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Chandris v Isbrandtsen Moller Company Inc. (Evgenia Chandris.)

The Law Reports Cited authorities 29 Cited in 119 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date1950
Date1950
Year1950
CourtCourt of Appeal
[KING'S BENCH DIVISION AND COURT OF APPEAL] CHANDRIS v. ISBRANDTSEN-MOLLER CO. INC. 1950 Feb. 8, 9, 10; Mar. 6. 1950 July 19, 20. Devlin J. Tucker, Cohen and Asquith L.JJ.

Shipping - Charterparty - Cargo to consist of lawful general merchandise excluding acids, explosives, arms, ammunition “or other dangerous “cargo” - Construction - Ejusdem generis rule - Turpentine loaded with knowledge of master - Breach of charterparty - Dangerous cargo - Vessel ordered to unload in river into barges - Resulting delay - Damages for detention - Demurrage - Jurisdiction of arbitrator to award interest.

By s. 4, sub-8. 6, of the United States Carriage of Goods by Sea Act, 1936 (which is in identical terms with art. IV, r. 6, made under the Carriage of Goods by Sea Act, 1924): “Goods of a … dangerous nature to the shipment whereof the … master … has not consented, with knowledge of their nature and character, may … be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any”.

A voyage charterparty to which s. 4, sub-s. 6, of the United States Carriage of Goods by Sea Act, 1936, applied, stipulated that the cargo was to consist of lawful general merchandise, “excluding “acids, explosives, arms, ammunition or other dangerous cargo”, and contained a demurrage clause. At Jacksonville, U.S.A., the master consented to the shipment of 1,546 tons of turpentine with knowledge of its nature and character, but did not thereby waive any of the rights or remedies of the owner in respect of the shipment; nor had he any authority from the owner to do so. The vessel reached Liverpool on May 25, 1941, and began discharging in dock on May 27. On May 29, because of the dangerous nature of the turpentine, she was ordered by the Port Emergency Committee to move out of the dock and to unload in the Mersey into barges, with the result that the unloading took sixteen days longer than it would otherwise have taken. On a claim by the shipowner for demurrage, damages for the sixteen days' detention of the vessel at Liverpool, and interest,

Held, (1.) that the general words in a commercial document were, not less than in the case of a document such as a settlement, prima facie to be construed as having their natural and larger meaning, and not to be limited to things ejusdem generis with those previously enumerated unless there were something in the document showing an intention so to limit them, that the charterparty showed no such intention, and therefore, the words “or other dangerous cargo” were to be construed as including turpentine: Anderson v. Anderson [1895] 1 Q. B. 749 (concerning a settlement), applied.

(2.) That there could not be implied into the second part of s. 4, sub-s. 6, of the United States Carriage of Goods by Sea Act, 1936 (concerning the case where the dangerous goods have been shipped with tho master's consent), a provision, in contrast to that in the first part, that a shipper was not liable for damage resulting from the shipment of dangerous goods to which the master had consented.

(3.) That there had been a breach of the charterparty by the charterers since, on the construction of that document as a whole, it prohibited the shipment of dangerous cargo to which the master had consented as well as that to which he had not.

(4.) That, notwithstanding this breach, the damages for the additional sixteen days spent unloading by reason of the discharge having to be made in the river were governed by the demurrage clause, because the shipowner had affirmed the contract and treated the dangerous cargo as coming within the contract description (subject to his right to damages): with the result that all the clauses of the charterparty applied thereto: Inverkip S.S. Co. Ld. v. Bunge & Co. [1917] 2 K. B. 193, followed. A/S Reidar v. Arcos Ld. [1927] 1 K. B. 352, explained.

(5.) That the arbitrator had no jurisdiction to award interest: Podar Trading Co. Ld., Bombay v. Francois Tagher, Barcelona [1949] 2 K. B. 277, followed.

On appeal, only the question of the arbitrator's power to award interest remaining in issue,

Held, that the power of an arbitrator to award interest was derived from the submission to him, which impliedly gave him power to decide “all matters in difference” according to the existing law of contract, exercising every right and discretionary remedy given to a court of law; that the Law Reform (Miscellaneous Provisions) Act, 1934, which repealed s. 28 of the Civil Procedure Act, 1833, was not concerned with the powers of arbitrators; and that the plaintiff was entitled to the interest provisionally awarded by the arbitrator.

