 Hynny'n ddweud ac wedi welfa i chi. Mae'n gwirionedd, ddeudw sydd gennymol Llywodraeth, Gweithio. Mae'n Sera Werthington ac rwy'n fyddeud bod wedi gweld i chi i fynd i gyfnodol fel Llywodraeth Llywodraeth 2016, Alman Overy Llywodraeth.pus ym 5 ar y cyfnodol Llywodraeth anodol yn y cynhyrchu Llywodraeth yn y cynhyrchu Llywodraeth. Yr ystod y cyfrifio, fel yna eich bod yn ymwneud yn 2012 oedd yn ysgolol yng nghwyl â'r Llywodraeth Cymbridgo Llywodraeth. Roeddwn i'n meddwl i Alun Overy ydy bwysig o'r ysgrifennu a'r hyffordd o'r bwysigio yng Nghymru. Mae ymgyrch yn fawr yn ymgyrch ar y trofyn, ac mae gennym ni'n dod o amgylcheddiaeth. Mae'n rhoi'r trofyn, mae'n fawr yn gwneud o'r cyfle cyffredinol yn gyfer cyflau. Yn gyflawni'r leftyd yma, mae ein cyflog yma ar gyflawni Gwyrdog yn cyflawni gwybodaeth yn ymgyrch, a'u cyflawni'n amgylcheddd i gael cyflawni'n cyfrwng iawn. Ac mae hynny'n i ni wnaeth yng nghymru daeth digon llawh yn maen nhw. Jeremy Ma here is the Chief Justice of the Hong Kong Court of Final Appeal and he'll speak tonight on what have ships ever done for you. the impact of maritime law. Now, I know, I can't say the title without smiling. It invites or insights perhaps comments even before you heard the lecture but before I get too flippant, I want to introduce the speaker. Rwy'n cael ei wneud o'r gweithio. Rwy'n gweithio'n gweithio. Jeffree was born in Hong Kong, educated in England from an early age. He studied law at Birmingham University, he completed the bar finals and was called to the bar and grazed in. Over the next few years, he also practised and was called to the bar in Hong Kong and Australia and Singapore. His practice was based in temple chambers in Hong Kong, which is one of the leading chambers there. Jeffree rose to be the head of chambers prior to his first judicial appointment. He was appointed first of all as a judge of the Court of First Instance in 2001, and then a year later Justice of Appeal, and then a year later Chief Judge of the High Court, and then in 2010 Chief Justice of the Court of Final Appeal, and he's the second person to hold that office. So, over those years, not really very long, rather meteoric professional successes, the public accolades also rolled in. Jeffree had been appointed Queen's Council in 1993, he's an honorary venture of Grey's Inn and, as of last night, also of Middle Temple. He has an honorary doctorate of laws from the University of Birmingham. He was awarded the Grand Bohinio Medal in 2012 in Hong Kong, that's the highest order that can be bestowed on someone in Hong Kong, and just last year he was made an officer of the Legion of Honor by the French government. So, in case all of that just makes you groan and think, does this man devote his entire life to the law, I must let you in on a secret. I'm quite sure that the title of Officer of the Legion of Honor was awarded to Jeffree for his tireless efforts to uphold the rule of law, the independence of the judiciary, and all those things to which France attaches such great importance. But it is reported that it was also in recognition of Jeffree's tireless contribution to the promotion of French culture in Hong Kong, and in particular his enormous backing of French cinema, and indeed of cinema of all times. So, if you sit next to him at dinner, this will not escape you. He would not really be out of place on the set of suits along with Harvey and Mike. But behind all those letters and accolades, and the movies, there is indeed a lot of law. Jeffree has a wide legal experience in many areas of private law. His main areas of practice were arbitration, commercial law, including shipping of course, but also banking, insurance, company law, construction disputes. And then as well, administrative and constitutional law. And in his role as Chief Justice, he does have administrative responsibility for all the Hong Kong courts, and a very public role in Hong Kong as defender of both the independence of the judiciary and the rule of law. And I think that you'll find that somehow or other all of that is brought to bear on the question of what have ships ever done for you. So without more, I'll hand over to Jeffree. He's going to speak for 50 minutes, perhaps a little bit longer, and then we'll have time for questions, and then we'll have drinks. So, over to you, Jeffree. If you look at the number of glasses there, there are about nine glasses, three jugs of water. You'll think I'll be there for about, here for about nine days. Actually there's more than nine glasses, a stack of blue ones there as well. Thank you very much, Sarah. It's actually sound like the person who's standing here. That's probably why you need a picture of me flashing rather nauseously every five seconds. Thank you, University of Cambridge, and particularly the Downing Professor of Laws, Professor Sarah Worthington, for this kind invitation to speak. I'll also thank, of course, Alan and Overy, for sponsoring the lecture. It is an immense honour and privilege for me to be invited to deliver this lecture. It is among the most prestigious in Cambridge. Almost exactly a month ago in Hong Kong, I attended a symposium organised by the Academy of Law of the Law Society in Hong Kong, in which the theme was commercial law through the courts rebalancing the relationship between the courts and arbitration. This was intended as a debate over the conflict between, on the one hand, the contribution arbitration has made to the administration of justice, and on the other, what many see as the stifling of the development of in particular commercial law by the paucity of cases going through the courts. Some controversy was caused by a lecture that I called, delivered by the Lord Chief Justice, Lord Thomas Ovan. This is the hard part. Cwm gyd. Cwm gyd. Cwm gyd. Cwm gyd. Cwm gyd. Earlier this year, in that lecture, Lord Thomas gave his view that the development of commercial arbitration had gone too far, and this had had a definite and adverse impact on the development of the common law. The lecture provoked a heated response