Actions in tort in respect of the carriage of goods by sea have always been possible in the days of the law as we know it now. The first editions of both Carver and Scrutton, dated 1885 and 1886 respectively and of course well before a whisper of Donoghue v. Stevenson, both make it clear that carriers may be liable in tort as well as in contract, and subsequent editions have said the same in very similar wording, though with very little explanation. But a stream of recent and not so recent leading cases provides reminders of this possibility. One might cite particularly the recent decisions of the House of Lords in The Sennar (No. 2)1, which concerns the application of an exclusive jurisdiction clause to a tort claim in respect of a false representation in a bill of lading and The Antonis P. Lemos 2, which concerns the question whether a claim in tort ranks as “any claim arising out of an agreement relating to the carriage of goods in a ship or the use or hire of a ship” for the purpose of Admiralty jurisdiction; also The Aliakmon 3, a decision of the English Court of Appeal concerning title to sue in tort for damage to cargo. This last case reconsiders the well-known Margarine Union case4 of 1969 on the same topic, and the more recent Irene’s Success 5 where Lloyd, J., decided that developments in negligence liability subsequent to 1969 required new conclusions on this issue. Taking it further back, the leading cases on the extent to which stevedores when sued in tort can take advantage of the Hague Rules protections, The Eurymedon 6 and The New York Star 7, are still fresh in the memory.

There may be difficulty in seeing how some of these tort claims, for example that in The Antonis P. Lemos, would stand up. But so long as such claims were confined to actions in respect of destruction of or damage to property, they could be accommodated within a framework which is largely contractual without much difficulty. A number of leading cases in Australia, New Zealand and the United Kingdom have however extended the possibility of negligence actions, especially in respect of purely financial loss. Obvious examples are the Caltex 8 case and Junior Books 9. What we have seen in England subsequently can be represented as a tendency to draw back on this issue. To the cautious dicta in Tate & Lyle Industries Ltd. v. Greater London Council 10 and Peabody Donation Fund v. Sir Lindsay Parkinson Ltd.11