Agrosin Pty Ltd v Highway Shipping Company Ltd ('The Mata K') [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Clarke J. |
| Judgment Date | 22 May 1998 |
| Date | 22 May 1998 |
| Court | Queen's Bench Division (Commercial Court) |
Queen's Bench Division (Commercial Court).
Clarke J.
Michael Davey (instructed by Finers) for the plaintiffs.
James Turner (instructed by Norton Rose) for the defendants.
The following cases were referred to in the judgment:
Aktieselskabet Ocean v B Harding & Sons LtdELR [1928] KB 371
Attorney-General of Ceylon v Scindia Steam Navigation Co LtdELR [1962] AC 60
Canada and Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships LtdELR [1947] AC 46
Hogarth Shipping Company Ltd v Blyth, Greene, Jourdain & Co LtdELR [1917] 2 KB 534
New Chinese Antimony Co Ltd v Ocean Steamship Co LtdELR [1917] 2 KB 664
Noble Resources Ltd v Cavalier Shipping Corp (“The Atlas”) [1996] CLC 1148
River Gurara (Cargo Owners) v Nigerian National Shipping Line Ltd [1997] CLC 1322; [1998] QB 610
Thomas (T W) & Co Ltd v Portsea Steamship Co LtdELR [1912] AC 1
Shipping — Bill of lading — Voyage charterparty — Quantity of goods — Holder of bill of lading alleged shortage — Owners denied shortage — Whether “weight unknown” bill of lading represented goods shipped on board — Whether shipper had demanded bill of lading showing weight shipped — Whether “weight unknown” provision void attempt to relieve carrier from liability — Whether owners bound by determination of cargo quantity under charter — Hague Rules, art. III, r. 3, 4, 8 — Carriage of Goods by Sea Act 1992, s. 4.
This was the plaintiff charterers' summons under RSC, O. 14A for the determination of a question of law whether the defendant owners were bound by the quantity of goods stated in a bill of lading.
The bill, in the Congenbill form, was issued under a voyage charter in an amended Fertivoy 88 form for the carriage of 25,000 metric tons (ten per cent more or less in owners' option) of muriate of potash from Latvia to South Korea and Japan. The carriage was governed by the Hague Rules. The bill of lading was signed by the plaintiffs on behalf of the defendants as carriers. The bill described the goods shipped as 11,000mt of muriate of potash and also stated “weight…unknown”.
It was alleged that on final discharge in Japan there was a shortfall. The plaintiffs settled a claim by their buyer and brought proceedings against the defendants as assignees of the buyers' rights arising out of the bill of lading. The defendants denied the alleged shortage. The plaintiffs argued that the defendants were bound by the bill of lading quantity either because the bill represented that 11,000mt had been shipped within s. 4 of the Carriage of Goods by Sea Act 1992, or because cl. 46 of the charterparty provided for the quantity of cargo determined by an independent surveyor to be binding between the parties and the plaintiffs relied on a draft survey report for that purpose.
Held, ruling accordingly:
1. A bill of lading which stated that 11,000mt of cargo were shipped “weight unknown” was not a representation that 11,000mt were shipped within s. 4 of the Carriage of Goods by Sea Act 1992. The “weight…unknown” provision was not rendered void by art. III, r. 3 and 8 of the Hague Rules. There was no suggestion or evidence that the plaintiffs asked the defendants to issue a bill of lading showing the shipment of 11,000mt without the qualification “weight…unknown”, and therefore art. III, r. 3 was not satisfied and art. III, r. 4 did not apply. ( New Chinese Antimony Co Ltd v Ocean Steamship Co LtdELR [1917] 2 KB 664 and Noble Resources Ltd v Cavalier Shipping Corp (“The Atlas”)[1996] CLC 1148followed.)
2. Even if shippers made a demand within the meaning of art. III, r. 3, if the carriers then introduced a provision such as “weight…unknown”, that provision would not be a clause, covenant or agreement relieving the carrier or the ship from liability within the meaning of art. III, r. 8.