from arbitrators, as you would expect, and those sympathetic to arbitration. Lord Thomas' suggestion that perhaps the law ought to be changed to allow more arbitration awards to come before the courts, but further consideration was met with a strong criticism that this would be a wholly retrograde step. Lord Savill of Nudigate, writing in the letter to the Times, which was headed, reforms will threaten London's place as a world arbitration centre, asked rhetorically why in other words should they, commercial litigants, be obliged to finance the development of English commercial law. I, of course, seek both points of view, and, depending on the hat I wear, agree with both. As a lawyer, I admire the way how the law has developed historically through commercial cases going through the courts. Great names have contributed significantly to the development of commercial law. You will come across all these in the cases going through, when you go through the cases. Lord Mansfield, Lord Justice Scrutton, Lord Devlin, Lord Reid, Lord Dipplock, Lord Wilberforce, Lord Gough, Lord Bingham. Fear of embarrassing the great commercial judges of today prevents me from naming them. Wearing my hat as Chief Justice, however, and looking overall at the administration of justice, there is no dispute that arbitration has made significant contributions to commercial dispute resolution and is here to stay. The changes made to arbitration legislation in Hong Kong, as well as elsewhere, inclined ever more towards a virtual exclusion of the courts. In a busy, overstretched legal jurisdiction such as Hong Kong, of course, in London, arbitration has relieved much of the strain on the court system to ensure that justice has delivered expeditiously and efficiently. However, it is in my capacity as a lawyer that I deliver this evening's lecture. When Professor Worthington first suggested I might perhaps be persuaded to speak, my first reaction was indeed to suggest the importance of shipping law to commercial jurisprudence. This elicited a following response from her by email. This is what Sarah said. I can see the title already. What have ships done for the common law? Yes, that could certainly work. I remember Roy Good once telling me that if you wanted to know what the common law rule was about anything, you could see what the maritime rule was and the common law on land was typically precisely the opposite. But some very serious maritime laws tell me this is not true. I thank Professor Worthington for enabling me to come up with a title tonight. Maritime law brings back good memories for me. I spent a year's pupillage doing maritime law. On my first day of pupillage with Mr Vida, VV Vida, or Johnny Vida, I worked on a set of papers called the jacuma. This is a rather cute thing about shipping cases. You just use the name of the ship simply because the names of the parties are unpronounceable most of the time. The jacuma is the case. Facts involve the time charter party and an owner's right to withdraw through non-payment of hire by the time charterers. To withdraw clause in a charter party was in standard form. Case went to arbitration. Special case was stated by the arbitrator Donald Davies and the matter proceeded all the way to the House of Lords. Case is reported. By the time was in the Lords, I was well into practice in Hong Kong. However, two of my former pupil masters in London were against each other. Roger Buckley was one and Johnny Vida both led. One part of the speech of Lord Bridge of Harwich is a relevance to the themes of legal certainty and perceived commercial justice which I shall develop presently. Lord Bridge said this, whereas here they embody in their contracts common form clauses. It is to my mind of overriding importance that their meaning and legal effect should be certain and well understood. The ideal of which the court should aim in construing such clauses is to produce a result such that in any given situation both parties seeking legal advice as to their rights and obligations can expect the same clear and confident answer from their advisers and neither will be tempted to embark on long and expensive litigation in the belief victory depends on winning the sympathy of the court. This idea may never be fully attainable but we shall certainly never even approximate to it unless we strive to follow clear and consistent principles and steadfast refuse to be blown off course by the supposed merits of the individual cases. This is highlights to Concord. I developed a shipping practice my early years in practice as a barrister. At least for as long as I was still able to read the reverse of a bill of lading. I don't know how many of you tried reading a bill of lading. It's a possible I can't do that now. I did both wet, strictly admiralty law such as arrests and collisions as well as dry work, cargo claims. It was a real pleasure for me being reminded of this part of my practice when the Hong Kong Court of Fine Appeals heard two cases with a maritime flavour the past few years. Once involved the collision resulting in the sinking of the vessel in a buoy channel in Hong Kong. Factual part of the court's judgement is written by Lord Clark of Stonecombe Ebony, well-known admiralty law in his practice days. Second case was a rarity in Hong Kong and in recent years anywhere else in the world case involving marine insurance. This was the only judgement I've written on marine insurance having written many opinions on the subject when in practice and gave me an opportunity to acknowledge the assistance I gained from two lawyers whom I admire, the present downing of Professor Laws in a book on equity and Lord Mansfield. Enough written reminiscences and back to a more serious discussion. In this talk I should try without getting too much into intricacies or technicalities to provide some views on the impact of maritime law. Maritime law really needs no introduction and the usual starting point is to refer to a well-known statement of Lord Goff in the Wilberforce lecture of 1998 when he said this. The