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Andrew Dinsmore acts in first case to apply the Freight Rule to airfreight

On 6 October 2017, Andrew successfully represented the Claimants in Schenker Ltd v Negocios Europa Ltd in which Moulder J accepted the submission that the common law rule barring set-off against freight (the “Freight Rule”) applied to airfreight and this is the first English authority to do so.

During the course of judgment, the Court noted that the Freight Rule is well-established in shipping and has been extended to international road haulage, domestic road haulage and freight forwarders. Further, the Court was persuaded by the citation of two Hong Kong authorities which have extended the Freight Rule to airfreight: Emery Air Freight Corporation v Equus Tricots Limited [1989] 2 HKLR 554 and RAF Forwarding (HK) Ltd v Wong Angela t/a JMT Company [1999] 2 HKC 135. Finally, the Court was persuaded by the expert evidence of a freight liability insurance broker that the applicability of the Freight Rule to airfreight formed the basis of thousands of carriage and insurance contracts such that the Court should be reluctant to interfere.

This is a significant ruling which makes clear that the Freight Rule applies to land, sea and air. Whilst there is dicta that the Freight Rule is controversial (May J in United Carriers Ltd v Heritage Food Group (UK) Ltd. [1996] 1 WLR 371), this ruling has now secured its continuing operation at common law to the main forms of transport such that future Courts are likely to take the view that only Parliament should interfere (as per Lord Salmon in Aries Tanker Corporation v Total Transport (The Aries) [1977] 1 Lloyd’s Rep. 334, 341-2).

This case was reported on Lawtel's Daily Digest.

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11/10/2017
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