Andre & Cie SA v Orient Shipping Rotterdam BV ('The Laconian Confidence') [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Rix J. |
| Judgment Date | 09 October 1996 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 09 October 1996 |
Queen's Bench Division (Commercial Court).
Rix J.
D Kendrick (instructed by Thomas Cooper & Stibbard) for the charterers.
P Gross QC and P Edey (instructed by Holman Fenwick & Willan) for the owners.
The following cases were referred to in the judgment:
Apollo, TheUNK [1978] 1 Ll Rep 800.
Aquacharm, TheUNK [1982] 1 Ll Rep 7.
Bridgestone Maru, The (No. 3)UNK [1985] 2 Ll Rep 62.
Court Line Ltd v Dant and Russell IncUNK (1939) 44 Com Cas 345.
Good Helmsman, TheUNK [1981] 1 Ll Rep 377.
Maestro Giorgis, TheUNK [1983] 2 Ll Rep 66.
Manhattan Prince, TheUNK [1985] 1 Ll Rep 140.
Mareva AS, TheUNK [1977] 1 Ll Rep 368.
Roachbank, TheUNK [1987] 2 Ll Rep 498.
Charterparty — Off-hire clause — Time charter on New York Produce Exchange form — Residue sweepings remained on board after vessel discharged cargo in Bangladesh — Port authorities insisted on lengthy bureaucratic procedures before vessel permitted to proceed — Whether vessel off-hire for 18 days — Whether loss of time from detention by average accident to cargo — Whether loss of time from “any other cause”— Whether cause prevented the full working of vessel.
This was an appeal and cross-appeal from a decision of arbitrators that a vessel was not off-hire under cl. 15 of a time charter on the New York Produce Exchange form where after discharging a cargo of some 10,000 tonnes in Bangladesh there remained on board 15.75 tonnes of residue sweepings and the port authorities insisted on a lengthy bureaucratic procedure before permitting the residue to be dumped and the vessel to proceed to her next business. In the event the vessel was delayed for nearly 18 days. The arbitrators found that the delay did not inevitably arise from damage to the cargo (assuming there was damage and that the owners were in breach of contract in relation to the care and discharge of the cargo) but from the “remarkable reaction to it” by the authorities.
The off-hire clause provided that in the event of the loss of time from deficiency and/or default of men or stores, fire, breakdown or damages to hull…detention by average accidents to ship or cargo, dry-docking…or by any other cause preventing the full working of the vessel, the payment of hire should cease for the time thereby lost. The arbitrators rejected the charterers” submission that the delay was caused by an average accident to cargo. They also held that “any other cause”, without the addition of the word “whatsoever”, had to be construed ejusdem generis with the preceding list of incidents and that the rejected sweepings could not be associated with the nature of any of those categories. Further citing The Mareva AS [1977] 1 Ll Rep 368 and The Roachbank [1987] 2 L1 Rep 498 they held that the sweepings did not prevent the full working of the vessel and thus that hire continued even though extraneous events prevented the charterers from using the vessel.
On appeal the charterers submitted that the vessel was off-hire by reason of “any other cause” viz. the port authorities' refusal to allow the vessel to leave. The authorities' reaction was eiusdem generis to the named cause of “detention by average accidents”. The full working of the vessel was prevented by the apparently extraneous cause of interference by authorities since a vessel's incapacity could be either physical or legal. The owners supported the arbitrators' findings that there was no average accident to cargo and that the vessel itself was fully capable of performing the service required of it. Secondly in the absence of the word “whatsoever” the eiusdem generis principle did apply and the arbitrators were right to say that the residues could not be associated with the nature of any of the categories in the clause. Thirdly the off-hire clause related to the physical condition of the vessel (including the suspected physical condition).
Held, dismissing the charterers' appeal:
1. The arbitrators were right to say that an average accident had to involve a fortuitous occurrence and were entitled to form the view that there was no element of fortuity in the presence of the residues. Even on the assumption that an average accident to cargo had occurred, the charterers would have failed to bring themselves within the off-hire clause by reliance on the named cause of detention by average accident to cargo, since in the arbitrators' view the cause of detention was the interference of the authorities, not the presence of the residues.
2. It could be legitimate to find that the full working of a vessel had been prevented by the action of authorities in preventing her working. The qualifying phrase “preventing the full working of the vessel” did not require the vessel to be inefficient in herself. A vessel's working might be prevented by legal as well as physical means and by outside as well as internal causes. An otherwise totally efficient ship might be prevented from working. That was the natural meaning of the words and there was no authority which prevented the court reaching that conclusion.
3. The question remained whether the ship had been prevented from working by a cause within the clause. The words “any other cause”, in the absence of the word “whatsoever”, were to be construed eiusdem generis or at any rate in some limited way reflecting the general context of the charter and clause. The named causes related to the physical condition or efficiency of either vessel (including its crew) or, in one instance, cargo. There was, moreover, the general context that it was for the owners to provide an efficient ship and crew. In such circumstances the unamended words “any other cause” did not cover an entirely extraneous cause, such as the interference by the authorities.
Rix J:
This is, for the present, the latest in a line of cases arising out of the New York Produce Exchange's off-hire clause and the problem created by the interference of authorities. As a result of such interference, the vessel, although entirely sound and efficient in herself, is prevented from working, that is to say from performing the next task required of her. Is the vessel off-hire, on the ground that she has been prevented from working by some “other cause”, i.e. by some cause other than the named causes in the clause? Or does she remain on-hire, because the vessel remains entirely efficient in herself, and/or because the ejusdem generis principle curtails “any other cause” to causes similar to the named causes?
