In this case the Court of Appeal looked at whether the Hague-Visby Rules can exempt a carrier from liability to the cargo owner for damage caused deliberately or barratrously by a member of the crew. 

The English High Court judgement of 16 November 2018 in Clancy Docwra v. E.ON Energy Solutions considers the interaction between a contract’s scope of work and its allocation of risk. This dispute arose from the tension between an employer seeking to make a sub-contract all-risk and goal-oriented, and the sub-contractor seeking to reduce the scope of work to specific items, in order to exclude unpredictable work that had been a requirement of the Invitation to Tender.

This concerned an entire agreement clause and its ability to limit liability for misrepresentation.  Disagreement between the judge at first instance and the High Court judge shows that care needs to be taken to either include or exclude claims for misrepresentations from an entire agreement clause.

This is a case with an unexpected twist. A charterer could not rely on force majeure to excuse its failure to supply cargo and was liable in breach. However, the same force majeure clause and event allowed it to escape substantial damages.

This concerned the apportionment of risk between a contractor and employer where delays were caused by both the contractor and the employer, concurrently. The court upheld the express terms of the contract under which the contractor assumed 100% of the risk of such delays.

The decision shows just how much a clause containing a purposive goal can cost a contractor and protect the contractor's employer, even where the contractor follows the specifications set out in the contract.

The 21 December 2017 English High Court case of Holyoake v. Candy contains a useful analysis of the basic concepts regarding the rule against penalties, and a reminder that care needs to be taken in drafting provisions that risk being viewed as penalties.

A refresher on “time is of the essence” provisions.