This is an appeal from the decision of Teare J (see CMI580) that the meaning of 'act' in the phrase 'act or neglect' in cl 8(d) of the Inter-Club Agreement 1996 (ICA) should bear its ordinary and natural meaning of any act without regard to questions of fault.

Held: Appeal dismissed.

Longmore LJ: In the end neither counsel placed much reliance on other cases construing the words 'act or neglect'. They were right not to do so, since everything must depend on the context.

It is true that in Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLR 173 Burnton J construed the words 'act or neglect', as they appeared in a particular proviso in an indemnity given by the contractor to the employer in an engineering contract for the construction of piping subject to the ICE Conditions of Contract, as meaning an act which constituted a breach of contract or of a tortious duty. But as Burnton J said (para 94) the meaning must depend on the terms of the contract and cannot apply to deprive an employer of its indemnity as a result of his failure to do what it is the responsibility of the contractor to do. No such suggestion can be made in the present case.

Conversely the words 'act, fault or neglect of the shipper' in art 4.3 of the Hague and the Hague-Visby Rules have been held by HHJ Diamond in The Fiona [1993] 1 Lloyds Rep 257 to encompass a non-negligent act and that decision was expressly approved by this Court in The Giannis NK [1996] 1 Lloyds Rep 577, a point which arose neither at first instance [1994] 2 Lloyds Rep 171 nor in the House of Lords [1998] AC 605. In one sense that is closer to the area covered by the present case but the phrase fell to be construed in an exceptions clause and in a context rather different from the ICA.

It is perhaps worth adding that such limited authority as there is on the construction of the words 'act or omission of the shipper' in art 4.2.i of the Hague-Visby Rules does not suggest that the relevant 'act' has to be culpable before the shipowner can rely on it: see Ismail v Polish Ocean Lines [1976] QB 893, 903A (Lord Denning MR).