Antclizo Shipping Corporation v Food Corporation of India (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,SIR JOHN MEGAW,LORD JUSTICE STOCKER |
| Judgment Date | 18 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0218-3 |
| Docket Number | 92/0114 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1992 |
[1992] EWCA Civ J0218-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr. Justice Hirst)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Stocker
and
Sir John Megaw
92/0114
MR. A. CLARKE QC and MR. C. HADDON-CAVE (instructed by Messrs Herbert Smith) appeared on behalf of the Respondents (Plaintiffs).
MR. A. HAMILTON QC and MISS G. ANDREWS (instructed by Messrs Gagrat Gardi & Co.) appeared on behalf of the Appellants (Defendants).
The appellant charterers ("the charterers") appeal and the respondent owners ("the owners") cross-appeal from the judgment of Hirst J. on a special case dated the 17th October 1990 stated by Mr. Anthony Colman Q.C. in an arbitration pursuant to a charterparty dated 20th October 1973. The judgment under appeal is reported at [1991] 2 Ll 485. The facts and arguments of the parties are there set out in detail. I shall therefore, in this judgment, set out only the basic facts necessary for an understanding of my conclusions and the reasons therefor.
The charterparty provided for the owners' vessel "Antclizo" to load a cargo of wheat and/or sorghum in bulk at 1/2 safe ports U.S. Gulf and thence to proceed to Bombay, Kandla or Madras in charterers' option and there discharge. The cargo was duly loaded carried to Bombay and there discharged. Discharge was completed on the 10th February 1974.
Thereafter disputes arose between the parties as to despatch at loading port, demurrage at Bombay, payment of the balance of freight, interest and certain other matters.
Arbitrators were appointed in 1975 but it was not until 1990 that the arbitration in fact took place. We are not concerned with the reasons for that delay but it has led to the remarkable situation that we are dealing with events which occurred over 18 years ago under a procedure which has long since disappeared.
We are concerned with two matters only, namely the validity of the notice of readiness given by the vessel on arrival at Bombay and the question whether the owners had any cause of action for the balance of freight prior to the date of the Arbitrator's award. The Arbitrator held that the notice of readiness was valid and that there was no cause of action for the balance of freight until the date of his award. Hirst J. upheld his conclusions. If we reach a different conclusion on either issue the case will have to be remitted to the Arbitrator for further hearing since there is, for good reasons, no alternative award.
The Validity of the Notice of Readiness.
Clause 34 of the charterparty so far as immediately relevant provides:
"At first or sole discharging port or place, time to count from 24 hours after receipt of Master's written Notice of Readiness to discharge given to Charterers or their Agents during ordinary office hours on a weekday before 4 p.m. (similarly before noon if on a Saturday), vessel also having been entered at Custom House and in free pratique whether in berth or not."
The charterers take two points on the validity of the Notice. They submit first, that when it was given, the vessel had not been entered at Custom House within the meaning of the clause. They submit, secondly, that even if they are wrong on this point, the vessel was not at that time ready to discharge since discharge at that time would have been illegal and legal discharge could not have commenced until some hours later. These are separate and distinct points although the facts bearing on their determination to some extent overlap. I shall consider them separately.
Was the vessel entered at Custom House at the time Notice of Readiness was given?
Sections 30(1) and section 31 of the Indian Customs Act 1962 so far as immediately relevant provide:
"30(1) The person-in-charge of a conveyance carrying imported goods shall, within twenty four hours after arrival thereof at a customs station, deliver to the proper officer, in the case of a vessel or aircraft, an import manifest, and in the case of a vehicle an import report, in the prescribed form:
Provided that—
(a) In the case of a vessel any such manifest may be delivered to the proper officer before the arrival of the vessel;…
31(1) The master of a vessel shall not permit the unloading of any imported goods until an order has been given by the proper officer granting entry inwards to such vessel
(2) No order under subsection (1) shall be given until an import manifest has been delivered or the proper officer is satisfied that there was sufficient cause for not delivering it."
The Indian Central Board of Excise and Customs publishes, marked "for departmental use only", the "Central Manual of the Import Department in the Customs Houses" which is stated to contain the "Procedure, Rules and Regulations relating to the functioning of the Import Department in the Customs House". The relevant provisions of that manual are set out both in the Special Case and the judgment of Hirst J. as are the Arbitrator's findings in the Special Case as to the practice at Bombay. I do not repeat them here.
