Assunzione. The
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE BIRKETT,LORD JUSTICE HODSON |
| Judgment Date | 17 December 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1217-4 |
| Docket Number | Folio 361 |
| Court | Court of Appeal |
| Date | 17 December 1953 |
[1953] EWCA Civ J1217-4
In The Supreme Court of Judicature
Court of Appeal
(Interlocutory List.)
Lord Justice Singleton
Lord Justice Birkett
Lord Justice Hodson
Counsel for the Appellants: SIR ROBERT ASKE, Bart., . C., and MR H.V. BRANDON, instructed by Messrs Clyde & Co.
Counsel for the Respondents: MR A.A. KOOATHA, Q.C,., and MR R.P, COLINVAUK, instructed by Messrs Crawley & de Reya.
This appeal from a judgment of Mr Justice Willmer arises out of a claim made by the Plaintiffs, the Owners of Cargo lately laden on board the vessel "Assunzione" against the Defendants, who are the owners of the ship. The plaintiffs were Charterers of the "Assunzione", and they claimed against the ship owners damages in respect of damage to, and short delivery of, a cargo of wheat which was being carried by the "Assunzione" from Dunkirk to Venice. There is also a laim to recover the proportion of a salvage award which had to be paid on behalf of the cargo. We are concerned only with a preliminary point, and that is, what is the law to be applied to the contract of affreightment which was made between the parties?
It appears from the pleadings that both parties were at one time prepared to put the case in the alternative, that either the law of France or the law of Italy should govern the contract, but it was, ascertained that the law of Italy contains certain provisions which would react unfavorably upon the plaintiffs' claim, and they, the Charterers, now contend that the law of France should be applied, while the shipowners say that the law of Italy should be applied.
There is an Agreed Statement of Facts; Paragraph 1 reads: "The plaintiffs are a French organization called Office National Interprofessional des Cereales. The Defendants are an Italian partnership comprising two brothers carrying on business in Genoa and Naples. The 'Assunzione' at all material times was of Italian registry and flew the Italian flag."
Paragraph 2: "On the 21st may 1949 a written Exchange Agreement was made between the High commissioner for Food of the Italian Republic acting throughFederazione Italiana dei Consorzi Agrari (hereinafter called 'Federazione') of the one part and the High Commissioner for Food of the French Republic acting through the plaintiffs of the other part whereby it was agreed inter alia as follows:- (a) That the High Commissioner for Food of the Italian Republic should put at the disposal of the High Commissioner for Food of the French Republic certain quantities of grain and flour to be delivered in France by the 15th July 1949. (b) That the Plaintiffs should subsequently make restitution of such grain and flour by delivering like quantities to Italian ports by the 1st January 1950. (c) That the guiding principle of the agreement should be that it Should bring no profit and cause no loss to the Italian Government."
That Agreement was drawn up in the two languages, and there is a copy of it at pages 18 and 19 of the file.
In Article 2 (b) of the Agreement it is provided: "The restitution will take place on dates to be determined by mutual agreement between the Federconsorzi and ONIC. It shall terminate, with the grain back in Italian ports, before the lst January 1950. (c) The restitution ports are limited to those on the following list:- Genoa, Legorn, Civitavecchia, Gulf of Naples, Messina, Catania, Palermo, Gagliari. (d) The tonnage toe shipped to each of the above-mentioned ports and the dates of snipment will be determined by mutual agreement between The Federconsorzi and ONIC. 'ONIC reserves the right of altering the tonnage indicated above according to the capacity of the steamers in accordance with a proportion that shall not exceed 10% one way or the other. Art.3. The guiding principle of the Exchange operations to which the present Agreement relates is that the said operationswill not bring any profit, or cause any loss to, the Italian Government …"
It was in compliance with the clause as to restitution that grain was to be shipped, and was shipped, from France to Italy in October, 1949.
Paragraph 3 of the Agreement Statement of Facts reads: "On the 7th October 1949 in Paris the Plaintiffs, in pursuance of their obligation to make restitution under the said Exchange Agreement, entered into a charterparty with the Defendants whereby they chartered the Defendants' s. s. 'Assunzione' to carry a cargo of wheat from Dunkirk to Italy. The said charterparty was negotiated through L. Azerad & Fils brokers in Paris and Ballestrero Tuena & Canepa brokers in Genoa as appears from the cables and correspondence constituting Appendix 'B' hereto. The Defendants were not at, any material time aware of the terms of the said Exchange Agreement." I draw attention to the fact that it was common ground that the ship owners were not aware of the terms of the Exchange Agreementbetwe en the Departments of the Italian and French Governments.