3. Clause 46 of the charterparty was inconsistent with the provisions on the face of the bill of lading and must therefore yield to them. The bill of lading expressly provided that the weight was unknown. It was thus inconsistent with the conclusive evidence provision in cl. 46 of the charterparty. Either cl. 46 was not incorporated into the bill of lading or, if it was, as a matter of construction, it had to yield to the express provision of the bill of lading. ( Hogarth Shipping Company Ltd v Blyth, Greene, Jourdain & Co LtdELR [1917] 2 KB 534 considered.)
Clarke J: The plaintiffs were the charterers of the defendants' motor vessel, Mata K, under a voyage charter dated 17 December 1996 in an amended Fertivoy 88 form for the carriage of 25,000 metric tons (ten per cent more or less in owners' option) of muriate of potash from one safe berth Ventspils to 1–2 safe berth(s) each two safe ports South Korea 1–2 safe berth(s) each 1–2 safe port(s) Japan. A cargo of potash was shipped at Ventspils under three bills of lading each dated 31 December 1996. The total tonnage referred to in the bills of lading was 24,024.70mt. I am, however, concerned with only one of the three bills, no. SVJ-0187/96. It is in the Congenbill form. The plaintiffs are named as shippers and the goods were consigned to order but the notify address is that of Mitsui and Co in Tokyo (“Mitsui”). The bill of lading is signed by the plaintiffs on behalf of the defendants as carriers. The port of loading is described as Ventspils, Latvia and the port of discharge as Japanese port(s). In the box marked “Shipper's description of goods” the goods are described as “Muriate of Potash in bulk” and under “Gross weight” there appears the figure “11,000 MT”. The box marked “SHIPPED” includes the following:
“weight, measure, quality, quantity, condition, contents and value unknown.”
It is common ground that the carriage was governed by the Hague Rules. Clause 1 of the conditions of carriage on the back of the bill of lading provides:
“All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.”
It is common ground that the charterparty referred to in the clause is the charterparty between the plaintiffs and the defendants to which I have already referred.
After loading, the vessel proceeded to discharge at Ulsan and Chinhae in Korea. She then proceeded to Japan where she discharged the remainder of her cargo at Ishinomaki and Sodeguara. It is alleged that on final discharge at Sodeguara it was discovered that there was a shortfall of about 2,705 metric tons as compared with the total of the cargo stated in the three bills of lading, namely 24,024.7mt. I do not know how the outturn figures were arrived at at the four discharge ports, but it appears that Mitsui made a claim in respect of the alleged shortage. They appear to have made a claim as buyers against the plaintiffs as sellers under an alleged contract of sale, although I have seen very little of the relevant documentation in that regard. They also made a claim as holders or indorsees of the bill of lading which I have described against the defendants as carriers. The plaintiffs reached a settlement with Mitsui, who assigned their rights against the defendants to them. This action is brought by the plaintiffs as assignees of Mitsui's rights against the defendants arising out of the bill of lading. I understand that there are arbitration proceedings in existence between the plaintiffs and the defendants under the charterparty but I am not concerned with them.
The matter now comes before the court in this way. The defendants deny the alleged shortage. They say that all the cargo shipped was discharged and that, if less than the total bill of lading quantity was discharged, the explanation is that the total bill of lading quantity was not shipped. The plaintiffs say that the defendants are bound by the bill of lading quantity and that it is not open to them to say that the whole quantity was not shipped. The plaintiffs have issued a summons under RSC, O. 14A for the determination of the following question (as slightly amended), namely whether the defendants are bound by the quantity of goods stated in the bill of lading by reason of the terms of the bill of lading and/or by reason of the incorporation of cl. 46 of the charterparty. I think that it is agreed that I should determine that question under RSC, O. 14A and that for that purpose...
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