title of the lecture was The Future of the Common Law. Lord Goff said this, for the English the characteristic commercial contract is a contract for the carried-up goods by sea. It's true that content of English commercial law, being one of the jewels of the common law, has greatly influenced the development of commercial law all over the world. Individual cases may not always have been followed, but they have invariably influenced. For example, in Australia the emphasis has perhaps more been on the development of equitable principles but the influence of English commercial law has without doubt been significant. Certainly as we should see, English commercial law has been greatly influential on the common law of Hong Kong. Here incidentally, in terms of the common law of Hong Kong, we have a number of English judges or judges from common law jurisdictions sitting in our court of final appeal. Last couple of weeks ago, Nicholas Phillips, Lord Phillips sat with us and, as for next week, Lord Hoffman would be sitting with us. There are a number of distinguished judges on our panel. A number of extremely learned and interesting articles have been written about the influence of maritime law and I shall be referring to some of them. Chief among these has been the classic piece by Professor Francis Reynolds, maritime and other influences of the commercial law. It's a wonderful article. It's not my intention to repeat the themes in that or indeed any other paper. I can't possibly hope tonight to reach these depths of learning, but I wish instead to focus in the maritime context on what I see to be two principles of the common law that can be set at times to pull in different directions. These are the need for legal certainty, as contrasted with the need to develop the law to arrive at just results or what may proceed to be just results. I found this potential conflict and the way it's been considered by the English courts to be the most interesting aspect of maritime law. It is this facet that has in my view contributed significantly to the richness of the common law. Contribution lies in the very fact that it provokes more thought, sometimes even controversy and this must as a matter of principle be conducive to the continuing development of the law. In the study of law, I dare say, most in this room will perhaps not disagree with this statement. Before I analyse this further, it is of course uncontroversial to maintain that the contribution of maritime law to the common law has been immense. As I've remarked, many learned commentators have already written on this contribution. The famous case of Hong Kong fur shipping ends Kawasaki Kishintaisha and the analysis contained the judgment of law justice diplomat of the circumstances in which a contract can be discharged when one party fails to do that, which as it is agreed to be done is one of the most iconic and written about cases in the law of contract. It dealt with a problem that attacks the English courts for centuries, probably ever since a sum emerged as a form of action as distinct from covenant and debt. These are all historical cause of action. The problem was that it was not possible in some cases without causing injustice simply to classify terms of contract as either conditions or warranties the breach which had the consequence either enabling an innocent party to terminate the contract and ending the case of a breach of warranty to claim damages but that it was important to look at the consequences of breach. From this came the concept of intermediate or anonymous terms. Analysis embarked on by a law justice diplomat was a compelling and lucid one. Although it has since been sent by Professor Donald Nolan that his reasoning was not, as has been said by Professor Turner holy novel, indeed revolutionary, this owing to cases like Universal Cargo, Carries and Satati. The important point to bear in mind for present purposes is that the opportunity to embark on the brilliant analysis undertaken by law justice diplomat came about because of the nature of maritime contracts. In most contract cases the point as to in nominate terms would simply not have arisen. However it arose in Hong Kong firm due to the nature of the standard form regarding a ship owners obligation to provide a sea worthy vessel in charter parties. For use of studied shipping law it's a standard term that a ship should be in every way fitted for cargo service and that the owner should maintain her in a thoroughly efficient state in hull and machinery due to to provide a sea worthy vessel. As was stated by law justice diplomat the undertaking to provide a sea worthy vessel could be broken in a number of ways with different consequences ranging in severity. I said this, as my brethren have already pointed out the ship owners undertaking to tender a sea worthy ship has as a result of numerous decisions as to what can amount to un-sea worthiness become one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery stores and equipment and accrue itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. The only point I'm trying to make is that the peculiar characteristics inherent in a marine adventure gave rise, give rise to potentially complicated questions of law questions which do not necessarily rise in other commercial contexts. Another example of this is that provided, this case which provides huge difficulties for law students certainly I remember to grasp the Swiss Atlantic case. The complexities arising out of the obligation to provide a sea worthy vessel fundamental to shipping since ancient times give rise as we have just seen to a quite revolutionary way of looking at the terms of a contractual relationship. Another characteristic peculiar to contracts involving the carriage goods by sea is the complex number of contractual relationships that can exist in a marine adventure. This is succinctly summarised by Professor Francis Rose. Marine adventures are frequently governed, not by one contract between two parties, by a complexity of different even interrelated