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Date: Mon, 4 Aug 2008 07:16 From: Michael Furmston Subject: The Achilleas
It seems to me that those who think The Achilleas correct should tell us what the ratio of the House of Lords is. As I read the judgments there are 3 different views. In descending (or ascending) order of width:
Walker says that he agrees with Hope Hoffmann and Rodger which I should have thought impossible. I now think that the reason Brenda Hale did not dissent is that she had noticed this and wanted to open an argument in future cases that there was a majority for the views of Rodger. I share most of the doubts expressed by Michael Bridge and Andrew Burrows and add a few further thoughts. On some views much turns on the supposed views of those in the trade. Is this a finding of fact so that it would be open to another arbitrator to make a different finding or is this something of which there is the arbitral equivalent of judicial notice. It is certainly not clear to me what evidence was led to the arbitrators. Extensive research in watering holes near the Baltic Exchange suggests that there are other topics of conversation. It is said that if the charterers had asked lawyers they would have been told that they would not have to pay for this loss but these same lawyers would until recently have been telling them that they would not have to pay damages at all if the last voyage was legitimate. The situation is not unlike that of conveyancers who used to persuade themselves that there would be no damages for late completion where time was not of the essence until the House of Lords told them otherwise in Raineri v Miles [1981] AC 1050. Lord Dilhorne still thought so.
Michael
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