Afro Continental Nigeria Ltd v Meridian Shipping Company S.A. (Vrontados)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE O'CONNOR |
| Judgment Date | 07 April 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0407-7 |
| Docket Number | 82/0186 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 1982 |
[1982] EWCA Civ J0407-7
The Master Of The Rolls
(Lord Denning)
Lord Justice Ackner And
Lord Justice O'Connor
82/0186
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE PARKER)
Royal Courts of Justice.
MR. JONATHAN HIRST (instructed by Messrs. Clyde & Co.) appeared on behalf of the Appellant.
MR. GILES CALDIN (instructed by Messrs. Holman, Fenwick & Willan) appeared on behalf of the Respondent.
The "Vrontados" was owned by a Panamanian one-ship company called Meridian Shipping Company S.A. of Panama. She flew the Liberian flag. In August 1977 she was chartered out on a voyage charter. The owners' brokers were a company called Aegean 77 Shipping Co. Ltd. of 15 Bury Street, London, E.C.3. They received brokerage of 1.25 per cent on the freight earned. Under the voyage charter she was to proceed to Bangkok and load a cargo of bagged rice for carriage to one of a number of discharging ports.
In pursuance of that voyage charter she went to Bangkok and loaded 219,300 bags of rice for carriage to Lagos in Nigeria. The bills of lading were signed by the master and showed that they were consigned to order, notifying "Afro Continental (Nigeria) Ltd., Lagos". The bills of lading incorporated the terms of the charterparty. These said that English law was to apply. They also provided that the bills of lading should have effect subject to the provisions of any legislation relating to the carriage of goods and so forth, thus incorporating the Hague Rules.
The vessel carried the rice to Lagos. It was discharged there on the 20th January, 1978. It was said, however, that the cargo was seriously short and damaged by sea water and condensation. The cargo owners said that they suffered loss totalling $81,330. The cargo owners put this claim into the hands of Clyde & Co., solicitors in the City of London. The shipowners notified their P. & I. Club, The West of England Shipowners' Association.
Under Article III 6 of the Hague Rules: "…the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods".
The goods here were delivered on the 20th January, 1978. The one year of the Hague Rules expired on the 20th January, 1979. That one year was extended by agreement so as to enable suit to be commenced at any time before the 20th December, 1980. On the 19th December, 1979, well within time, the cargo owners issued a writ against the Meridian Shipping Company S.A. They looked up the address of the company in Lloyd's Register of Shipping List of Shipowners. They found that the address was given as c/o Aegean 77 Shipping Co. Ltd., 15 Bury Street, London, EC3 5AH. So they issued the writ for service within the jurisdiction describing the defendants as "Meridian Shipping Company S.A. of 15 Bury Street, London, EC3A 5AH".
At various times throughout 1980 Clyde & Co. for the cargo owners reminded the West of England Shipowners' Association of the claim. On every occasion the Shipowners' Association (the P. & I. Club) put them off by saying that their inquiries into the matter were still continuing. Finally (as the time-bar would come into effect on the 20th December, 1980) Clyde & Co. for the cargo owners on Tuesday, 2nd December, 1980 asked the P. & I. Club the position and received a reply of which this is a note:
"Have no proposals re settlement—hasn't considered file for some time.
"Will take instructions re Solicitors for service—agrees doesn't particularly want us to incur expense of service out".
Clydes felt they had to take steps to protect their position. So on that very day, 2nd December, 1980, they prepared for service out. They telexed to their correspondents in Panama and got this information:
"The directors and officers of Meridian Shipping Co. S.A. are the following:
Pantelis George Margaronis, Director President, Isidores George Margaronis, Director Secretary Treasurer, Jakeline Margaronis, Director.
"And their address according to Public Registry is 18 Prince Albert Road, London.
"Notice should be served on the President, Pantelis George Margaronis. If he is not available you can serve notice on the Director Secretary or on the other director if the former is not in London".
Having got that information, Jessie Lee of Clydes, on the 9th December, 1980, telephoned the P. & I. Club to know if they would accept service, and got this reply:
"Will take clients' instructions re service by end of the week".
