20/02/2018

Andrew Dinsmore appeared for successful Claimants in first English authority to apply common law rule barring set-off against freight to aviation

Andrew Dinsmore appeared for the successful Claimants in this case, which was the first English authority to apply the common law rule barring set-off against freight (the ‘Freight Rule’) to aviation. The Freight Rule was developed in the shipping context before being applied to international road haulage, domestic road haulage and then to freight forwarders. This case followed two Hong Kong authorities which had previously applied the Freight Rule to aviation: 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. Further, at paragraph 14 of the Judgment, Moulder J accepted that the rationale of the rule was to protect cash flow thereby clarifying that the Freight Rule was not simply an arbitrary rule of historical accident, as had been suggested in some previous authorities. This case is a significant development as it ensures that freight from road, sea and air are all treated equally.