QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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Micro Anvika Ltd. & Others |
Claimant |
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- and - |
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TNT Express Worldwide (Euro Hub) NV and Others |
Defendant |
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Mr Charles Priday (instructed by Waltons & Morse) for Ninatrans
Mr Nigel Jacobs (instructed by Hill, Taylor & Dickinson) for TNT
Hearing dates: 6 and 7 February 2006
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Crown Copyright ©
The Hon Mr Justice Morison :
Introduction
The Law
"The carrier shall not be entitled to avail himself of the provisions of this chapter which limit his liability if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct."
"1. The starting point when considering whether in any given circumstances the acts or omissions of a person entrusted with goods of another amounted to wilful misconduct is an enquiry about the conduct ordinarily to be expected in the particular circumstances.2. The next step is to ask whether the acts or omissions of the defendant were so far outside the range of such conduct as to be properly regarded as "misconduct". (An important circumstance would be a deliberate disregard of express instructions clearly given and understood.)
3. It is next necessary to consider whether the misconduct was wilful.
4. What does not amount to wilful misconduct? Wilful misconduct is far beyond negligence, even gross or culpable negligence.
5. What does amount to wilful misconduct? A person wilfully misconducts himself if he knows and appreciates that it is misconduct on his part in the circumstances to do or to fail or omit to do something and yet (a) intentionally does or fails or omits to do it or (b) persists in the act, failure or omission regardless of the consequences or (c) acts with reckless carelessness, not caring what the results of his carelessness may be. (A person acts with reckless carelessness if, aware of a risk that goods in his care may be lost or damaged, he deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.)
6. The final step is to consider whether the wilful misconduct (if established) caused the loss of or damage to the goods."
"Wilful misconduct in such a special condition means misconduct to which the will is a party as contradistinguished from accident and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persist in the act, failure or omission regardless of the consequences." Per Johnson J. in Graham v Belfast and Northern Counties Railway [1901] 2.I.R. 13, which was cited with approval by Lord Alverstone in Forder v GWR [1905] 2 KB 532, who added "or acts with reckless carelessness, not caring what the results of his carelessness may be."
"Wilful misconduct, to put it most shortly, as it has often been put in the past, is misconduct to which the will is a party, and it is something which is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. I think the first thing for you to remember is that the will must be party to the misconduct, and not merely a party to the conduct of which complaint is made. Let us take an example: if the pilot of an aircraft knowingly does something which subsequently a jury find amounted to misconduct, those facts alone do not show that he is guilty of wilful misconduct. To establish wilful misconduct on the part of this imaginary pilot it must be shown not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that when he did it he was aware that it was a wrongful act that is to say, he was aware that he was committing misconduct."per Barry J. in Horabin v BOAC [1952] 2 Lloyd's Law Reports 450 at page 459.
"If I summarise the principle in my own words, it would be to say that for wilful misconduct to be proved there must be either (one) an intention to do something which the actor knows to be wrong or (two) a reckless act in the sense that the actor is aware that loss may result from his act and yet does not care whether loss will result or not or, to use Mr Justice Barry's words in Horabin's case, 'he took a risk which he knew he ought not to take' per Longmore J. in National Semiconductors v UPS [1996] 2 Lloyd's Reports 212 at 214."Further, a person could be said to act with reckless carelessness towards goods in his care if, aware of a risk that they may be lost or damaged, he nonetheless deliberately goes ahead and takes the risk when it is unreasonable in all the circumstances for him to do so." per Beldam LJ. in Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] 2 Lloyd's Reports 369, at page 374.
The claimants must show:
(1) Misconduct on the part of Mr Branson;
(2) That he was aware of a risk that the cargo might be stolen, but deliberately and unreasonably went ahead and took that risk;
(3) That that misconduct caused the loss of the cargo.
The facts
These are my findings of fact:
"Towards the end of the off-loading process, the driver accompanied [a crook] to [Queen's Square] and on his arrival there, he noted the loading of the products into a white van. He told [the crook] that he urgently needed a toilet, and walked into the reception of the adjacent hospital. It is believed that [the crook] followed him into the premises, and that CCTV evidence exists of this.On returning to [Queen's Square], he was advised that there was not enough room on the vehicle being loaded, and that another was to follow to the scene to assist. It is unclear whether he immediately returned to his vehicle, or followed shortly afterwards, but following a lengthy delay and no other vehicle turning up, he returned to Queen's Square to find a number of boxes at the scene, the pallets against nearby railings and none of the suspects in sight."
Conclusions
"Mr Royo (the driver) showed Mr O'Kerwin [the agent's import manager] the CMR documentation and, as the principal delivery was the consignment of 269 cartons of shoes for Laceys in Hackney Road, Mr O'Kerwin contacted Bowler [the carriers] so that he could give instructions to Mr Royo. Mr O'Kerwin was told expressly by Bowler that Lacey's consignment was not to be off-loaded anywhere but 263-265 Hackney Road E2. These express instructions were then given to Mr Royo, both by Mr O'Kerwin and by a Spanish-speaking employee of CIT, Ms Anna Garcia Mr O'Kerwin said that he and Ms Anna Garcia both told Mr Royo that the delivery to Laceys was very urgent and that under no circumstances was he to permit off loading of the goods anywhere other than 263-265 Hackney Road E2. There is no doubt that Mr Royo was given the plaintiff's address and the Judge accepted that the instruction was given to him in Spanish and he acknowledged that he understood it."
"According to Mr O'Kerwin, Mr Royo told him that he had been to Laceys' premises and that Laceys were not ready to take delivery of the goods. He told Mr Royo to tell Laceys that they must accept the goods or else it would not be possible to redeliver until a much later date. Mr O'Kerwin told Mr Royo to go back to Laceys' premises and to telephone again in about half an hour." (page 372)
"The basis of the Judge's finding [of wilful misconduct] was that the clear instructions that the goods were to be delivered to the plaintiff's premises and nowhere else were passed on to Mr Royo." (p. 374)
"I attach considerable significance to the Judge's finding that Mr Royo had been given clear and express instructions which he had understood and that he had disobeyed them." (p. 375)
"In my judgment it was open to the Judge to draw the inference that by disobeying clear instructions and departing so far from the ordinary duty and responsibility of a driver to protect his load the actions of Mr Royo amounted to misconduct." (ibid)