Podar Trading Co. Ld., Bombay v. Francois Tagher, Barcelona [1949] 2 K. B. 277, overruled on this point.

Observations of Jervis C..J. in Edwards v. Great Western Ry. Co. (1851) 11 C. B. 588, and of Lord Salvesen in Ram Dutt Ramkissendass v. E. D. Sassoon & Co. [1929] W. N. 27; 98 L. J. (P. C.) 58, applied.

SPECIAL CASE stated by an arbitrator.

A voyage charterparty dated November 22, 1940, made between J. D. Chandris, as shipowner, and the Isbrandtsen-Moller Co. Inc., as charterers, provided in cl. 26 that the cargo was to “consist of lawful general merchandise, excluding acids, explosives, arms, ammunition or other dangerous cargo”. By cl. 15, “Should the cargo not be delivered to vessel at loading ports and/or discharged at port of destination within the specified time, for each and every day over and above the said lay days, charterers are to pay, day by day, the sum of 100l.

British Sterling demurrage”. The charterparty incorporated the provisions of s. 4, sub-s. 6, of the United States Carriage of Goods by Sea Act, 1936, by which: “Goods of an inflammable, explosive or dangerous nature to the shipment whereof the … master … has not consented, with knowledge of their nature and character, may … be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any”.

The facts found by the arbitrator were as follows: in March, 1941, the Evgenia Chandris loaded under the voyage charter at Jacksonville, U.S.A., a general cargo which included 1,546 tons of turpentine. Turpentine was a dangerous cargo. The master consented to its shipment with knowledge of its nature and character, but did not thereby waive any of the rights or remedies of the owner in respect of the shipment, nor had he any authority from the owner to do so. The vessel arrived at Liverpool, the port of discharge, on May 25, 1941, and began discharging in dock on May 27. On May 29, because of the dangerous nature of the turpentine, she was ordered by the Port Emergency Committee to move out of the dock and to unload in the Mersey into craft, with the result that the discharge took sixteen days longer than it would otherwise have done. The time taken in loading and unloading exceeded the stipulated lay days by twenty-two and a-half days.

In the arbitration the shipowner claimed demurrage and damages. The arbitrator held that turpentine was a dangerous cargo within the meaning of cl. 26 of the charterparty; that the shipment of the turpentine was a breach of charterparty although it was with the knowledge and consent of the master and the charterparty incorporated s. 4, sub-s. 6, of the United States Carriage of Goods by Sea Act, 1936; that the shipowner was entitled to 79l. 5s. extra expenses incurred by reason of the discharge having to be made in the river; 7,529l. 15s. damages for detention for the sixteen days (in addition to six and a-half days' demurrage), and 170l. interest; and that the owner's claim was not limited to the figure fixed for demurrage by cl. 15 of the charterparty. The charterers appealed.

The questions for the decision of the court were:— (1.) Was the turpentine a dangerous cargo within the meaning of cl. 26 of the charterparty? (2.) Was the shipment of the turpentine with the knowledge and consent of the master, having regard to the incorporation in the charterparty of s. 4, sub-s. 6, of the United States Carriage of Goods by Sea Act, 1936, a breach of the charterparty? (3.) Was the claimant entitled to damages for detention in respect of the sixteen additional days' unloading, or only to demurrage at the rate fixed by cl. 15? (4.) Had the arbitrator jurisdiction to award interest?

A. J. Hodgson and Boyes for the charterers.

Mocatta and M. R. Holman for the shipowner.

Cur. adv. vult.

March 6. DEVLIN J., reading his judgment, stated the facts set out above and continued: I can decide this last question (whether the arbitrator had jurisdiction to award interest) at once. In Podar Trading Co. Ld. v. TagherF1 the Divisional Court answered the same question in the negative. Whether or not I am technically bound by a decision of the Divisional Court, I propose to follow this one as a recent and authoritative pronouncement on the law, and I have not therefore invited argument on it.

The first question (whether turpentine was & dangerous cargo within the meaning of cl. 26 of the charterparty) depends on the construction of that clause, which provides: “Cargo to consist of lawful general merchandise, excluding...

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