The Moorcock

판결 이유

사실관계

The defendants owned a wharf where the plaintiff's vessel was moored for unloading. At low tide the vessel settled on a ridge of hard ground and was damaged. There was no express warranty about the safety of the riverbed.

판결 요약

The Court of Appeal held that, although the contract for the use of the wharf and jetty contained no express warranty about the condition of the riverbed, a term should be implied that the wharfingers had taken reasonable care to ascertain whether the bed of the river adjoining the jetty was in such a condition that the vessel could safely lie there — or at least to warn the shipowner if it was not. Such a term was necessary to give the contract business efficacy: the whole object of mooring the vessel at the jetty was to unload her, which necessarily involved her taking the ground at low tide, and it could not have been the parties' intention that the shipowner should bear the entire risk of a hidden defect in the bed that only the wharfingers were in a position to guard against. Bowen LJ explained that the law implies such a term not to make a new contract for the parties, but to give effect to their presumed intention and the business efficacy both parties must have intended. Because the wharfingers had not taken reasonable care and the vessel was damaged when she settled on a hidden ridge, they were liable. The Moorcock is the foundational authority for the 'business efficacy' test for implied terms, which sits alongside the 'officious bystander' test.

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