Their effect, in my view, may fairly be summarised as follows:
(i) The procedure at Bombay for entry of vessels and goods has three stages.
(ii) The first stage, known as "Prior Entry", which derives its name from "entry prior to arrival", was introduced in order to save time in customs procedures after vessels had arrived at the port i.e. at the Bombay Floating Light. It is used by 95% of vessels discharging at the port.
(iii) Prior Entry operates in the following way. Some days prior to arrival the ship's agents lodge with the Import Department at the Customs House an import general manifest (I.G.M.) and an application for entry inwards of the vessel in the form prescribed in the manual. On receipt of these documents the Customs Clerk, if satisfied that the documents are in order, will give the vessel a serial rotation number. He will then enter that number and the particulars of the vessel in the Inward Entry Register and will also enter that number on the I.G.M. and stamp the I.G.M. with the words "admitted under P/E (Prior Entry) Rules". He will also exhibit on the Customs Notice Board the vessel's name and serial number with the reference P/E which indicates that Prior Entry procedure has been completed. This tells the importer that he can proceed to lodge his bill of entry under section 46 of the 1962 Act. At this stage some columns in the Inward Entry Register are left blank. They are "Date", "Date and hour of arrival of vessel in Port" and "Initials of Officer authorising Inwards Entry".
Finally the clerk will provide the agents with a certificate in the form prescribed in the manual. It is necessary to set out the form of this certificate. It reads:
"Cargo manifest of vessel…having been presented by M/s Import Rotation Number…has been assigned to the said vessel due to arrive at…The undertaking for completing various formalities has been executed by the aforesaid agents. After the submission of the store list (in duplicate) and crew property list (in duplicate) signed by the Master and when the vessel is about to begin discharge of her cargo, the concerned Preventive Officer in the section may grant her entry inwards."
(iv) The second stage arrives when the vessel has reached the Inner Anchorage and is ready to discharge cargo there or is in berth and ready to discharge there. At that stage, if a Customs Preventive Officer is available, he will be provided by the Master with a stores list and crew property list. He will carry out a cursory examination of the crews' property and seal the vessel's bonded property store. He is not concerned with cargo. Unless his suspicions are aroused he will, if the documents are in order, endorse the certificate referred to above in the prescribed form which, so far as material, states: "Inward entry is granted to this vessel for the purpose of section 31 of the Customs Act 1962". Stage 2 is then complete and discharge may lawfully begin.
(v) The certificate so endorsed, together with other documents, must then, within the next working day, be taken to the Import Department at the Customs House. If the documents are in order the clerk will then automatically fill in the blank columns in the Inwards Entry Register. At this stage it is necessary to quote regulation 15 of the Manual which provides:
"On receipt of the certificate in the Import Department the manifest is admitted finally."
(vi) It sometimes happens that when a vessel is ready to discharge at the Inner Anchorage a boarding officer is not available. In such a case, if the Customs have already given permission to break bulk in stream, discharging starts at once and further customs procedures are not carried out save that the agents would still be obliged to lodge the documents.
So much for the procedures. It is necessary to add certain facts found in the Special Case as to practice at Bombay. These are:
(a) Agents do not go out to vessels at the Floating Light owing to the distance involved, but free pratique may be obtained there.
(b) It is the invariable practice for vessels waiting instructions for discharge to give notice of readiness at the Floating Light.
(c) In 1988 in a case in the High Court in Bombay Singh J. held that, in a charterparty containing an identical clause to clause 34, the vessel was "entered at the Custom House" on completion of Prior Entry procedure and before entry inwards procedures had been completed. The decision is under...
To continue reading
Request your trial
-
Mauritius Oil Refineries Ltd v Stolt Nielsen Nederland BV ('The Stolt Sydness') [QBD (Comm)]
... ... the judgment: Amin Rasheed Shipping Corporation v Kuwait Insurance CoELR 4] AC 50 ... Antclizo Shipping Corporation v Food Corporation of India (“The Antclizo No. 2”)UNK [1992] 1 Ll Rep 558 ... ...