Business Law

abstract image. Principal Doctrinal Requirements.

M aritime Law of Salvage, second edition, 1993, referring to this passage. There are of course countless situations in which salvage of a vessel and her cargo is required. Where the danger to the ship is such that the services provided would be classified as salvage services under the general principles of law the extent of the danger to which the ship and cargo are exposed id such as to constitute an emergency giving rise to the need to take measures to protect the ship and cargo in the form of engaging a salvage service. A pplicable in general commercial contexts. Firstly, although the court in the Bonita (1861) 1 Lush 252 used “necessity” as an alternative to Necessity, Clarke J in The “PA Mar” clearly advocated a two stage test for necessity an emergency and a consequent need to act. The term “necessity presupposes a compelling need not be on the high seas. In The Gratitudine (1775-1802) all ER Rep 283, 3 Ch Rob 240. The case of a ship which has entered the entered port with a perishable cargo and where the master has been unable to correspond with the proprietor, suppose the ship to be unable to proceed or to require repairs to enable her to proceed in time. In such emergencies the master is necessarily appointed agent, unless it is the policy of the law to allow the cargo to perish unprovided for. ( Tesley & Co. v. British Trade Corp (1922) 10 LI L Rep.678) as Wright J. In Sedgwick, Collins & Co Ltd v. Highton and other (1929) 34 LI.L.Rep.448 at 456 commented as I do not find anywhere any suggestion that the taking out of insurance in such circumstances could fall within the ambit od an emergency proxy. Steam Navigation Co v Morse (1872) LR 4 PC 222, Sir Montague Smith described necessity (at 230) as “an irresistible”, compelling power. What is meant by it in such cases is the force of circumstances determining the course a man should take. I t is unlikely that this compelling power includes commercial or financial constraints, as Singleton L.J in John Koch, Ltdv . C. & H Products Ltd (1956) 2 Lloyd’s Rep 59, p.65 I do not consider that the question of necessity substitution arises in this case. The warehouse charges were running. No one doubted the ability of the defendants to meet them . There was no suggestion by them that the financial stability of the defendant..

Necessity may arise from external events, the character of the assets, or a combination of these, but it is clear that the "necessity" must relate to the nature of the goods entrusted and the risks to which they were exposed, i.e. that either the ship or the cargo or both must be protected or preserved from an immediate risk of loss (Kleinwort, Cohen, & Co. v. The Cassa Marittima of Genoa (1876-77) L.R. 2 App. Cas.156).Thus, there is no "emergency" in which goods can be safely stored, as McCardie J. pointed out in relation to furs in Prager (at 573). no sufficient reason for the defendants to sell them, for I am satisfied that nothing prevented the defendants from putting them in cold storage, and a fortiori nothing prevented them from taking reasonable care to keep them in their own storage.“ To emphasise this point, his Lordship went on to set out a cost-benefit test. The plaintiff had paid nearly 19001. for them and their value was steadily increasing. The defendant's counter-bill was less than 4001. The margin of profit was therefore extremely generous. “ Similarly, in the Sachs case, Miklos could not stop the voluntary and gratuitous deposit of furniture (non-perishable goods), even though the continued storage hindered Miklos' business. In the case of live animals and "non-perishable goods" at risk, the courts take a different approach (at 36): "In this particular case, whatever else there may have been, there was certainly no emergency. It was not a case where the house had been destroyed and the furniture exposed to thieves and the weather. This approach was reinforced by Lynskey J in Munro (298). There is no real evidence that there was any need for the defendant to dispose of the car. He may have found it a nuisance - to some extent a nuisance - but that is not an emergency compelling him to dispose of it.The classic examples of compelling immediacy are the decay of soft goods (Springer v. Great Western Railway [1921] 1 K Western Railway [1921] 1 K.B. 257); the disposal of rotting oranges (Freeman & Co. v. Macandrews & Co Ltd (unreported) KBD 1929); the cost of boarding a horse which could not be delivered through no fault of the company (Great Northern Railway Co v. Swaffield (1874) LR 9 Exch 132); and the services of the veterinary surgeon to an injured dog (Palmer v. Stear (1963) 113 L.J. 420). Other situations must require rapid intervention, such as effective traffic management (White v. Troups Transport [1976] C.L.Y. 33)..