Aries Tanker Corporation v Total Transport Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SCARMAN,LORD JUSTICE GOFF |
| Judgment Date | 06 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0206-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1976 |
[1976] EWCA Civ J0206-1
The Master of the Rolls
Lord Justice Scarman and
Lord Justice Goff
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Divislon
Commercial List
1974 A. No. 5474
MR. J.S. HOBHOUSE. Q.O. and MR. B. REYNOLD (instructed by Messrs. Coward, Chance & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).
MR. R.A. MACCRINDLE. Q.O. and MR. A.G. POLLOCK (instructed by Messrs. Denton, Hall & Burgia, Solicitors, London) appeared on behalf of the Defendants(Appellants).
REVISED JUDGMENT
In 1973 the owners of the vessel "Aries" let her on a. voyage charter to Total Transport Ltd. to carry petroleum from the Arabian Gulf to Rotterdam. The charterparty contained the usual clauses for freight - to be payable after completion and discharge without discount, less any advances made to the Master and cost of insurance.
The vessel duly made the voyage. The cargo was delivered at Rotterdam, but it was short-delivered. Some of the petroleum got lost en route. On account of it, when payment of freight was demanded, the petroleum company withheld the sum of 30,000 United States dollars from the freight. Two years later the ship owners claimed the balance of the freight as being due to them. The oil company then said that they were entitled to withhold the sum because of the short delivery. The ship owners replied that this cross-claim was too late. Article 3, Rule 6, of the Hague Rules says: "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unlesssuit is brought within one year after delivery of the goods or the date when the goods should have been delivered". So the ship owners said: "You are too late; you ought to have brought the suit within one year after discharge, and you did not".
On the pleadings the ship owners sought judgment under Order 14, and they were given it. They were given it because of the decision of this court in " The Brede" (1974) 1 Queen's Bench 233. In that case this court, following the rule of English law for well over a hundred years, held that freight must be paid in full on the discharge and it is not to be subject to any deduction for short delivery or the like. Mr. Justice Donaldson gave final judgment.
Now the charterers, Total Transport Ltd., appeal to this court. Mr. MacCrindie frankly recognises that he cannot ask this court to say that " The Brede" was wrongly decided. He seeks to have leave to appeal to the House of Lords. Mr. Hobhouse replies that the law of England has been settled for well over a hundred years, and he should not have leave to appeal. Mr. Hobhouse says if he wants leave let him go and ask the House of Lords for it. Upon this point we have had a most interesting resume of the arguments which could be deployed on either side. Mr. MacCrindle says that in " The Brede" we did not consider a very important argument, namely, that the rule of the common law originated in the days when law and equity were administered separately; and it was simply the common law rule which said that there could be no deduction from freight for short delivery or the like. He said that, if in those days an application had been made to a court of equity to restrain a ship owner from going ahead with a claim at law for freight until the cross-claim had been disposed of, then a court of equity...
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