arrangements between a variety of parties. For these reasons sea transport has required more extensive and complex law than other forms of transport. What Professor Rose then alludes to is the aspect of marine insurance in which the different risks assumed by participants in a marine adventure are allocated and in this way rated and insured. Insurance is indeed an important aspect but the liabilities of the different participants towards each other have also to be determined. Here complications may arise when one party not in a contractual relationship with no person makes a claim against that person. The ability to sue does not cause any difficulty. An absence of a contractual relationship will not prevent an action of thought. Of course in this context referring to the paradigm of a cargo owner making a claim against a carrier in respect of loss or damage to goods carried on a ship. On the assumption that at the time of the loss or damage that plaintiff had legal ownership or a possessory title a claimant tort would be available, claimant tort will however not be available where the interest of the claimant in the goods is merely a contractual one. In a shipping context, given the fact that the relevant goods will always be the subject of the series of sales and sub-sales, this is inherent in international sales of goods, questions of a title to sue can be a real one and sometimes unfairness occasionate but the principle is well known. You'll see a number of cases. I've listed here the mineral transporter, the Aliacman. Incidentally, this strict legal position has now someone modified. For example, a claimant tort will be possible that the legal owner who would have title to sue is joined. The possibility was dealt with by Lord Brandon in Aliacman and was confirmed to be the law by the Court of Appeal in Shell against Tokyo. It's also perhaps noteworthy that in the Aliacman it was additionally argued by Mr Anthony Clark, the Clark of Stonecomberley that it should suffice if an equitable interest could be shown in the relevant goods. This was rejected on the basis that the sale of goods at 1893 drew no distinction between legal and equitable ownership. I mention this now because of the seeming reluctance of the common law to allow equitable principles to govern international transactions. This has been the source of adverse comments from time to time. Now where a claim of tort is possible, the practical problem which arises is this. In a cargo claim, the ultimate carrier may wish to rely on exemption clauses contained in the contract of carriage and made by it with another person, but finds itself unable to do so by reason of the lack of privity of contract with the cargo owner who is suing it. In the shipping scenario, this arises most commonly where owners of cargo, whom I'll call A, engage in intermediate carrier, B, to transport goods by C and that intermediate carrier enters into a contract of carriage with the ultimate carrier C. There is loss or damage, ASU C, C wishes to rely on exemption clause in its contract with B. There may be more intermediaries in other situations, but this example is the simplest one to make the point. Under the strict doctrine of the privity of contract, C cannot rely on the exemption clause, any exemption clause, through lack of privity of contract. Midland silicons and Scrutins, as the case says that. Simple enough proposition, which in most cases will probably yield a right result and certainly has prompted consistency and certainty in the law. However, in a complex set of relationships which underlie carriage by C and also given the risk inherent in such carriage, the strict doctrine may result in an injustice. By injustice, I'm of course using it in the sense of commercial inexpediency, not in the sense of personal injustice or in any human-like sense. Limitation of liabilities of the essence in a marine adventure. There is perhaps no form of commercial contract dealt with by the common law in which it should more commonly be. This also filters through the other forms of carriages as well, by air, road, rail. Exemption clauses also feature a lot in consumer contracts, but in this area this is now largely governed for exclusively by statute. In the carriage of goods by C, it is easy to see why limitation of liability of critical importance, critical commercial importance, so much so that not only statuteed to be international conventions also prescribe limits. Here give some examples, merchant shipping statutes such as the merchant shipping acts, conventions include aid rules, aid visby rules, convention on the limitation of liability on maritime claims 1976. At the level of the law of contract, we see from many of the major shipping cases that at the heart of them has been the attempt to exclude or limit liability. Suisatlantika mentioned at a minute ago, a fundamental issue determined by the House of Lords was directly related to the limitation of the damages payable following a failure to perform sufficient voyages under a charter party. Now in the example I've earlier referred to, C, the actual carrier, wishes to limit its liability to A, the cargo owner. Having been at pains was to ensure this by the terms of its contract with the intermediary B. An inability to do so was obviously commercially undesirable for the reasons just articulated. This undesirability was put best by Lord Goff in the Makatai of Privy Council case from Hong Kong. I'll further this again. And the commercial rationale of an exemption clause was stated to be this. More recent years, the pendulum of judicial opinion has swung back away. As recognition has been given to the undesirability, especially in a commercial contract, of allowing plaintiffs to circumvent contractual exception clauses by suing in particular the servant or agent of the contracting party who cause irrelevant damage, thereby undermining the purpose of the exception. And so we dispute actual allocation of risk which is reflected in the freight rate and in the party's respective insurance arrangements. This