The World of Maritime and Commercial Law: Essays in Honour of Francis Rose

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Professor Francis Rose stands at the forefront of maritime and commercial law scholarship. This collection of essays honours his outstanding contribution. Twenty prominent scholars, judges and practitioners expound and debate a wide variety of important issues and controversies in the areas of maritime collisions, marine insurance, carriage of goods by sea, private international law, contract law, sale of goods, unjust enrichment, and directors’ duties. Preface Contents List of Contributors Table of Cases Table of Legislation Table of Treaties and Conventions 1. The Empress of Ireland and Mont Blanc Collisions: Then and Now I. The Titanic and Limitation of Liability II. Empress of Ireland III. The 1917 Halifax Collision and Explosion90 IV. A Twenty-First Century Maritime Law Perspective on the Disasters 2. Do Actual Carriers Require Special Treatment? I. What is an Actual Carrier? II. A Special Regime for Actual Carriers under Conventions III. The English Law Position IV. Reasoning Behind a Special Regime for Actual Carriers V. Possible Solutions VI. Does the Problem Require a New Approach? VII. Two Further Issues VIII. Conclusion 3. Multimodal Carriage of Goods by Sea: Time for an International Convention? I. Introduction II. Five Problems with Multimodal Carriage of Goods III. Solutions to the Problems IV. Conclusion 4. The Three Ages of Utmost Good Faith I. Introduction II. The First Age: The Age of Common Law III. The Second Age: The Marine Insurance Act 1906 IV. The Third Age: The Insurance Act 2015 V. Conclusion 5. English Jurisdiction Clauses in Marine Cargo Insurance and Direct Actions against Cargo Liability Insurers I. Introduction II. Party Autonomy III. Direct Action IV. The Global Position V. The European Position VI. The English Common Law VII. Conclusion 6. Choice of Law in Determining the Ownership of Ships I. Introduction II. The Law of the Underlying Transaction III. The Law of the Flag IV. The Law of the Ship's Actual Situs V. Ship Arrest - Lex Fori VI. Conclusion 7. Private International Law and the Privy Council I. Introduction II. The Effect of Statutes III. Developing the Common Law IV. The Limits of the Common Law, and Cambridge Gas V. The Derivation of Rules from Statutes VI. The Other Side of the Coin: Trusts and Trustees VII. Common Laws, Private International Laws and the Privy Council 8. Bulk Goods and Title Transfer I. Introduction II. The Seller in Possession III. Bulk Goods and Oversales IV. Conclusion 9. The Duty to Take Delivery of Goods I. Introduction II. Is there a Free-Standing Take-up Duty to Accept Delivery? III. The Legal Basis of a Take-up Duty IV. A Take-up Duty: Fault-Based or Strict? V. The Take-up Duty: Its Application to Specific Cases VI. Effect of Breach of the Take-up Duty VII. Conclusion 10. The Vanishing Scope of the Sale of Goods Act 1979 in the Twenty-first Century I. Introduction II. Some Brief Historical Comments III. The Sale of Goods Act 1979 IV. 'Transfer the Property' V. 'Goods' VI. Money Consideration VII. What is Left for the Sale of Goods Act 1979? VIII. Does it Matter? IX. Conclusion 11. Are there Any General Principles of Commercial Law? I. Introduction II. Is there Such a Thing as 'Commercial Law'
? III. Modifying Private Law Dogmas IV. The Leading Advocate of General Principles of Commercial Law V. Freedom of Contract versus Sanctity of Contract VI. The Limits of Party Autonomy VII. Party Autonomy, Certainty and Good Faith VIII. Facilitation, Intangible Assets and Cryptoassets IX. A Conclusion of Sorts 12. Mercantile Usage, Construction of Contracts and the Implication of Terms, 1750–1850 I. Introduction II. Commercial Drafting Practices and Mercantile Usage III. Construction of Contracts IV. Implication of Terms V. Concluding Remarks 13. 'The Obscure, the Implied and the Illegal': English and French Approaches to the Interpretation of Written Contracts, Implication of Terms and Contracts Affected by Illegality I. Introduction II. Interpretation of Written Contracts III. Implication of Terms IV. Illegality V. Conclusions 14. The Interpretation of Written Contracts I. Interpretation as Initially a Type of Translation II. Relaxation of the Translation Approach Subject to an Ambiguity Constraint III. Relaxation of the Ambiguity Constraint IV. 'The Intention of the Parties' as the Underlying Interpretative Principle V. 'Intention of the Parties' and Ambiguity VI. 'Intention of the Parties' and Rectification VII. 'Intention of the Parties' and Implication of Terms VIII. Conclusion 15. The Boilerplate and the Bespoke: Should Differences in the Quality of Consent Influence the Construction and Application of Commercial Contracts? I. Introduction II. Boilerplate – A Short History III. Incorporation IV. Contractual Interpretation V. Integration: Entire Agreement Clauses VI. Variation VII. Agreement as Evidence VIII. Conclusion 16. Illegality: Pleading, Proof, and Presumptions I. Introduction II. The Bowmakers Rule III. What Sort of Rule is the Bowmakers Rule? IV. The Gascoigne/Chettiar Rule V. What Sort of Rule is the Gascoigne/Chettiar Rule? VI. The Gascoigne Authorities VII. The False Assimilation of the Two Rules in Tinsley v Milligan VIII. The Gascoigne/Chettiar and Bowmakers Rules Distinguished IX. Conclusion 17. Negotiating Damages I. Introduction II. Morris-Garner v One Step (Support) Ltd III. The Purpose of Negotiating Damages IV. The Availability of Negotiating Damages V. Conclusion 18. The Myth of Common Law Tracing I. Introduction II. Leading Cases III. The Basics of Tracing IV. Early Common Law Tracing Approaches V. The Modern Common Law Authority: FC Jones VI. Reasons against Adopting the Same Tracing Rules at Common Law and in Equity VII. Conclusion 19. Contextual and Conceptual Foundations of Private Law Claims Involving Cryptocurrencies I. Introduction II. A Brief Introduction to Cryptocurrencies III. Contextual Challenges IV. Conceptual Foundations V. Conclusion 20. Silence and Solidarity? The Duties of Individual Directors Minded to Speak Out about their Board's Decision-making and Governance I. Introduction II. Some High-Level Observations III. The Two Cases to be Studied IV. Stobart Group Ltd v Tinkler V. National Roads and Motorists'
Association Ltd v Geeson VI. Returning to the Substantive Issues and Seeking Answers VII. Conclusions