiff that the defendant would deliver the copper wire himself.
Defendant sub-contracted the work to a third-party who was a complete stranger.
Third party took delivery of the copper work and then disappeared with it.
The copper wires were highly valuable and prone to burglary because they were virtually
Paull J
Held that the subject matter indicated that right for the bailee to engage in sub-bailment
could not be reasonably inferred.
The sub-bailment was a deviation from the contract for bailment.
Citing Lord Greene in
Davies v Collins
[1945] HL.
“Whether or not in any given contract performance can properly be carried out by
the employment of a sub-contractor must depend on the proper inference
to be
drawn from the contract itself, the subject-matter of it, and other material
surrounding circumstances”.
“Normally, undoubtedly, I should hold that a contract of carriage may be subcontracted.”
“In the course of argument I put to Mr Smith the question: Smith the question: If this
had been a load of gold and known to be such by both parties, would there have
been a right to sub-contract? Mr Smith's answer was ‘No’, and clearly that is
because of the nature of the load.”
“This load was, to the knowledge of both parties, the ‘gold of thieves ‘, in other
words, the sort of cargo that every gang of lorry thieves, and every lorry thief, will
strive every nerve to steal, and, as Mr. Bowen put it, it has become much too
common for such loads to disappear.”
“If necessary, I am prepared to hold that in any contract for the carriage of such
there must be some express words
, preferably in the body of the contract,
giving a carrier the right to sub-contract.”
This indicates how important the subject matter was here.
“In my judgment, therefore, I hold first of all there was no right to sub-contract at all
, and
that, secondly, the manner of the sub-contracting was such that it amounted to a
deliberate interference, without justification, in a manner inconsistent with the rights of
the plaintiffs, and by reason of that deliberate interference with their rights, the plaintiffs
are entitled to succeed in conversion.”

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