Camellia Tanker Ltd S.A. v International Transport Workers' Federation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE JAMES |
| Judgment Date | 17 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0217-2 |
| Date | 17 February 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0217-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Templeman - London)
Lord Justice Megaw
Lord Justice James and
Lord Justice Geoffrey Lane
Mr. ALAN CAMPBELL, Q. C. and Mr. ROGER BUCKLEY (instructed by Messrs. Ince & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr. V. V. VEEDER (instructed by Messrs. Clifford-Turner & Co.) appeared on behalf of the Respondents the First Defendants.
Mr. MARK SAVILLE, Q. C. and Mr. V. V. VEEDER (instructed by Messrs. Clifford-Turner & Co.) appeared on behalf of the Respondent the Second Defendant.
This is an appeal from the order of Mr. Justice Templeman of 6th February, 1976, refusing the plaintiffs' motion for interlocutory injunctions against the first defendants and the second defendant. The injunction claimed is in the terms of the final relief sought, as set out in the statement of claim, delivered with the writ on 2nd February, 1976, in these terms: "An order restraining the defendants and each of them by themselves their officers servants or agents or howsoever otherwise from causing or permitting instructions directions or recommendations to be made or given to any person manning the lock gates at Queen Elizabeth II Dock to the effect that they should refuse to operate the said lock gates or that any requisite port facilities or services should be withheld so as to prevent the 'Camellia' from sailing".
An alternative suggested form of order was put before Mr. Justice Templeman on behalf of the plaintiffs. It is not referred to in the notice of appeal, but plaintiffs' counsel invited us to consider it as a possible alternative order. It is in these terms: "An order that the plaintiffs - the owners of the Vessel M. T. 'Camellia' now lying berthed at Eastham - are entitled to move the vessel from its berth through the lock gates to the open sea without any let or hindrance procured by the defendants to be implemented by members of its affiliated unions as to the due provision of all requisite service normally rendered at the port (including tug services) by employees of the Port Authority".
We are greatly indebted to the learned judge and to the other persons concerned for the time and effort devoted by them to enable us to he provided, at very short notice, with a note of the judge's reasons for judgment. Judgment was delivered by him, immediately on the conclusion of argument after a three days' hearing, on Friday 6th February. The appeal, specially expedited, came on for hearing on the afternoon of the same day. The 22 pages of the notes of theJudgment, approved by the judge, were placed before us when the hearing of the appeal refused on Monday, 9th February.
In the briefest outline, the way in which the judge dealt with the case was this. He found that what he described as "the balance of inconvenience" was "nicely balanced". He therefore thought it necessary to form what he described as a "provisional view of the facts, disputed or not". On his "provisional findings of fact", he held that, as a matter of law, on the provisions of the Trade Union and Labour Relations Act, 1974 ("the 1974 Act") there was no ground for granting an injunction against either of the defendants.
During the hearing of the appeal there was much discussion of the decision of the House of lords, American Cyanamid Co. v. Ethicon Ltd, (1975) Appeal Cases 396. In particular there was much debate whether that authority applies to a case such as the present case: especially in the light of a number of earlier cases, including, in the House of Lords itself, J. T. Stratford & Son Ltd. v. Lindley (1965) Appeal Cases 269, an authority on which counsel for the plaintiffs particularly sought to rely for certain of his submissions of law. We were also referred by counsel for the second defendant, all of whose submissions were adopted by counsel for the first defendants, to a number of recent judgments of this Court, in which the meaning and effect of the Cyanamid case have had to be considered.
In the end, I have not found it necessary for the decision of this appeal to add to the discussion of that authority, except for one brief observation. I do not believe that it was intended to overrule Stratford v. Lindley or to disapprove of the reasoning or the approach of the House of Lords in that case. Including what was done therein on the assessment of affidavit evidence. In any event, so far as concerns the burden and standard of proof in the present case, counsel for the defendants were prepared to accept, for the purposes of this appeal, a concession (if "concession" be the right description) which counsel for the plaintiffs made at the end of thesecond day's hearing of the appeal and which he confirmed in terms on the following day, as follows: "I am prepared to concede that in some way or other I have got to show that I have a good arguable case, at the beginning or the middle or the end".