passage lays emphasis on the commercial interrelationships that occur in shipping involving not just a carrier, goods owners and intermediaries but also beyond them, insurers and re-insurers. It is about money and profit from beginning to end. This is after all, commerce distilled into its essential ingredient. Commercial law found a number of methods to tackle this undesirability. It is enough for me to refer to just a few of the cases to make the point that they are all shipping cases and also the point that it was not coincidental that they happen to be shipping cases. The nature of shipping itself gave rise to the problems faced and determined by the courts. The cases two from Hong Kong are all decisions of the Privy Council. The first case is the Eurimidon, always hard to pronounce that, also known as the New Zealand shipping case and New Zealand shipping against Saturday. This marked the first significant reaction against what was seen to be the harshness or commercial undesirability of midland silicars. There by the device of the Himalaya clause, a third party, in that case, stevedores could take advantage of protection under a contract through agency principles. The Himalaya clause is a classic clause we find in builds of lading, whereby the carrier undertakes as the agent of persons like stevedores to give them the benefit of exemption of the Himalaya clauses. The Himalaya clause is a famous clause. When I was in Pupillage, it was often said that Lord Mustle, Michael Mustle then, had drafted the Himalaya clause. I don't think that it's necessarily true now because it was in existence in the 1960s. For those of you, actually this is a bit of self-indulgence, I always wanted to find out how the term the Himalaya clause came about because certainly it's not something which you see in the Eurimidon but it comes from a case called Adler and Dix, a case of Lord Justice Denny, in which the ship there was called the Himalaya. Now, back to the talk. Commercial expediencies certainly favoured such a result, the agency result. And as Lord Wilberforce who wrote the judgment for the majority, it was a 3-2 decision and Viscount Dillard and Lord Simon wrote very strong dissent in judgments. Lord Wilberforce said this, to give the stevedores the benefit of the exemptions and limitations contained in the Bill of Lading is to give effect to the clear intentions in a commercial document. It should not be overlooked that the effect of denying validity to the clause would be the encourage actions against servants, agents and independent contractors in order to get around exemptions which are always invariable and often compulsory, accepted by shippers against carriers, the existence and presumed efficacy of which is reflected in the rates of freight. The earlier point about the interrelationships in a shipping context, all with a view to financial profit is again emphasised. Secretary, in a context of a cargo plane made by A, owner of goods against a carrier C who is not in direct contractual relationship with A, but who has a contract with an intermediary B. Another device that has been developed by the courts is the concept of bailment on terms. This occurs when an owner of cargo contract A contracts with another person B to have good ship to a destination, and this contract of carriage contains a provision to subcontract the obligation of carriage to other people. When the intermediate carrier B then subcontract the carriage to the actual carrier C, this will inevitably be subject to another contract of carriage to the actual carrier and the intermediate one. ASU C for damage or loss, C wishes to rely on exclusion clause in its contract with B. There is no privity of contract between A and C. However, in a bailment analysis, A has bailed its goods to B who in turn sub-bails to C. C will be able to rely on the terms of its contract with B in any claim by A provided on the facts of the case A has either authorised B to enter into a contract containing such terms or consented to such terms. This analysis was adopted by the privy council on appeal from Hong Kong in a case called the Pioneer Container. In that case it was held on the facts that the cargo owner had so authorised or consented. The relevant provision in the contract of carriage with the intermediate carrier B was in the following terms. The carrier shall be entitled to subcontract on any terms the whole or any part of the handling, storage or carriage of the goods and any and all duties whatsoever undertaken by the carrier in relation to the goods. The particular term sought to be relied on was an exclusive jurisdiction clause not strictly speaking an exemption clause. The privy council however was of view that to allow the carrier to rely on the exclusive jurisdiction clause would be in accordance with the reasonable commercial expectations of those who engage in this type of trade and that such incorporation would generally lead to a conclusion which is eminently sensible in the context of the carriage of goods by sea. Bailment on terms was revisited by the privy council from Hong Kong in the Macro time in which is contained a very useful legal historical account of the law regarding privy of contract in the shipping context. There the position was the opposite of that in the pioneer container here see the actual carrier was seeking to rely on a term of contract to an A and B to cargo owner and the immediate carrier. Again an exclusive jurisdiction clause. It was held that the actual carrier could not rely on this clause. There was a limit to how far contractual principles could be stretched. But the facts could not be comfortably fitted into the operation of a Himalaya clause requiring agency or the principles of bailment on terms requiring authorization of consent and it would simply be wrong to false and resign however desirable it may be commercially. It should be noted that even the invention of these two devices was not without criticism. Many eminent commentators have over the years been somewhat critical of the reasoning