Buchanan (James) & Company Ltd v Babco Forwarding & Shipping (U.K.) Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 09 November 1977 |
| Court | House of Lords |
Carriage by Land - International carriage of goods by road - Measure of damages - Whisky to be carried from Glasgow to Teheran - Whisky stolen in England - Excise duty payable by consignor after theft - Measure of compensation for loss of whisky - Whether excise duty recoverable -
The Carriage of Goods by Road Act 1965 by section 1 gave the force of law in the United Kingdom to the provisions of the Convention on the Contract for the International Carriage of Goods by Road as set out in the Schedule to the Act. Article 17 (1) of the Convention provided:
“The carrier shall be liable for the … loss of the goods … occurring between the time when he takes over the goods and the time of delivery, …”
Article 23 provided:
“1. When, under the provisions of this Convention, a carrier is liable for compensation in respect of total or partial loss of goods, such compensation shall be calculated by reference to the value of the goods at the place and time at which they were accepted for carriage. 2. The value of the goods shall be fixed according to the … current market price or, if there is no … current market price, by reference to the normal value of goods of the same kind and quality … 4. In addition, the carriage charges, customs duties and other charges incurred in respect of the carriage of the goods shall be refunded in full in case of total loss … but no further damages shall be payable …”
The defendants agreed with the plaintiffs to carry 1,000 cases of whisky from the plaintiff's Glasgow premises to Teheran in Iran. The contract was subject to the terms and conditions of the Convention. On January 24, 1975, the whisky was taken from the plaintiffs' bonded warehouse in Glasgow and loaded into the defendants' container which was put on to a trailer for carriage by the defendants to Teheran. The value of the whisky in bond was some £7,000. Since it was intended for export the plaintiffs had not paid the excise duty of some £30,000 on it. During the following weekend the trailer, container and whisky, which had been left unattended in a lorry park in London by one of the defendants' employees, was stolen. Because the whisky had been stolen in England, the plaintiffs paid the excise duty on it in accordance with their liability under section 85 of the
On the defendants' appeal: —
Held, (1) that there could be more than one current market price at the same time for the same type of goods depending on where they were to go; and that, since the plaintiffs' whisky had been intended for export and the evidence established that there had been a definite export market for it, the current market price, or normal value, of the whisky under article 23 (2) of the Convention had been its current export market price, i.e., its value ex duty (post, pp. 910D–F, 915C, D, 918G–919A, 922H–923A, 928F).
(2) Dismissing the appeal (Lord Edmund-Davies and Lord Fraser of Tullybelton dissenting), that the words “other charges incurred in respect of the carriage” in article 23 (4) were loosely drafted and should be given a broad interpretation in accordance with the intentions of the makers of the Convention; that, so interpreted, they were wide enough to cover charges arising in consequence of the way in which the whisky had been carried or miscarried; and that, accordingly, the plaintiffs were entitled to recover against the defendants in respect of the duty which they had had to pay as a result of the defendants' negligence in losing the whisky (post, pp. 911F–H, 913G, H, 916C, D, H–917D, 919C).
Per Lord Wilberforce, Viscount Dilhorne and Lord Salmon. There is no reason to abandon English methods of interpretation in favour of “continental” methods (post, pp. 912E–H, 915F, 920G, H).
Observations on the permissibility of resorting to the foreign texts of international conventions as an aid to their interpretation (post, pp. 911H–912D, 917D, E, 919H–920B, 925C, F, 928G).
The following cases are referred to in their Lordships' opinions:
British-American Tobacco Co. (Nederland) B.V. v. van Swieten B.V. (unreported), March 30, 1977, Amsterdam Arrondissementsrechtbank (3rd Chamber A).
Brook's Wharf and Bull Wharf Ltd. v. Goodman Brothers[
Carter v. Bradbeer[
Charrington & Co. Ltd. v. Wooder[
Corocraft Ltd. v. Pan American Airways Inc.[
Ellerman Lines Ltd. v. Murray[
Fothergill v. Monarch Airlines Ltd.[
L'Helvetia (Cie) v. Cie Seine et Rhone (1973), Bulletin des Transports (Paris), 1973, p. 195, Court of Appeal of Paris (5th Chamber).
Post Office v. Estuary Radio Ltd.[
Stag Line Ltd. v. Foscolo, Mango and Co. Ltd.[
Ulster-Swift Ltd. v. Taunton Meat Haulage Ltd.[
The following additional cases were cited in argument:
Salomon v. Customs and Excise Commissioners[
Tatton (William) & Co. Ltd. v. Ferrymasters Ltd.[
APPEAL from the Court of Appeal.
This was an appeal by the defendants, Babco Forwarding & Shipping (U.K.) Ltd., by leave of the Court of Appeal (Lord Denning M.R., Roskill and Lawton L.JJ.) from their dismissal on December 2, 1976, of the defendants' appeal from Master Jacob. Master Jacob on May 6, 1976, on a reference to him by Mocatta J. for assessment of damages, judgment having been given for the plaintiffs, James Buchanan & Co. Ltd., in default of defence, held that the plaintiffs were entitled to damages for the loss of a lorryload of whisky in the sum of £36,991.50 (including £29,767.50 excise duty) with interest.
The facts are set out in their Lordships' opinions.
Roger Buckley and Martin White for the defendants.
Robert Alexander Q.C. and David Johnson for the plaintiffs.
Their Lordships took time for consideration.
November 9. LORD WILBERFORCE. My Lords, the question in this appeal is whether the appellants, as carriers, are liable to the respondents, as owners and consignors, in respect of a consignment of whisky stolen in the course of transport by road in England on its way from a bonded warehouse in Glasgow via the port of Felixstowe to Iran (i) for some £7,000, representing the export price of the whisky, or (ii) for some £37,000 representing that price plus £30,000 excise duty which the owners became obliged to pay to the customs authorities. The Court of Appeal, affirming the judgment of Master Jacob, fixed the liability at the larger sum, and the carriers appeal against these decisions.
The actual contract of carriage is not in evidence, but il is accepted that it was undertaken subject to CMR conditions — viz., the terms and conditions contained in the Schedule to the Carriage of Goods by Road Act 1965. Under these conditions, which represent the terms of an international convention of 1956, the carrier is responsible for any loss unless he can make good certain prescribed defences one of which is that the loss occurred through circumstances which he could not avoid and the consequences of which he could not prevent, which, in this case, he could not do. Thus, liability in principle is not in dispute but the measure of damages is. The measure of damages payable — called “compensation” — is laid down in article 23 of the scheduled Convention which contains the following:
“1. When, under the provisions of this Convention, a carrier is liable for compensation in respect of total or partial loss of goods, such compensation shall be calculated by reference to the value of the goods at the place and time at which they were accepted for carriage. 2. The value of the goods shall be fixed according to the commodity exchange price or, if there is no such price, according to the current market price, or, if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality … 4. In addition, the carriage charges, customs duties and other charges incurred in respect of the carriage of the goods shall be refunded in full in case of...
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