Date: Mon, 11 Sep 2006 17:51:49 +0100

From: Robert Stevens

Subject: The MAHKUTAI

It cannot be a bilateral contract with consideration coming later since the offer and acceptance must state a valid consideration and the only two possibilities are promise and act. It cannot be a promise since everyone says that the stevedore/ship owner is not bound until they act.

True. So it is not a bilateral contract, as I said, as no promise to unload (or do anything else) is made by the stevedore to the shipper/consignee.

It cannot be a later consideration somehow saving a prior "inchoate" contract since the promise and consideration "must be at one instance, for else they will be nuda pacta" (Nichols v Raynbred).

No. This is your mistake. The dicta in Nichols v Raynbred concerns bilateral contracts, where the promise is in exchange for another contemporaneous promise. The problem of 'past consideration' also does not arise.

Again, The Eurymedon is an unusual example of a unilateral contract because the acceptance did not consist of the performance in exchange. Rather it took place at the earlier stage between shipper and carrier, with the latter acting as the stevedore's agent. Consideration was subsequently provided by the unloading of the ship. There is nothing doctrinally problematic about this.

So all that is left is the unilateral contract analysis of Lord Wilberforce or some form of actionable reliance / estoppel.

This doesn't work for many reasons, most cogently set out in the Law Commission's paper on The Contracts (Rights of Third Parties) Bill, as was.

In the unilateral contract analysis knowledge of the stevedore should not be a problem since as you mentioned the offer is made to the agent who shares knowledge with the principal.

No. This is to confuse two different rules of attribution. That X is authorised to carry out negotiations on my behalf does not mean that X's knowledge is attributable to me. In a case (such as The Eurymedon) where the agent's negotiations are not authorised in advance but are subsequently ratified by the stevedore after unloading, we would have to say that the carrier/agent's knowledge is retrospectively attributed to the stevedore.

The House of Lords in The Starsin are quite clear, and they were right to endorse the earlier approach of the High Court of Australia. If you don't like Hobhouse, try one of the others. They are all the same.

Robert Stevens
Barrister
University of Oxford

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