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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 61
Don Lye
171346040
o
If ship deviated from the route, goods would be exposed to a risk that the bailor did
not consent to and so the deviation from the conditions of the contract of bailment
were denoted from ship deviating from the agreed route.
A deviation from agreed route might cause delay which is a relevant factor if the goods
are perishable. In that event, the sea carrier would be strictly liable for any loss occurring
from the deviation.
Nowadays, the term is applied more generally to situations where the bailee has failed to
comply with the basic conditions on which goods have been given to them.
Examples of variations.
1.
Goods kept beyond the date specified for re-delivery.
2.
Goods kept in a different place from that which was greed.
E.g. give goods to a large firm of removal and warehousing – bailor has
the choice to select which facility. Would be a deviation to send them to a
different place.
3.
Using goods for an unauthorised purpose.
E.g. valet parking – car taken by the valet on a joyride.
Working example of bailment generally and the implications of deviation.
o
Valet driver takes car out on a joyride. While the car is in a designated parking spot,
there is a collision solely due to the negligence of a third party driver.
o
Owner of car sues the hotel (employer of person who took the car for a joy ride).
o
Counsel for the hotel concedes that there was a bailment – possession passed to
the employee and damage was caused to the car during the bailment. Law of
bailment requires the bailee to negative fault (ignoring the ability to reverse the
onus).
Argues that fault was negative because the vehicle was responsibly parked
and stationary when it was struck by another vehicle.
o
Counsel for the owner would point out that the employee’s course of action was
unnecessary.
Counsel for the hotel is assuming that if bailee is able to establish absence of
fault, there is no liability. However, the reverse onus and burden of proof
lying on bailee is irrelevant.
If it is admitted that there was bailment as well as loss/damage and admitted
that there is deviation, then the bailee is strictly liable for the consequence
harmed.
It is not open to bailee to try to advert fault by adducing evidence of their
care during the deviation.
If there is a deviation, bailment becomes strict liability.
o
Prove: (1) existence of bailment, (2) loss or damage, (3) fact that the bailee
deviated on the fundamental terms of the bailment.
Only available defence is if the bailee can deny causation – even if there was no deviation,
damage would have occurred.
o
Rare for a fact pattern to arise.
o
E.g. warehouse nominated by bailor for storage – goods are brought to a different
warehouse. Huge tidal wave engulfs both warehouses – bailee could argue that
even if there had been no deviation, the loss would have still occurred in any event.
5.12.1.1
James Morrison & Co v Shaw
[1916] 2 KB 783
Maritime shipping during wartime.
Goods being shipped from Napier to London – bill of lading quoted direct service between Napier
and London.
61
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