Court of Appeal
Citations: (1889) 14 PD 64.
The defendants were wharfingers. They agreed to let the claimant land and store their ship’s cargo at their jetty on the Thames. In return, the claimant would pay a fee. The defendants did not have any right to the river bed adjoining the jetty, and had not assessed whether it was safe for the vessel to berth there. The river bed was uneven, and this caused damage to the claimant’s vessel at low tide.
- Was there an implied term in the contract as to the safety of the river bed?
The Court of Appeal held in favour of the claimant. The claimant could not have used the jetty in the manner which the contract envisaged without the boat resting on the river bed. Therefore, the defendants must have implicitly represented that they had taken reasonable care to ensure that the condition of the river bed would not damage the vessel.
This Case is Authority For…
Bowen LJ explained the test for implying terms in fact:
‘The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side…the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have.
In business transactions…the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.’
Lord Esher noted that ‘honest business could not be carried on between [the parties]…unless the [defendants] had impliedly undertaken some duty towards the [claimant] with regard to the bottom of the river at this place.’
Nevertheless, the court sought to only imply the least onerous duty which would satisfy the business needs of the parties. Since the defendants had no control over the river bed, their duty could not be to make it safe. Their duty was merely to check whether or not it was safe.