in the uriming. Lord Billiam referred to the undoubted artificiality of the reasoning in that case. If the matter had to be put on a more concrete, uncontroversial footing, statutory intervention was necessary. In England the contract Rights of Third Parties Act 1999 provides a statutory basis for exceptions to the doctrine of privity of contract. According to the law commission report which led to the statute being passed its central purpose was basically to enable third parties to acquire rights under a contract if this was what was intended. Professor Reynolds refers to the statute as cutting the gaudian knot of privity. Time will tell whether this is correct but I'm sure many more interesting situations will present themselves at some point. There's no doubt that the enactment of the 1999 act was influenced by those maritime cases I've discussed. In the Maccatech Lord Goff in referring to the technical nature of the principle employed bailmen on terms to avoid the harshness of the doctrine of privity this being all too apparent said that time may well come when in an appropriate case it will fall to be considered whether the court should take what may legitimately be perceived to be the final and perhaps inevitable step in this development and recognise in these cases a fully fledged exception with the doctrine of privity of contract thus escaping from all the technicalities with which the courts now faced an English law. In the law commission report preceding the act it stated while our proposed reform would reach the same result as in the Maccatech it would bring about at a stroke what Lord Goff regarded as a desirable development in that it would sweep away the technicalities applying to the enforcement by expressly designated third parties of exclusion clauses. Now this act would not have been the first occasion in which major statutory reforms extending well beyond the maritime context have been much influenced by maritime jurisprudence. The law of negligence especially where the actor or omission of the plaintiff has contributed to the injury or lost claim had for many years been dogged by the development of principles which appear to have exacerbated rather than elucidated. In the 19th century the law was painfully simple contributory negligence was at one stage a complete defence to a claim in negligence. The injustice of such a simple proposition was easy to see but rather than dot what may appear to have been a more common sense approach the courts invented refinements such as the so-called last opportunity rule. This was a rule which derived principally from cases like Davison Mann and British Columbia their electric railroad company against Loach. Davison Mann is an amusing case and I nearly actually made the title of this talk of donkeys and ships because Davison Mann is an 1842 case I'm going to read a little bit from you which is it's a famous case where the plaintiff's donkey had been tethered but allowed to graze on a public highway. Defendants wagon was driven at speed and killed the donkey. It was held that in spite of the plaintiff's negligence at having this donkey roam around the equivalent of the M1 since the defendant the wagon, the car the speeding car had the last opportunity to avoid the accident he was liable in full to compensate for the unfortunate donkey. The rule was most clearly put by Vakant Simon in a collision case called the boy Andrew. The principle of Davison Mann has often been explained as a mounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the others carelessness carelessness is alone liable. You don't need me to tell you how over the years this principle must have caused the greatest difficulty of evidence in practical terms and over the years meant a period of over a century. The difficulties and unsatisfactory nature of the last opportunity approach however did not apply to admiralty actions involving collisions where the courts took a more common sense approach where both parties are negligence both are to blame and an apportionment of liability can be undertaken and this is necessary if you have the money side of it you are liable for cargo clays proportionally and so on. The Maritime Conventions Act of 1911 provided a statutory basis for this approach in collision cases. This approach was consistent with the civil law approach. The position is best articulated by Lord Birkenhead, Effie Smith, in the Volute. Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon common sense principles as a jury would probably deal with it. And while no doubt where a clear line can be drawn the subsequent negligence is the only one to look to. There are cases in which the two acts come so closely together and the second act of negligence is so much mixed up for the state of things brought about by the first act where the parties secondly negligent while not free to blame under the legal might on the other hand invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution. The Maritime Conventions Act with its provisions for nice qualifications as to the quantum of blame and the proportions in which contribution is to be made may be taken as to some extent declaratory of the admity rule in this respect. It's not often that you get a quote from Lord Birkenhead in an admity context. The common sense of the shipping cases eventually influenced the change in the law generally. The Law Reform Contribute Negligence Act 1945 was passed after many years of deliberation by the Law Revision Committee. It is still in force and its terms have been adopted in many common law jurisdictions. Now I've now used a term common sense a number of times and this of course by itself in a vacuum means very little. In the commercial context it has to be equated with two concepts that have featured in maritime cases mentioned these before. The perceived justice of the case and the need for certainty. The latter concept, certainty is of considerable importance because of the complex interrelationships arising in commerce as I've early identified and of course I would