The High Court has held that a clause in a stevedoring contract which excluded the liability of the defendant stevedores (D) for indirect or consequential loss "including without limitation ... the liabilities of the Customer to any other party" did not prevent the customer (C), whose chief officer was killed by the negligence of D's subcontractors, from recovering from D an indemnity for sums which C had been obliged to pay to the officer's next of kin. The court held that it was well established that the term "indirect and consequential" loss referred to loss which was not the direct and natural result of the breach of contract. Here, the losses claimed were not indirect or consequential, and where an exclusion clause referred to "indirect and consequential" loss, "very clear words indeed" would be required to indicate an intention to exclude losses falling outside that established meaning. The words "including without limitation" were not sufficiently clear to extend the exclusion of liability to the losses claimed. Rather, those words were intended to identify types of loss which might fall within the scope of the clause, but only if they were also indirect or consequential.
Case: Ferryways NV v Associated British Ports [2008] EWHC 225 (Comm), 14 February 2008.
