British and Beningtons Ltd v North Western Cachar Tea Company
| Jurisdiction | UK Non-devolved |
| Judge | Lord Atkinson,. |
| Judgment Date | 03 November 1922 |
| Judgment citation (vLex) | [1922] UKHL J1103-1 |
| Date | 03 November 1922 |
| Court | House of Lords |
[1922] UKHL J1103-1
Lord Buckmaster.
Lord Atkinson.
Lord Sumner.
Lord Wrenbury.
Lord Carson.
House of Lords
After hearing Counsel, as well on Tuesday the 11th, as Thursday the 13th, days of July last, upon the Petition and Appeal of British and Beningtons, Limited, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 29th of November 1921, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the Petition and Appeal of the said British and Beningtons, Limited, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 29th November 1921, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the Petition and Appeal of the said British and Beningtons, Limited, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 29th of November 1921, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet (which said three Appeals were, by an Order of this House, of the 9th day of February last, ordered to be consolidated); as also upon the printed Case of the Mazdehee Tea Company, Limited, the North Western Cachar Tea Company, Limited, and the Baintgoorie (Dooars) Tea Company, Limited, lodged in answer to the said three Appeals; and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by His Majesty the King under His Sign Manual, dated the 26th day of October 1922, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, That the said Orders of His Majesty's Court of Appeal, of the 29th day of November 1921, complained of in the said Appeals, be, and the same are hereby, Affirmed: And it is hereby Declared, That the answer to the question submitted by the Arbitrator in each of the said Appeals should be that the amount of his award stands: And it is further Ordered that the said Petitions and Appeals be, and the same are hereby, dismissed this House: And it is also further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeals, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an Appeal from the Order of the Court of Appeal dated the 29th of November 1921, reversing Orders of Mr. Justice McCardie dated the 23rd June 1921 in favour of the Appellants upon three awards of an arbitrator stated in the form of a special case.
The question of law stated in each case for the opinion of the Court was, whether on the facts stated in the award the buyers were liable to pay damages to the sellers, and further that if the Court should be of opinion that the buyers were liable to pay damages to the sellers, then the arbitrator's award against the buyers, the Appellants, for 3,766 l. 10 s. and costs should stand.
That if, on the contrary, the Court should be of opinion that on the facts so stated the buyers were not liable to pay damages to the sellers, his award should be set aside, and in lieu thereof he awarded and determined that the sellers' claim to recover damages should be dismissed. The sum awarded in the second case to be paid by the same buyers to the sellers, the Baintgoorie (Dooars) Tea Company, under identical conditions was 2,118 l. 15 s. 7 d. and costs.
In the third the sum awarded to be paid by the same buyers to the sellers, Mazdehee Tea Company, Limited, was 2,118 l. 15 s. 7 d.
Three contracts had been entered into between the Appellants, the British and Beningtons, Limited, and the three Respondents respectively, bearing the respective dates of the 17th September 1919; the 11th July 1919; and the 26th of September 1919. By the first the North Western Tea Company sold to the Appellants the balance of the crop of the Bierampore division of the latter's estates of the season 1919-20, dust excluded. By the second the second Respondent, the Baintgoorie Tea Company, Limited, sold to the Appellants the whole of their crop of tea for the season 1919-1920, excluding dust; and by the third, the third Respondent, the Mazdehee Tea Company, Limited, similarly sold to the Appellants the whole of their tea crop for the same season (with an exception not material in this case).
This contract, which, so far as is material is similar in terms to the other, provided, only that the teas purchased were to be delivered at a bonded warehouse in London, with an option to the sellers to take delivery ex-ship at an allowance of 3 s. 4 d. per lb. on due notice being given. It provided in addition, amongst other things, (1) that the price was to be 1 s. 2 d. per lb. at exchange, at 1 s. 8 d. under usual sale conditions; (2) that the official estimate of the amount was 4,800 maunds, of which 1,600 maunds had already been sold; (3) that the tea was to be accepted and delivered without guarantee as to quality, but to be delivered in sound and mercantile condition; (4) that any teas rejected by the Customs or certified by any bonded warehouse to be country or sea-damaged to be on seller's account; (5) that any quantity up to 5 per cent, over the estimate was to be taken as part of the contract, any excess over this to be offered to the buyer at one-third less than the contract price; (6) that should the exchange rise over 1 s. 8 d. one halfpenny in the pound to be added to the price for every penny of a rise, and should exchange fall below 1 s. 8 d. one halfpenny to be allowed for every fall; (7) an arbitration clause.
As will presently be seen, much turns on the existence in these contracts of these seven provisions, in addition to the provision touching delivery.
Owing to the congestion existing in the Port of London in the early part of the year 1920, the ships carrying the bulk of the tea sold were by order of the Ship Controller diverted away from London to several out-ports. Disputes between the parties arising out of these diversions were ultimately referred to the arbitration and award of Mr. John Kenelm Stenning (an expert in the tea trade). These disputes included amongst others those between the Appellants and the first Respondents, relating to the three following shipments, i.e., 977 cases in the S.S. "Clan Buchanan," 176 cases in the "Clan Macbean" and 199 cases in the "Clan McDonald." The first-named of these three ships arrived at Southend on the 6th February 1920, and was diverted to Greenock, arriving there on the, 1st of March. The second, the "Clan Macbean," was diverted to Plymouth, arriving there on the 26th of February 1920. At these ports these two ships discharged into warehouses the tea they respectively carried. The "Clan McDonald" did not arrive in London till much later, the 27th June 1920, when the 157 cases of tea she carried were discharged into a bonded warehouse, but owing to the congestion were not weighed out till the 4th August 1920.
The dispute between the Appellants and the second Respondents had reference to three shipments of the 70 cases by the S.S. "Mainyo," 644 cases by S.S. "Maihar," and 200 cases by the S.S. "Maliakand," the congestion in the Port of London caused the first two of these to be diverted to Leith to discharge. They arrived at Leith on the 26th and 23rd of February respectively, and discharged the tea shipped in them into a warehouse. The "Malikand" arrived in London on the 26th of March 1920. The tea she carried was put into temporary storage, no bonded warehouse being available.
The dispute between the Appellants and the third Respondents had reference to two shipments of the following tea, viz., 306 cases by the S.S. "Clan Robertson" and 220 cases by the "Clan Macbean." The latter of these was, as already mentioned, diverted to Plymouth, arrived there on the 12th of February 1920, and discharged there into a warehouse, these 220 cases with the other tea she carried. The "Clan Robertson" arrived at Southend on the 20th December 1920, was diverted to Glasgow, arrived there on the 26th February, and discharged the tea she carried into a warehouse.
Large quantities of teas other than those belonging to the sellers had been by the Controller diverted to the ports of Greenock, Leith and Glasgow, with the result that those ports were greatly congested and that the weighing of the teas of the seller, which had been landed there, was much delayed. The tea ex the "Mainayo" was ready for delivery on the 12th of July 1920 and weigh notes in respect of it were delivered next day, the 13th of July. The tea ex the "Clan Robertson" was ready for delivery early in July 1920, and weigh notes in respect of it were delivered to the Appellants about the 10th of July...
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