The paragraph continues: "The said charterparty was drawn up in the English language using the printed form of Uniform General Charter of the Documentary Council of The Baltic and White Sea Conference. The said Charterparty, to which the parties will refer for its full terms and effect, constitutes Appendix 'C' hereto. 4. On the 2lst October 1949 at Dunkirk there were issued two Bills of Lading signed on behalf of the Master of the 'Assunzione' in respect of a quantity of wheat shipped on board the said vessel at that port by Societe Generale de Surveillance S.A. (hereinafter called 'Surveillance') as agents for the Plaintiffswho were the owners thereof. The said bills of lading were drawn up in the French language and provided inter alia for carriage to Venice and delivery to order on payment of freight in accordance with the said charterparty", and the Bills of Lading are attached.
Paragraph 5 is in these terms: "At some time between the 2lst October 1949 when the 'Assunzione' sailed from Dunkirk and the 10th December 1949 when she arrived at Venice the bills of lading upon presentation of which the cargo was ultimately delivered were endorsed in blank by Surveillance and sent through the post to Sorveglianza S.I.P.A. in Italy (hereinafter called 'Sorveglianza'). Thereafter they were transmitted by Sorveglianza to Federazione and endorsed by the latter in Venice before presentation to the ship. 6. During the course of the voyage of the 'Assunzione' from Dunkirk to Venice carrying the said wheat damage was sustained by and salvage services rendered to both ship and cargo. 7. On the 12th December 1949 in Venice a General Average Agreement relating to the 'Assunzione's' said voyage was signed by Sorveglianza and the Master of the said vessel. A true translation of the said Agreement, to which the parties will refer for its full terms and effect, constitutes Appendix 'E' hereto. 8. On or about the 24th December 1949 the 'Assunzione' completed discharge of her cargo."
The remaining paragraphs of the Agreed statement of Facts deal with what followed and the nature of the claims; the first claim appears to have been made by a letter dated December 27th, 1949, a copy of which is on page 40 of the file.
It is upon that Agreed Statement of Facts, and upon the documents, that this preliminary point has to be determined.
Obviously I must refer to the Charterparty, to which importance is attached by Sir Robert Aske, who appeared for the Plaintiffs, the Appellants, inthis case. The Charterparty is headed: "Paris, 7th October 1949", and from that comes the first point made by learned Counsel on behalf of the plaintiffs. It is said that this Charterparty was made in Paris between people who were in Paris, and that the fact that they put "Paris" at the head of the document shows that they attached importance to the fact that the place at which the contrac was made was in France.
It appears to me that it is desirable to look a little further into the matter, and if one does so one finds that the signing of the Charterparty followed upon certain correspondence which had taken place, as shown by the documents from page 22 to page 27. These show that Ballestrero Tuena & Canepa, the Italian brokers, corresponded with LAzerad, the French brokers, between the 5th October and the 7th October, and I think it is right to say that in general the terms of the Charterparty were agreed in that correspondence before the actual Charterparty was signed. I wholly agree with the submission of Sir Robert Aske that the parties contemplated that there should be a charterparty and that the negotiations which they had were leading up to that end; but, none the less, it is not a case of two parties who are resident in Paris, or those headquarters are in Paris; it is not that kind of case. One party has its headquarters in Paris; the other side has its headquarters in Italy. Correspondence took place, and, finally, the brokers signed the Charterparty in Paris on the 7th October.
Let me come to the terms of the Charterparty. It provides that the vessel being so laden "shall proceedto One good and safe port West Coast Italy including Sicily or at charterers option, one good and safe port Adriatic Coast Italy, amongst Bari, Ancona or Venice as ordered on signing Bills of Lading or so near there unto as she may safely get and lie always afloat and there deliver the cargo on being paid freight — on intaken quantity — as follows 1980 Italian Lire per metriction if West Coast Italy, 2205 Italian Lire per metricton if Adriatic Coast Italy."
The cargo which she was to take on board was "7,000 metric tons 5% more or less, quantity at Master's ption, wheat in bulk, 10% in bags."
The provision as to payment, which is to be made in...
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