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Original Message -----
From: Robert Stevens
Date: Friday, September 8, 2006 3:17 pm
Subject: Re: ODG: The MAHKUTAI
The
traditional explanation for The Eurymedon is difficult
to accept for a number of reasons. For example the stevedore when
unloading the ship may not know of the offer they are supposed to
be accepting.
By
far the best explanation was given by Barwick CJ in the HC of A
in The New York Star [1979] 1 Lloyd’s Rep 298 at
pp. 304-305, which was subsequently adopted by the House of Lords
in The Starsin [2003] UKHL 12, [2003] 2 W.L.R. 711 per
Lord Hoffmann at para 93, Lord Hobhouse at paras 149-153, Lord Millett
at para 196. (Hobhouse is the best, as usual in such cases.)
The
contract was unilateral, not bilateral, as at no stage were the
stevedores obliged to the owners to unload the goods.
However,
unlike the usual unilateral contract, acceptance did not consist
of performance. Rather, the contract was agreed between the shipper
and the stevedores through the agency of the carrier when the shipper
accepted the bill of lading. (As to how the consignee became bound
by the contract see Treitel and Reynolds, Carver on Bills of
Lading (2001) at para. 7-086) To this extent, the agreement
resembled the usual bilateral contract and this must have been what
Lord Goff meant. Consideration was subsequently provided by the
stevedores’ unloading of the ship, not by any promise to unload
at the time of agreement. Only at this stage did a binding contract
come into existence. This analysis avoids the artificialities which
are normally associated with this case. (Although it must be confessed
that the analysis is complex even if no fictions are invoked).
The
thing to grasp is that offer/acceptance and consideration do not
occur at the same time.