My reader will recall that the NYPE's off-hire clause (cl. 15) provides as follows:
“That in the event of the loss of time from deficiency of [and/or default] men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost…”
The words in italics “and/or default” were added to the standard clause in the instant case, as they often are. (They were in error slightly misplaced: the obvious intent is that the clause should read “deficiency and/or default of men”; but nothing turns on that.) The word “whatsoever” is sometimes added to the phrase “or by any other cause”, but not in the instant case. It is established that the phrase “preventing the full working of the vessel” qualifies not only the phrase “any other cause” but also all the named causes (The Mareva AS[1977] 1 Ll Rep 368 at p. 382). It has therefore been said that the first question to be A answered in any dispute under the clause is whether the full working of the vessel has been prevented; for if it has not, there is no need to go on to ask whether the vessel has suffered from the operation of any named cause or whether the phrase “any other cause [whatsoever]” is or is not limited in any way: The AquacharmUNK[1982] 1 Ll Rep 7 at p. 9, The RoachbankUNK[1987] 2 Ll Rep 498 at p. 507.
The Mareva AS is also cited for the proposition that the qualifying condition “preventing the full working of the vessel” is not met if “the vessel in herself remains fully efficient in all respects” (at p. 382).
Ten years later, by time of The Roachbank, this had become:
“a judicial gloss…so that the question which has to be asked, according to the authorities, is whether the vessel is fully efficient and capable in herself of performing the service immediately required by the charterers…”
Nevertheless, this judicial gloss has caused problems in cases where the cause of delay is the interference of authorities operating on a vessel which is herself fully efficient. Four cases in particular illustrate this problem. In The ApolloUNK[1978] 1 Ll Rep 800 the vessel was denied free pratique and thus prevented from berthing and discharging while the suspicion of typhus in two of her crew members was investigated and, as it turned out, eliminated. In The AquacharmUNK[1980] 2 Ll Rep 237 (Lloyd J), [1982] 1 Ll Rep 7 (CA) the D vessel was delayed by the authorities at the entrance to the Panama Canal until she had lightened part of her cargo. In The Maestro GiorgisUNK[1983] 2 Ll Rep 66 the vessel was arrested by receivers as a result of alleged cargo damage on the voyage. In The Roachbank the vessel was delayed in being permitted to enter port because of the presence on board her of 293 Vietnamese refugees. In the first and third of those cases the vessel was held to be off-hire, in the second and fourth on-hire. The word “whatsoever” lies on both sides of that divide for, although it was absent in The Aquacharm, it was present in the other cases.
The present case concerns the port authorities' bureaucratic refusal to allow the Laconian Confidence (“the vessel”) to proceed to her next business following discharge of her cargo because of the presence remaining on board...
To continue reading
Request your trial
-
Cosco Bulk Carrier Company Ltd v Team-Up Owning Company Ltd (M/v Saldanha) [QBD (Comm)]
...The following cases were referred to in the judgment: Andre et Cie SA v Orient Shipping (Rotterdam) BV (The Laconian Confidence) [1997] CLC 300. Chandris v Isbrandtsen-Moller Co IncELR [1951] 1 KB 240. Kelman v LivanosUNK [1955] 1 Ll Rep 120. Kidston v Empire Marine Insurance CoELR (1866) L......
-
Britvic Plc v Britvic Pensions Ltd
...C.10(2) was not “any other rate whatsoever”. Rix J had held in Andre & Cie SA v. Orient Shipping Rotterdam BV (The Laconian Confidence) [1997] CLC 300 at page 314 that the words “any other cause” could not mean “any other cause whatsoever”, but had to be construed eiusdem generis as meaning......
-
Osmium Shipping Corporation v Cargill International SA
...of the ship or the crew could count as off-hire events but not extraneous events. Reliance was placed on The Laconia Confidence [1997] 1 Lloyds Rep 139 at pages 150–151 in support of this suggestion, but there, the interference of authorities was referred to by the judge as an extraneous ev......
-
Cosco Bulk Carrier Company Ltd v Team-up Owning Company Ltd (The Saldanha)
...a matter best encapsulated, with respect, in a passage from the judgment of Rix J (as he then was) in The Laconian Confidence [1997] 1 Lloyd's Rep. 139, at pp. 150 – 151: “In my judgment it is well established that those words [i.e., 'any other cause'], in the absence of 'whatsoever', shoul......
-
Shipping Update: Piracy Off-hire or not?
...The significance of this distinction had been highlighted previously by Rix J (as he then was) in The Laconian Confidence [1997] 1 Lloyds Rep. 139. In that case it was held that the words 'any other cause' in the absence of the word 'whatsoever' should be construed ejusdem generis so as to ......
-
Fukushima - some implications for the Shipping Industry
...whether the carriage of contaminated cargo will lead to the vessel being on or off hire. In the case of The Laconian Confidence [1997] 1 Lloyd's Rep. 139, charterers ordered the vessel to sail from Yangon to Chittagong in Bangladesh where, following the discharge of the cargo (bagged rice),......
-
The "refugee Clause" for Commercial Shipping Contracts: Why Allocation of Rescue Costs Is Critical During Periods of Mass Migration at Sea
...supra note 155.161. Belcore, supra note 160, at 67. 162. Andre & Cie S.A. v. Orient Shipping (Rotterdam) B.V. (Laconian Confidence) [1997] 1 Lloyd's Rep. 139 at 141 (Eng.) (noting "this judicial gloss has caused problems in cases where the cause of delay is the interference of authorities o......