Hong-Kong and Whampoa Dock Co., Ltd v. The Netherton Shipping Co., Ltd [1908] ScotLR 35 (03 November 1908)

Hong-Kong and Whampoa Dock Co., Ltd v. The Netherton Shipping Co., Ltd [1908] ScotLR 35 (03 November 1908)

The defenders' obligation to deliver the vessel at Hong-Kong was absolute; no supervening event rendered performance impossible; the alleged commercial impossibility was merely increased cost or a bad bargain, not a legal excuse; there was no relevant implied condition excusing performance; defences based on commercial impossibility or custom were irrelevant.

Citation
[1908] ScotLR 35
Parties
Pursuer: Hong-Kong and Whampoa Dock Company, Limited; Defender: The Netherton Shipping Company, Limited
Jurisdiction
Scotland
Judgment Date
03 November 1908
Procedural Posture
Civil / Inner House Appeal From Lord Ordinary's Interlocutor
Outcome
Defenders' pleas repelled except as to damages; proof allowed on damages only; interlocutor of Lord Ordinary adhered to; case remitted for assessment of damages.
Legal Topics
Breach of Contract, Implied Condition, Impossibility of Performance
Contract Breach of Contract Implied Condition Impossibility of Performance

Case Brief

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Parties

Hong-Kong and Whampoa Dock Company, Limited

Pursuer

The Netherton Shipping Company, Limited

Defender

Procedural Posture

Civil / Inner House Appeal From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the defender was excused from performance of a contract to deliver a vessel for repair due to commercial impossibility or supervening events
  2. 2 Whether there was an implied condition that performance was only required if commercially possible

Ratio Decidendi

The defenders' obligation to deliver the vessel at Hong-Kong was absolute; no supervening event rendered performance impossible; the alleged commercial impossibility was merely increased cost or a bad bargain, not a legal excuse; there was no relevant implied condition excusing performance; defences based on commercial impossibility or custom were irrelevant.

Court Disposition

Defenders' pleas repelled except as to damages; proof allowed on damages only; interlocutor of Lord Ordinary adhered to; case remitted for assessment of damages.

Orders

  • Defenders' pleas-in-law (except as to damages) repelled
  • Proof allowed restricted to quantum of damages