The "good arguable case" has to be found, of course, in the material before the Courts not on speculation as to what other material might be before the Court on the trial of the action.
So I come to the background and relevant facts of the present case.
The motor tanker "Camellia" sails under the flag of Panama. She is owned by the plaintiff company, and is managed by a Hong Kong company called Wing On Enterprises. The vessel has a complement of 37. Those crew members were at the relevant time of a variety of nationalities, mostly Pakistani, Indian and Chinese. The 12 Indian or Pakistani members of the crew had each signed a form of agreement on joining the ship, one term of which was that he would have nothing to do with "International Transport Workers Federation, called otherwise I. T. F." That is the first defendants. The other crew members signed clauses in a similar form.
The reason for those clauses was this. I. T. F. is an organisation which, itself being a trade union for the purposes of the 1974 Act, comprises within its federation some 350 individual trade unions connected, in various countries, with the transport industry One of their objects is to try to ensure that seamen all over the world are paid what I. T. F. consider to be adequate wages for the jobs which they perform, and to prevent what I. T. F. consider to be exploitation of men serving in ships which fly flags of convenience; amongst which is numbered, in the view of I. T. F., the flag of Panama. The men in "Camellia" were being paid at rates substantially below those considered by I. T. F. to be proper. This was, no doubt, the reason for the inclusion by the plaintiffs of the term ofTheir crew agreements it was an attempt to prevent the sort of situation which in fact arose in this case.
On 14th January, 1976, "Camellia" berthed at the Queen Elizabeth II docks at Eastham, on the Manchester Ship Canal. She had carried a cargo of oil from Venezuela. The ship had finished her discharging by the evening of 20th January. But she still has not left the docks at Eastham. The plaintiffs say that the reason for that is the wrongful acts of the defendants. They say that the enforced stay is costing them hundreds, if not thousands, of pounds a day, in harbour dues, lost earnings and so on. They claim injunctions in the terms already mentioned. They believe, or hope, that if such Injunctions are granted, the vessel will be able to make her way to the sea and carry on with the business of earning money by carrying oil.
The evidence before this Court, as it was before Mr. Justice Templeman, was all on affidavit. The basic facts were scarcely in dispute. The principal deponent on behalf of the defendants was the second defendant himself, Mr. John Nelson. He is the Secretary of the Manchester Branch of the National Union of Seamen. He had been assigned by that Union to be an "I. T. F. Inspector" to check the seaworthiness of, and conditions of employment on board, vessels flying flags of convenience in his area. The National Union of Seamen is an "autonomous affiliate" of I. T. F.
Soon after the ship berthed a representative of I. T. F., Mr. Lawrence, came aboard. Events thereafter were deposed to by Mr. Pun-Lum Ip, who was at the time Second Officer in "Camellia". At some time thereafter he ceased to be Second Officer and became Shipping Assistant, representing the plaintiffs' interests on the instructions of the vessel's managers, Wing On. There are five affidavits sworn by Mr. Pun-Lum Ip in these proceedings.
Mr. Lawrence made a number of demands or requests of "Camellia's' Master, largely connected with incidents at Haifa in June, 1975, when the plaintiffs incurred the displeasure of the Israeli tradeunions and disciplinary action was taken by someone against some Philippine seamen, who had been members of the crew. Mr. Lawrence, it is said, threatened that I. T. F. would have the ship held at Eastham unless the owners took stops to help those seamen.
The next day Mr. Nelson, the second defendant, came on board with a solicitor, Mr. Casson. They spoke to the Master. Mr. Nelson was allowed to speak to the Indian and Pakistani crew members. They complained to him about having had to pay U. S. $400 each to an agency at Piraeus for the privilege of obtaining employment in "Camellia". There was at least a suggestion that this signing-on "commission" had found its way into the owners' pockets.
On 20th January, Mr. Nelson again came on board. He raised questions of the owners signing an I. T. F. agreement; of the increase of the crew's pay; of increased back-pay; and of the Piraeus "commission" to the supposed employment agency. He told the Master that the ship would not...
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