In litigation both the layman and the lawyer merit pity. The former feels frustrated because no one understands his view, while the latter considers that his lot would be easier if the client realised that just causes alone do not necessarily win cases.

“The parties before the Court are wholly answerable for the conduct of their own cases. Litigation is a game in which the Court is umpire”.1 It may be a sport for Counsel but it is not so for the client, as two unfortunate foreign companies now realise when, before the obvious was accepted, a demurrage claim for only £7,800 went to the House of Lords via arbitration, High Court and the Court of Appeal.2

These hours of learned argument might suggest the existence of some new complex legal principle, but no, this argument exists for over 100 years. It was only the maritime version of the nursery riddle (when is a door not a door? — when its ajar!) When is an arrived ship not an arrived ship? — when, since 1966, its yellow (Aello)!

Unfortunately the law merchant, based on the customs of merchants and seafarers, was swallowed by the common law (but not digested) in the 17th century following the downfall of the Court of Admiralty, and put into precedent’s straightjacket. Not to disturb a long existing, but bad, precedent to have predictability of law is reasoning baffling to laymen, as acceptable decisions should be logical. Bad precedents beget litigation, as, despite Mr. Weller, Sr., none will consider the law so “bête” as continually to apply a rule manifestly wrong.

Moreover, superior Courts may “embellish” acceptable precedents and so destroy them — those fateful words “non-natural use” added by Lord Cairns to Blackburn’s, J., famous judgment,3 so that today where an exploding gas main damages a house the owner learns surprisingly that he has no remedy, as placing gas mains under roads is not a “non-natural use” of land!

In 1879 Brett, L. J., said of “arrived ships”:— “If a larger port is named the usual place in it at which loading ships lie”.4 This clear concise statement