This was so unsatisfactory that on the 9th December, 1980 Jessie Lee decided to go ahead and apply to the Commercial Court for leave to issue a concurrent writ and for leave to serve it out of the jurisdiction. She made an affidavit showing that the contract was governed by English law. She said that the address of the company in Lloyd's Register of Shipowners was:
"C/o Aegean 77 Shipping Company Ltd.
15 Bury Street
London EC3A 5AH"
She also exhibited the telex giving the names of the directors and their address.
On the 9th December, 1980 Mr. Justice Goff gave leave to serve notice of the writ out of the jurisdiction and made this order:
"IT IS ORDERED that the Plaintiffs have leave to issue a Concurrent Writ of Summons against the Defendant company and have leave to serve the Concurrent Writ on Pantelis George Margaronis Director President, Isidores George Margaronis Director Secretary Treasurer and Jakeline Margaronis Director all of 18 Prince Albert Road, London and on the London Agents of the Defendant company, Aegean Shipping Co. 77 of 15 Bury Street, London, EC3 and it is further ordered that service upon any one of the above named Directors and/or upon the London Agents of the Defendant company shall be good and sufficient service on the Defendant company".
The order was drawn up on the 16th December, 1980: and the concurrent writ issued on that day.
On that same day Jessie Lee went to 15 Bury Street to serve the writ. But she found there that No. 15 Bury Street had recently been demolished. She made inquiries and found that the Aegean Shipping Co. 77 had moved to Salisbury House, Finsbury Circus, London, E.C.2. So on the next day, 17th December, 1980, she went to Salisbury House and to the office of the Aegean Shipping Co. 77 and left the writ with a representative there. She asked the representative if he knew the address of the directors. They were not at 18 Prince Albert Road. That was only the address of a clerk who had helped to form the company. The representative of Aegean Shipping Co. 77 told her that the private address of the President, Pantelis George Margaronis, and his wife, Jakeline Margaronis, was at 7 The Ridings, London. So she went to 7 The Ridings so as to serve them, but found no one at home.
She also instructed a process server. He went to Salisbury House and afterwards made an affidavit, saying:
"I personally served Meridian Shipping Company S.A., the above-named Defendants, by delivering to and leaving with a male person who identified himself only as Margaronis, but he admitted to me that he was a Director of the Defendant Company and the agent in London for Meridian Shipping Company S.A…. After I had served the proceedings upon him…he sought to say that he was not the person that should be served".
Later there was an affidavit sworn by George Pantelis Margaronis—the son of the President, Pantelis George Margaronis—in which he admitted that the process server asked him "whether I was Pantelis George Margaronis. I replied that I was his son". The process server then handed the son a copy of the concurrent writ. The son said: "We are not Meridian, but we are Malborough Shipping, their London agents". He said: "That is good enough".
It is quite plain that the Meridian Shipping Co. S.A. got to know at once of the writ and had a copy of it. They instructed solicitors: and on the 20th January, 1981 they applied to set aside the writ and service. Their solicitor made an affidavit in which he said:
"The Defendants are a Panamanian corporation of registered address 12, Avenida Centrale, Panama City, Republic of Panama. The company was a one-ship company and owned the 'VRONTADOS' until on the 15 May 1980 she was sold for scrap. She has not been replaced and the company does no other business".
The judge's decision
On the 21st May, 1981 Mr. Justice Parker held that Clyde & Co. had not effected service of the writ. He said that "since all three of the directors of the defendant company were residing in this country all three could have been served without the slightest difficulty": and that as there was not "anything impracticable about serving the directors, it would not now be right for the court to order that service on Aegean 77 stands as good service". Mr. Justice Parker set aside the service of the writ. He said that the objections taken by the defendants were "entirely technical". Yet he gave effect to them: and he refused to extend the validity of the writ.
On the facts I am quite clear that Clyde & Co. were not at fault at all. They held their hands quite reasonably throughout 1980—at the request of the P. & I. Club. During December 1980 they held their hands for two weeks because the P. & I. Club said that they were getting instructions to accept service. On the 16th December, 1980, with only four days to go, Clyde & Co. did all that was reasonable to effect service: and quite reasonably believed that they had...
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