reiterate the point that everything in commercial life is geared towards one objective money and the making of profits. As we have seen in the marine adventure for example, certainty is required so that profits and cost estimates may be calculated, insurance affected and so on. And as we have also seen many of the cases decided by the cause recognised a need for certainty to meet the expectations of the commercial world. This was after all the rationale to the establishment of the commercial port here in England and gave rise to a common view that the courts were part of a service industry. Not a term I would use but it gets the message across. Mr Justice Devlin said in St John's shipping that the commercial port was introduced in England and it might solve the disputes of commercial men in a way which they understood and appreciated and it is a particular misfortune for it that it has to deny that service to any except those who are clearly undeserving of it. The last part of this quote is perhaps a reference to the aspect of justice or perceived justice which can at times be at odds with commercial certainty. In the area of remedies for breach of contract these two concepts have at times collided and these have arisen in maritime situations. The importance of remedies is of course obvious in the commercial context to put it bluntly this is where the money is. Professor Reynolds is of the view that maritime law has been the most influential in the area of remedies. The controversial decision of the House of Lords in a case called the Golden Victory provides a good illustration of this conflict. There a time charter party was repudiated by the Charteries by an early re-delivery and this is accepted by ship owners anticipated to breach repudiating a contract to repudiation being accepted. A clause in the charter party provided for the right of either party to cancel the charter should war or hostilities break out between two or more of a number of countries in dude in the USA UK and Iraq. At the time the charter party was terminated by the acceptance of the charteries repudiation, no war or hostilities were in sight. However, subsequently the Gulf War broke out which would if the charter party had been alive have activated the cancellation clause. The important question for present purposes was even though the event which would have triggered the cancellation clause came after the termination of the contract could that event nonetheless be taken into account to limit the amount of damages payable by the defaulting Charteries to the ship owners. The normal rule of damages in the situation of anticipatory breach of contract as in all breaches of contract is the innocent parties to be put into the same position as if the contract had been performed. This usually means subject to the duty to mitigate that where there is an available market the innocent party is entitled to the difference between the higher rate under the breach charter party and the higher rate in the available market at the time of breach if this difference results in loss. As Lord Bingham put it this legal position governs whatever the actual facts are and the rationale is one of simple commercial fairness. Such a legal position is a certain one and would normally make the peculiar facts of any case quite irrelevant. As I've said the relevant time to look at damages is the date of breach what may have happened afterwards would be quite the material. However the majority of the house of Lords Lord Scott Lord Cosworth Lord Brown differed from this basic approach and took into account the event of war which actually happened to limit the amount of damages instead of assessing damages using the duration of the unexpired period of the breach charter party the court would limit the time until the outbreak of the Gulf War. Rather than assess damages as of the date of breach the normal position the majority looked at the matter with the benefit of hindsight. This approach can be simply stated this accorded with perceived justice and common sense the perceived injustice would be that if no account was taken of real events the ship owners would be over compensated. As a matter of principle the point can be put in this way why should the court speculate in a make-believe situation inherent in the assessment of damages for anticipatory breach which has been accepted when it should base itself on what actually happened. As Lord Bingham put it in non-judicial discourse the point has been made that you need not gaze into the crystal ball when you can read the book. The reasoning of the majority can be said to be persuasive and the approach has subsequently found favour this time unanimously by the Supreme Court in Bunch and Madera. But then so was the reasoning of the minority and the dissenting judgements are powerful ones the dissenters were Lord Bingham and Lord Walker. The reasoning of the minority was also based on principle and emphasised the need for certainty in commercial contracts. Lord Bingham of Cornhill could not have put it more strongly when he said this the importance of certainty and predictability in commercial transactions has been a constant theme of English commercial law at any rate since the judgement of Lord Mansfield in Valehawn Weaver. Lord Walker of guesting thought expressed a concurring view in his speech. The minority's criticism of the majority position has force. What hitherto had been a workable certain formula for damages was suddenly then thrust in any given situation in any given case into uncertainty and therefore potential unfairness in that the quantum of damages may depend on fortuitous occurrences not apparent at the date of termination and which may only come to light depending on the speed of the relevant legal proceedings. In this scenario commercial people may find it difficult to calculate profits liabilities and to ensure accordingly. It also places legal advisers in a difficult position when advising on whether an anticipatory breach should be accepted. Now, nevertheless, it's not my