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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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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 62
Don Lye
171346040
Ship takes the prescribed route but makes a detour to France before London, extending the
journey by 50 miles – small increase in distance.
Ship was struck by a German torpedo while in France and goods were lost.
Held
– sea carrier was liable for loss – had deviated from the agreed shipping route.
5.12.1.2
Lilley v Doubleday
(1881) 7 QBD 510 (QB)
Bailee agreed to store goods for the bailor at a particular place.
However warehouses part of them at another place.
Goods are destroyed without negligence on part of the bailee.
Grove J
“The defendant was entrusted with the goods for a particular purpose and to keep them in
a particular place. He took them to another, and must be responsible for what took place
there.”
“The only exception I see to this general rule is where the destruction of the goods must
take place as inevitably at one place as at the other
. If a bailee elects to deal with the
property entrusted to him in a way not authorised by the bailor, he takes upon himself the
risks of so doing, except where the risk is independent of his acts and inherent in the
property itself.”
o
Such as where the bailee proves where the damage would have occurred anyway.
o
By deviating, the bailee effectively becomes an insurer of the risk for the bailor.
Lindley J
“The plaintiff gave his goods to the defendant to be warehoused at a particular place, the
defendant warehoused them elsewhere, where, without any particular negligence on his
part, they were destroyed. The consequence is that the plaintiff has a cause of action and
is entitled to damages.”
62
Page 63
Don Lye
171346040
5.12.1.3
Edwards v Newland & Co
[1950] EWCA
Contract for the storage of furniture.
Denning LJ
“The first question is whether a storage contractor is entitled to hand over the goods to
another person under a sub-contract.”
“There are many bailments in which the bailee is entitled to make a sub-bailment: the
repairer of a motor-car, for instance, can often quite reasonably send away a part of it to
another firm for repairs; a carrier of goods may need to entrust them to another carrier for
part of the journey; a hirer may himself often, quite lawfully, sub-hire the goods.”
o
“It all depends on the circumstances of the particular case.”
“The contract here is a contract for the storage of furniture. In such a case, in my opinion,
the personal skill and care of the contractor is of the essence of the contract. Much skill
and care is necessary in appointing the men who are to handle the goods, in selecting the
place where they are to be stored, in seeing that it is reasonably fire-proof and burglar-
proof, and in choosing the caretakers.”
o
“The owner of the goods is entitled in these respects to the personal care and skill
of the contractor. If the contractor employs a sub-contractor, he does it at his own
risk because, if the goods are lost whilst in the hands of the subcontractor, the
contractor cannot say that they would have been lost in any event. He, by breaking
his contract, has prevented any evidence as to what would have happened if he had
fulfilled it personally”.
Commentary
There are some arrangements where sub-bailment is obviously contemplated because the
mover has to put your goods on a boat to get them to the destination.
However, outside these circumstances, generally, handing off the goods to another person
– will involve risks that the bailor did not consent to – therefore deviation.
63
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