Cases and Materials on the Carriage of Goods by Sea by Anthony Rogers & Jason Chuah & Martin Dockray

Author:Anthony Rogers & Jason Chuah & Martin Dockray [Rogers, Anthony]
Language: eng
Format: azw3
ISBN: 9781317610090
Publisher: Taylor and Francis
Published: 2016-02-11T16:00:00+00:00

26. Similar assistance is at hand nearer at home. In Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd [2001] CLC 1103, 1118–1119; [2011] EWCA Civ 1047; [2001] 2 All ER (Comm) 299, Mance LJ said:

‘13. Construction, as Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396 at p 1400 is thus “a composite exercise, neither uncompromisingly literal nor unswervingly purposive”. To para (5), one may add as a coda words of Lord Bridge in Mitsui Construction Co Ltd v A-G of Hong Kong (1986) 33 BLR 14, cited in my judgment in Sinochem International Oil (London) Ltd v Mobil Sales and Supply Corp [2000] CLC 878 at p 885. Speaking of a poorly drafted and ambiguous contract, Lord Bridge said that poor drafting itself provides: “no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made. But the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contracted for on a sensible and businesslike basis.”… 16… in my judgment the subclause has no very natural meaning and is, at the least, open to two possible meanings or interpretations – one the judge’s, the other that it addresses two separate subject-matters. In these circumstances, it is especially important to undertake the exercise on which the judge declined to embark, that is to consider the implications of each interpretation. In my opinion, a court when construing any document should always have an eye to the consequences of a particular construction, even if they often only serve as a check on an obvious meaning or a restraint upon adoption of a conceivable but unbusinesslike meaning. In intermediate situations, as Professor Guest wisely observes in Chitty on Contracts (28th edn) vol 1, para. 12–049, a “balance has to be struck” through the exercise of sound judicial discretion.’

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