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Those are the only terms of which the successive carrier was necessarily aware or to which he can be said to have consented. Ratio |
That leaves only the argument that when Essers and Kazemier acceded to the contract of carriage by accepting the goods and the consignment note from Exel, they did so through a branch or agency, namely Exel, which was located in England. Ratio |
This is, to my mind, an impossible argument. Ratio |
As the context shows, the branch or agency referred to in sub-paragraph (a) of article 31.1 is relevant as one of a number of indicia of the defendants presence in the jurisdiction in which the claimant wishes to sue. Ratio |
It means a branch or agency of the relevant defendant (Essers or Kazemier). Ratio |
The conditions are, first, that it should be located in the jurisdiction (England) where the claimant wishes to sue and, secondly, that the contract of carriage should have been made through it. Ratio |
It is not suggested that Essers or Kazemier has a branch or agency in England. Ratio |
Even if they did, they did not accede to the contract of carriage through that branch or agency but by accepting the goods and the consignment note in Switzerland and Hungary respectively. Ratio |
The fact that the place at which a successive carrier accedes to the contract under article 34 will necessarily be the place of consignment, which is already a relevant jurisdiction by virtue of sub-paragraph (b), indicates that paragraph (a) is in fact referring to the branch or agency through which the contract of ca... |
It is not referring to the branch or agency (if any) through which a successive carrier acceded to it. Ratio |
The final words of article 36 ( an action may be brought at the same time against several of these carriers) authorise proceedings at the same time against any or all carriers who are liable under the Convention. Ratio |
The effect of these words is simply that there is no prescribed order in which cargo interests must have recourse to the various parties made concurrently liable. Ratio |
The draftsman has no doubt assumed that proceedings will be brought in a court which has jurisdiction, but the article is not concerned with jurisdiction. Ratio |
It certainly does not confer jurisdiction if it does not otherwise exist. Ratio |
This analysis is supported by articles 37-39, which deal with claims for indemnity by a carrier who has paid compensation to cargo interests, against the carrier or carriers actually responsible (or deemed to be responsible). Ratio |
Claims for an indemnity may be brought by the carrier who has paid against the carriers concerned (ie the carriers responsible or deemed to be responsible for the loss) in a jurisdiction where any one of them is present: see article 39.2. Ratio |
Two points may be made about this. Ratio |
First, it applies only to actions among carriers. Ratio |
There is no equivalent provision available to found jurisdiction for claims brought by cargo interests under cases (i) or (ii). Ratio |
Secondly, the technique used by the Convention for avoiding inconsistent findings in actions by cargo interests and subsequent actions by carriers among themselves is not to provide for them to be litigated in the same proceedings. Ratio |
It is to provide for the validity of the payment of damages previously made to cargo interests to be incapable of challenge in subsequent proceedings for an indemnity, provided that the amount was determined by judicial authority after the [carrier against whom indemnity is claimed] had been given due notice of the pro... |
At the conclusion of the argument in this appeal I was persuaded that this appeal should be dismissed for the reasons given by Sir Bernard Rix in the Court of Appeal. Ratio |
I remained of that view until I received a copy of the draft judgment of Lord Mance. Ratio |
I am now entirely persuaded by his reasoning that Cooke J was correct at first instance and that this appeal should be allowed and his order restored. Ratio |
Since then I have read in draft the judgment of Lord Sumption giving his reasons for agreeing with Lord Mance. Ratio |
In all the circumstances, for the reasons which they give I would allow the appeal. RPC |
I do so with some misgivings because I agree with Lord Sumption that the commercial logic of articles 34 and 36 points towards the recognition of a jurisdiction to receive claims against all three carriers in one set of proceedings. RPC |
However, I agree with him that Lord Mances analysis has shown that the language of the CMR points clearly in the other direction. RPC |
At the conclusion of the argument in this appeal I was persuaded that this appeal should be dismissed for the reasons given by Sir Bernard Rix in the Court of Appeal. RPC |
I remained of that view until I received a copy of the draft judgment of Lord Mance. RPC |
I am now entirely persuaded by his reasoning that Cooke J was correct at first instance and that this appeal should be allowed and his order restored. RPC |
Since then I have read in draft the judgment of Lord Sumption giving his reasons for agreeing with Lord Mance. RPC |
In all the circumstances, for the reasons which they give I would allow the appeal. RPC |
I do so with some misgivings because I agree with Lord Sumption that the commercial logic of articles 34 and 36 points towards the recognition of a jurisdiction to receive claims against all three carriers in one set of proceedings. RPC |
However, I agree with him that Lord Mances analysis has shown that the language of the CMR points clearly in the other direction. RPC |
