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In rejecting these arguments, the Court found that what was required in order for there to have been an effective disclaimer of liability was reasonable notice of that disclaimer. That in turn depends on the consideration of related issues. First, are the relevant provisions particularly onerous or unusual and secondly did Marex have sufficient notice of those provisions. As the judge noted, these are interrelated issues because the more outlandish a particular clause is, the greater degree of notice required. In this context, the judge found that the terms in question were neither onerous nor unusual and that, Access World having (amongst other things) issued thousands of warrants to Marex over the course of 10 years, each of which expressly referred to its terms and conditions, and Access World having also issued invoices to Marex containing a similar reference, and reference to its terms and conditions appearing on every email sent by Access World, sufficient notice had been given.


With regard to the argument that the terms and conditions did not apply to gratuitous services as opposed to contractual ones, the Judge held that the reasonable person in the position of Marex would have understood that the terms and conditions, on their wording, applied to extracontractual services such as the authentication services provided by Access World.


Finally, having weighed up all the relevant factors, including the fact that Marex was a commercially sophisticated LME broker with access to legal advice, the judge had little hesitation in finding that the limitation provisions in Access World’s terms and conditions were reasonable. In fact, the provision reflected similar clauses in the industry, which the judge considered were appropriate in circumstances where the warehouse keeper generally has no knowledge of the commercial considerations and risks that are in play, in contradistinction to the customer who can assess those risks and take other steps to ameliorate risks that it faces. Interestingly, the judge also found that the inclusion of a limitation clause is an integral part of the very assumption of responsibility which Access World was prepared to undertake and that any intervention by the Court would be to disrupt the equilibrium of the very circumstances in which an assumption of responsibility arose, which, he said, the Court should be extremely reluctant to do.


The judgment is of particular interest not only to the global warehousing industry, but also to those in any sector which regularly rely upon limits of liability in their dealings with their customers and suppliers, including freight forwarders, carriers and customs brokers, who trade on their own bespoke trading conditions or industry standard terms such as BIFA or RHA.


Adrian Marsh and Iain Kennedy, together with Robert Thomas QC and Nicola Allsop of Quadrant Chambers, represented Access World Logistics.


Adrian Marsh T: +44(0)161 817 7217


TURNING TO THE CASE IN NEGLIGENCE, THE COURT FOUND THAT ACCESS WORLD OWED MAREX, BUT NOT NATIXIS, A DUTY OF CARE IN AUTHENTICATING THE RECEIPTS AND THAT IT HAD NOT


EXERCISED REASONABLE SKILL AND CARE IN ITS AUTHENTICATION OF THE RECEIPTS PRESENTED TO IT FOR THIS PURPOSE, WHICH RELATED TO THE PC4 TO PC5 TRANSACTIONS ONLY.


21 | ADMISI - The Ghost In The Machine | November/December 2019


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