place to venture any opinion that is not extra judicially on the correctness of cases like the golden victory. Many learned writers have already done that. My emphasis, rather, is on the development, exposition, application of legal principles and situations brought about by the uniqueness of shipping and how these have influenced other spheres of commercial law. On the damages part I would just further refer but not discuss the very interesting case of the House of Lords in the Achilias. There, again, owing to a unique feature in shipping this time regarding huge fluctuations in freight rates, difficult questions of remoteness were raised, requiring an ingenious development contained in the speeches of Lord Hoffman, Lord Hope and Lord Walker of the concept of a sanction of responsibility in the context of remoteness and foreseeability of damage. This is a concept which effectively limits what could otherwise be a massive monetary liability placed on contract breakers in situations of fluctuating market prices and chain contracts. It suggests that however foreseeable a type of damage may be there will be no liability to compensate unless the contract breaker can be said somehow to have assumed responsibility for it. This is an interesting development and represents yet another vital discussion of the type of problems arising from the principle of remoteness and damage. The concept of assumption responsibilities have implied in Hong Kong to breach of contracts for the sale of property. I see the joint judgment of my colleagues Bob Rivera and Joseph Faw in Richley Bright and De Monza. Light freight rates, property prices in Hong Kong can fluctuate dramatically. We can envisage that the concept of assumption of responsibility can give rise to certainty. The point was made by Baroness Hale in the Achilles. She said this, another answer to the question given as I understand as I understand it by my noble and learned friends Lord Hoffman and Lord Hope must ask not only whether the parties must be taken to have had this type of loss within their contemplation when the contract was made but also whether they must be taken to have had liability for this type of loss within their contemplation. In other words is the charterer to be taken to have undertaken legal responsibility for this type of loss what should the unspoken terms of their contract be taken to be. If that is the question then it becomes relevant to ask what has become the normal expectation of parties to such contracts in this particular market. In an attempt to highlight the two concepts I've been discussing a warning was sounded by Baroness Hale although it's result in this case may be to bring about certainty and clarity in this particular market where those limit on liability could easily be at the expense of justice in some future case. Now there's another part of Baroness Hale's judgment where she said well this is an interesting academic question and depending on the answer you either get a normal first or a congratulatory first I don't know how she marked Lord Hoffman and Lord Hope. Now to conclude we're all familiar with concepts of justice, fairness, commercial expediency and the need for certainty. Over the years as I've tried to touch on shipping cases by their very nature have enriched our understanding of these concepts and indeed the law in general. Further what must not be underestimated is the depth of academic writings on maritime law and it is perhaps right to say that that area of law has such learning been more utilised by the courts. A glance at some of the cases referred to earlier will confirm this references to academic writings. In the Spiliada, which is a forum non-convenience case Lord Goff paid tribute to academic jurists and I'd like to do the same. Said this I feel that I cannot conclude which have assisted me in the preparation of this opinion. They will observe that I have not agreed with them on all points but even when I have disagreed with them I found their work to be of assistance. For jurists are pilgrims with us on the endless road to unattainable perfection. And we have it on the excellent authority of Geoffrey Trotser that conversations among pilgrims can be most rewarding. Many interesting challenges and questions lie ahead as yet unresolved. I've already mentioned the more limited role courts have in determining maritime cases by reason of the extension of dispute resolution by arbitration. Yet maritime law needs further development. We have not reached a stage where all that is required is a straightforward application of established law to facts. The relevance of equity to maritime law, for example, is an area right for further development. The decision of the House of Lords in a case called the SCAP trade restricted the application of equity. In that case the House of Lords refused to apply the equitable concept of relief against forfeiture to a timed charter party where the ship owner had withdrawn the vessel following a late payment of hire by the charterer to apply this concept relief against forfeiture would not be consistent with commercial certainty. Lord Diplom quoted from Lord Justice Robert Gough who wrote in the Court of Appeal it is of the utmost importance in commercial transactions that if any particular event occurs which may affect the party's respective rights under a commercial contract they should know where they stand. In this case SCAP trade attracted criticism as Justice Gummo a well-known equity judge from Australia of the High Court of Australia has said of that decision he asked rather bluntly is the issue of personal services so plain to Lord Diplom and the coterie of common Lord judges who comprise the House the coterie as he puts it comprise Lord Keith Lord Skarman, Lord Roskill Lord Bridge is so plain to Lord Diplom and the coterie of common Lord judges so plain to equity lawyers this rivalry between equity lawyers and commercial lawyers can perhaps be a suitable subject in this lecture for another day and it would be an interesting lecture. Thank you.