William Leonard McMullan, known as Lenny McMullan, and Denise Brewster lived together for some ten years before December 2009. FAC |
On Christmas Eve that year, they became engaged. FAC |
Sadly, Lenny McMullan died two days later. FAC |
His death was sudden and unexpected; he was only 43 years old. FAC |
He was found dead in the home that he shared with Ms Brewster in Lilac Avenue, Coleraine, County Londonderry. FAC |
The couple had bought the house together in April 2005. FAC |
Mr McMullan died intestate. FAC |
He had no children. FAC |
At the time of his death, Mr McMullan was employed by Translink, the company which provides Northern Irelands public transport services. FAC |
He had worked for that company for approximately 15 years. FAC |
Throughout that time Mr McMullan was a member of and paid into the Local Government Pension Scheme Northern Ireland (the scheme). FAC |
The first respondent, the Northern Ireland Local Government Officers Superannuation Committee (NILGOSC), is the statutory body responsible for administering the scheme. FAC |
When Mr McMullan died, NILGOSC administered the scheme pursuant to the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (SI 2009/32) (the 2009 regulations). FAC |
The second respondent, the Department of the Environment for Northern Ireland (DENI), made and was responsible for the 2009 regulations. FAC |
Among other things, the 2009 regulations provide for the payment of retirement pensions to members of the scheme and for the payment of pensions and other benefits to certain survivors of members. FAC |
In April 2009, on the coming into force of the 2009 regulations, a cohabiting surviving partner became eligible for the first time, for payment of a survivors pension. FAC |
But, in order to qualify for payment of the pension, a cohabiting surviving partner had to be nominated by the member. FAC |
Ms Brewster believes that Mr McMullan had completed a form in which he nominated her. FAC |
NILGOSC says, however, that it did not receive the form and has refused to pay her a survivors pension. FAC |
The appeal has proceeded on the basis that the nomination was not made. FAC |
Ms Brewster applied for judicial review of NILGOSCs decision not to award her a survivors pension, arguing that the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivors pension under the 2009 regulations constitutes unlawful discrimination contrary to article 14... |
In a judgment delivered on 9 November 2012, (neutral citation [2012] NIQB 85) Treacy J held that the nomination requirement was an instrument of disentitlement (para 59) in relation to unmarried partners and that whilst the impugned regulations pursued a legitimate aim, there was not a reasonable relationship of propor... |
He therefore made an order declaring that the requirement of nomination of a cohabiting partner in the 2009 scheme was not compatible with article 14 ECHR read together with A1P1. RLC |
He quashed the decision of NILGOSC dated 1 July 2011 by which it had declined to pay the appellant a survivors pension. RLC |
NILGOSC and DENI appealed. RLC |
On 1 October 2013, by a majority, Girvan LJ dissenting, the Court of Appeal (Higgins, Girvan and Coghlin LJJ, neutral citation [2013] NICA 54) allowed the appeal. RLC |
Higgins LJ found that the nomination requirement was not unjustified or disproportionate; and Coghlin LJ also concluded that the requirement had not been shown to be manifestly without reasonable justification. RLC |
Survivor benefit schemes for unmarried partners of public service employees FAC |
In December 1998, the government in Westminster published a Green Paper on pension reform. FAC |
It was entitled A new contract for welfare: partnership in pensions. FAC |
The Green Paper stated that occupational pension schemes were one of the great welfare success stories of this country (para 1, p 65). FAC |
It was observed that, [m]ost large occupational pension schemes in the private sector now provide survivors benefits for the unmarried partners of the opposite sex of scheme members, although in the overwhelming majority of cases this is at the discretion of the trustees (para 59, p 76). FAC |
At the time of the publication of the Green Paper, in contrast to private sector schemes, public service schemes only provided survivors pensions to the spouse of a deceased member (para 60, p 76). FAC |
The first public sector scheme to introduce survivors pensions for unmarried partners was the Civil Service Pension Scheme in 2002. FAC |
It included a requirement to jointly [make] and [sign] a declaration in a form prescribed by the Minister. FAC |
No evidence has been proffered as to why the requirement for such a declaration was included. FAC |
In October 2004 a consultation exercise was conducted into the operation of the England and Wales Local Government Pension Scheme: Facing the Future - Principles and propositions for an affordable and sustainable Local Government Pension Scheme in England and Wales. FAC |
This was carried out through the Office of the Deputy Prime Minister. FAC |
It was proposed that survivors benefits be extended generally to cohabiting partners, provided that members of individual schemes wanted this and were prepared to meet the extra cost involved. FAC |
The consultation paper suggested that certain considerations arose because of the different situations of, on the one hand, married or civil partners and, on the other, cohabiting unmarried couples but the only consideration referred to in the paper itself was the nature of proof required in the latter case to establis... |
