Preface
Contents
List of Contributors
Table of Cases
Table of Legislation
Table of Treaties and Conventions
1. The Empress of Ireland and Mont Blanc Collisions: Then and Now
I. The Titanic and Limitation of Liability
II. Empress of Ireland
III. The 1917 Halifax Collision and Explosion90
IV. A Twenty-First Century Maritime Law Perspective on the Disasters
2. Do Actual Carriers Require Special Treatment?
I. What is an Actual Carrier?
II. A Special Regime for Actual Carriers under Conventions
III. The English Law Position
IV. Reasoning Behind a Special Regime for Actual Carriers
V. Possible Solutions
VI. Does the Problem Require a New Approach?
VII. Two Further Issues
VIII. Conclusion
3. Multimodal Carriage of Goods by Sea: Time for an International Convention?
I. Introduction
II. Five Problems with Multimodal Carriage of Goods
III. Solutions to the Problems
IV. Conclusion
4. The Three Ages of Utmost Good Faith
I. Introduction
II. The First Age: The Age of Common Law
III. The Second Age: The Marine Insurance Act 1906
IV. The Third Age: The Insurance Act 2015
V. Conclusion
5. English Jurisdiction Clauses in Marine Cargo Insurance and Direct Actions against Cargo Liability Insurers
I. Introduction
II. Party Autonomy
III. Direct Action
IV. The Global Position
V. The European Position
VI. The English Common Law
VII. Conclusion
6. Choice of Law in Determining the Ownership of Ships
I. Introduction
II. The Law of the Underlying Transaction
III. The Law of the Flag
IV. The Law of the Ship's Actual Situs
V. Ship Arrest - Lex Fori
VI. Conclusion
7. Private International Law and the Privy Council
I. Introduction
II. The Effect of Statutes
III. Developing the Common Law
IV. The Limits of the Common Law, and Cambridge Gas
V. The Derivation of Rules from Statutes
VI. The Other Side of the Coin: Trusts and Trustees
VII. Common Laws, Private International Laws and the Privy Council
8. Bulk Goods and Title Transfer
I. Introduction
II. The Seller in Possession
III. Bulk Goods and Oversales
IV. Conclusion
9. The Duty to Take Delivery of Goods
I. Introduction
II. Is there a Free-Standing Take-up Duty to Accept Delivery?
III. The Legal Basis of a Take-up Duty
IV. A Take-up Duty: Fault-Based or Strict?
V. The Take-up Duty: Its Application to Specific Cases
VI. Effect of Breach of the Take-up Duty
VII. Conclusion
10. The Vanishing Scope of the Sale of Goods Act 1979 in the Twenty-first Century
I. Introduction
II. Some Brief Historical Comments
III. The Sale of Goods Act 1979
IV. 'Transfer the Property'
V. 'Goods'
VI. Money Consideration
VII. What is Left for the Sale of Goods Act 1979?
VIII. Does it Matter?
IX. Conclusion
11. Are there Any General Principles of Commercial Law?
I. Introduction
II. Is there Such a Thing as 'Commercial Law'
?
III. Modifying Private Law Dogmas
IV. The Leading Advocate of General Principles of Commercial Law
V. Freedom of Contract versus Sanctity of Contract
VI. The Limits of Party Autonomy
VII. Party Autonomy, Certainty and Good Faith
VIII. Facilitation, Intangible Assets and Cryptoassets
IX. A Conclusion of Sorts
12. Mercantile Usage, Construction of Contracts and the Implication of Terms, 1750β1850
I. Introduction
II. Commercial Drafting Practices and Mercantile Usage
III. Construction of Contracts
IV. Implication of Terms
V. Concluding Remarks
13. 'The Obscure, the Implied and the Illegal': English and French Approaches to the Interpretation of Written Contracts, Implication of Terms and Contracts Affected by Illegality
I. Introduction
II. Interpretation of Written Contracts
III. Implication of Terms
IV. Illegality
V. Conclusions
14. The Interpretation of Written Contracts
I. Interpretation as Initially a Type of Translation
II. Relaxation of the Translation Approach Subject to an Ambiguity Constraint
III. Relaxation of the Ambiguity Constraint
IV. 'The Intention of the Parties' as the Underlying Interpretative Principle
V. 'Intention of the Parties' and Ambiguity
VI. 'Intention of the Parties' and Rectification
VII. 'Intention of the Parties' and Implication of Terms
VIII. Conclusion
15. The Boilerplate and the Bespoke: Should Differences in the Quality of Consent Influence the Construction and Application of Commercial Contracts?
I. Introduction
II. Boilerplate β A Short History
III. Incorporation
IV. Contractual Interpretation
V. Integration: Entire Agreement Clauses
VI. Variation
VII. Agreement as Evidence
VIII. Conclusion
16. Illegality: Pleading, Proof, and Presumptions
I. Introduction
II. The Bowmakers Rule
III. What Sort of Rule is the Bowmakers Rule?
IV. The Gascoigne/Chettiar Rule
V. What Sort of Rule is the Gascoigne/Chettiar Rule?
VI. The Gascoigne Authorities
VII. The False Assimilation of the Two Rules in Tinsley v Milligan
VIII. The Gascoigne/Chettiar and Bowmakers Rules Distinguished
IX. Conclusion
17. Negotiating Damages
I. Introduction
II. Morris-Garner v One Step (Support) Ltd
III. The Purpose of Negotiating Damages
IV. The Availability of Negotiating Damages
V. Conclusion
18. The Myth of Common Law Tracing
I. Introduction
II. Leading Cases
III. The Basics of Tracing
IV. Early Common Law Tracing Approaches
V. The Modern Common Law Authority: FC Jones
VI. Reasons against Adopting the Same Tracing Rules at Common Law and in Equity
VII. Conclusion
19. Contextual and Conceptual Foundations of Private Law Claims Involving Cryptocurrencies
I. Introduction
II. A Brief Introduction to Cryptocurrencies
III. Contextual Challenges
IV. Conceptual Foundations
V. Conclusion
20. Silence and Solidarity? The Duties of Individual Directors Minded to Speak Out about their Board's Decision-making and Governance
I. Introduction
II. Some High-Level Observations
III. The Two Cases to be Studied
IV. Stobart Group Ltd v Tinkler
V. National Roads and Motorists'
Association Ltd v Geeson
VI. Returning to the Substantive Issues and Seeking Answers
VII. Conclusions