Outlining the types of evidence that would be required to verify the authenticity of the relationship, the paper adumbrated a number of different requirements, including that there be a valid nomination of a partner with whom there would be no legal bar to marriage or civil registration - essentially an opt-in obligati... |
Once again, the consultation paper provided no explanation as to why it was thought that evidence of a valid nomination was needed in addition to objective evidence of the nature of the relationship. FAC |
Moreover, there was no consultation question inviting response to the proposed evidence requirements. FAC |
In June 2006 a further consultation paper was issued setting out four options, all of which proposed survivors pensions for cohabitants but none of which contained a nomination requirement: Where next? - Options for a new-look Local Government Pension Scheme in England and Wales. FAC |
The consultation paper stated, however, that the Law Commission was conducting a project on cohabitation and that a final report was expected by August 2007. FAC |
It was noted that the Law Commission was considering the case for allowing cohabiting couples to opt-in to a scheme imposing enforceable financial obligations in the event of their separation: paras 6.14-6.15. FAC |
The Law Commissions inquiry into and subsequent report on cohabitation was, of course, conducted on a much wider plane than consideration of survivors benefits for unmarried partners of public service employees. FAC |
The consultation paper published in advance of the commissions consideration ranged over all manner of financial protection for unmarried cohabiting couples: Cohabitation: The Financial Consequences of Relationship Breakdown (2006) (Consultation Paper No 179). FAC |
A key element of the discussion was whether an opt-in provision was required in order to anchor financial security for cohabiting partners. FAC |
In its consultation paper the commission adverted to the fact that opt-in schemes had been introduced in several European states and elsewhere but that the take-up for these schemes, even where open to both opposite-sex and same-sex couples, is generally low: para 5.45. FAC |
The reasons for that were discussed in the consultation paper. FAC |
It could be that one partner was unwilling to make the commitment or that the other, willing to make the commitment, was reluctant to raise it lest that jeopardise the relationship. FAC |
As the consultation paper pointed out at para 5.28, it might be considered too harsh to deny all legal protection to the economically weaker party in the event of separation. FAC |
Even if the failure to take that step were due to inertia, or a lack of proper appreciation of the legal significance of not taking that step, the harshness of the result in some cases could be regarded as a wholly disproportionate sanction for that inactivity. FAC |
The commissions provisional view was set out in paras 5.53 and 5.54 of the consultation paper: 5.53 In our view, a scheme that applied by default to eligible cohabitants, subject to a right to opt out, would create an appropriate balance between affording scope for party autonomy and securing fairer outcomes for indivi... |
It would mean that inactivity would not, as it currently does, leave the more vulnerable party unprotected at the point of separation: the scheme would apply by default in the absence of a valid opt-out agreement. FAC |
5.54 Many other jurisdictions have adopted this approach, following the trend set in 1984 by New South Wales, the first jurisdiction to create a statutory scheme for financial relief between cohabitants. FAC |
That pattern has been replicated across other jurisdictions, including the rest of Australia, most of the Canadian provinces, New Zealand, some parts of Spain, Sweden and, most recently, Scotland. FAC |
After extensive consultation, the Law Commissions final report was duly published on 3 July 2007 (Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307) (Cm 7182)) and, having observed that most consultees had agreed with the commissions provisional view, it firmly rejected an opt-in requir... |
The penalisation of cohabitants for their failure to subscribe to an opt-in scheme was discussed at para 2.88 of the report: research suggests that providing people with information about the law and what they should do to protect their legal position does not guarantee that they will take those steps, or even be able ... |
Indeed, while there was considerable support among respondents to the Living Together Campaign survey for opt-in regimes, the fact that so few of those individuals had taken action based on the information that they had obtained suggests that few would in practice register their relationship or be able to do so. FAC |
A major underpinning of the commissions preference for the opt-out scheme was the protection of the vulnerable partner in the relationship and this might be considered to have more direct relevance to separation of cohabiting partners, rather than the death of one of them. Ratio |
The latter situation was discussed in the commissions report at para 6.13 where it was stated: It is important not to equate separation and death. Ratio |
Many consultees felt, and we agree, that there is a qualitative difference between a relationship cut short by death and a relationship terminated by separation. Ratio |
On separation, there has ordinarily been a failure of commitment by at least one of the parties. Ratio |
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