Colin and Shields v Weddel (W.) & Company
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,Lord Justice Denning,Lord Justice Romer |
| Judgment Date | 27 June 1952 |
| Neutral Citation | [1952] EWCA Civ J0627-1 |
| Date | 27 June 1952 |
| Court | Court of Appeal |
[1952] EWCA Civ J0627-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
LORD JUSTICE SINGLETON,
LORD JUSTICE DENNING, and
LORD JUSTICE ROMER.
Counsel for the Appellants: MR A. ROSKILL, Q.C., and MR R.R. LEECH, instructed by Messrs Wilfred Ellis & Co., Agents for Messrs Weightman, Pedder & Co., Liverpool.
Counsel for the Respondents: MR A.A. MOCATTA, Q.C., and MR H.A.P. FISHER, instructed by Messrs Coward, Chance & Co.
This is an appeal from a judgment of Mr Justice Sellers given on an Award in the form of a Special Case of the Board of Appeal of the Hide and Skin Shippers' and Agents Association, Incorporated.
The case has been very fully argued before us, and a number of points have been taken by learned Counsel on each side.
W. Weddel & Company, Ltd., entered into a contract of sale with Colin & Shields on the 12th June, 1951. W. Weddel & Company, Ltd., were the sellers, and Colin & Shields were described as the buyers. The contract was, on the face of it, a contract for the sale of ox hides, but the ox hides were not in this country; they were in South America; and in order that the parties might know where they stood a contract was entered into which introduced the official contract form drawn up by the International Council of Hide and Skin Sellers' Associations and the International Council of Tanners, and there was used what is headed "C.I.F. Contract for Hides", Form "11 International." I am not sure that the introduction of that form simplified the position as between the buyers and the sellers; indeed, as often happens, the introduction of some of the clauses of that printed form appears to make the position as between buyers and sellers not easy to determine, having regard to the specific terms of the contract, Document No. 1, the typewritten part, which became Clause 1 of the contract between the parties.
That which is Document No. 1, or Clause 1, is in these terms – it is addressed to Colin & Shields and dated the 12th June, 1951, and it is signed by W. Weddel & Company, Ltd., and at the foot of it there is the acknowledgment of Colin & Shields – "We have this day sold to you, the following. 1000 (one thousand)W/S Anglo Pelotas Frigorifico Ox Hides estimated shipping average 26/28 Kilos @ 34d. (Thirty four pence) per 1b. C. & F. Liverpool Shipping weights. Any Export Charges, Duties &/or Exchange Taxes imposed after and including date of contract to be for Buyers account. Shipment. By steamer &/or steamers within three months subject freight and export licence obtainable. Freight. Basis 163/- (One hundred & sixty three shillings) per ton of 2240 1bs. Any variation for Buyers account. Payment. By cash upon presentation of the shipping documents in London on or before arrival of the steamer, at Buyers option. Insurance. Marine and War Risk Insurance to be covered by Sellers for buyers account. Arbitration. Liverpool."
A dispute did arise; an Arbitration was held in Liverpool, and later, on further tender of documents, another Arbitration followed by an appeal to the Appeal Board, and from the decision of the Appeal Board the case went before Mr Justice Sellers.
The first thing I would point out about the contract itself is that it is a contract C. & F. Liverpool; thus shipment by steamer or steamers should be shipment to Liverpool, and by a ship which was to sail to Liverpool; freight basis 163s. Od., again, is freight for the voyage to Liverpool, so I should assume. The same applies to insurance.
When one goes to Document No. 2, the printed form, difficulties arise at once. Clause 2 of that document deals with shipment, and it provides: "With all conditions as per Bill of Lading by steamer and/or steamers direct and/or indirect, with liberty to tranship. The words steamer and/or steamers are intended to include any full-powered primarily engine-driven vessel. The Bill of Lading to be considered proof of date of shipment in the absence of conclusive evidence to the contrary. Declaration of shipment to be made with reasonable despatch, and by cable at Sellers' expense if required."
Clause 3 covers payment, and the marginal note is "Payment (Supplementary)." It reads: "Should vessel be officially reported lost payment becomes due on first presentation of Documents in accordance with the terms of payment set forth in this contract. Documents to consist of invoice, and where usual, weight certificate and/or scale weights to be attached, full set of Bills of Lading or satisfactory guarantee for missing copies, and/or Ship's Delivery Order (the latter to be counter-signed by Banker, Shipbroker, Captain, or Mate, if so required) and Policy or Certificate of Insurance. Should Bill of Lading and/or Insurance Policy not be supplied, Buyers to be put in the same position as if they had been in possession of such documents. Sellers to be responsible for anyextra expenses incurred through late tender of documents." That is all I need read for the moment.
In fact, when the goods were shipped in the "Devis" at the port of Rio Grande, they were shipped in a ship bound for Manchester instead of in a ship bound for Liverpool, and the Bill of Lading which bears date the 22nd July, 1951, engages the ship to carry those goods, 1,000 hides, "to be delivered from the ship's tackle where the ship's responsibility shall cease" at the port of Manchester. The ship, the "Devis", in fact made the journey to Manchester. On the 30th July the sellers had made a declaration of shipment; on the 24th August, 1951, the sellers told the buyers verbally that theBill of Lading had been wrongly made out by the Shipping Company, Lamport & Holt, Ltd., for delivery to Manchester. Some time between the 24th and 27th August the sellers told the buyers that they had succeeded in getting the owners of the S.S. "Devis" to clause the Bill of Lading in transit to Liverpool, and there appear upon the Bill of Lading the words "In transit to Liverpool" initialled by someone on behalf of the ship. On the 27th August the sellers tendered to the buyers documents which included the Bill of Lading, an invoice and a Certificate of Insurance for the voyage from Brazil to a United Kingdom port. The buyers rejected the goods and claimed Arbitration. On the 28th August the "Devis" arrived in the Mersey, and she proceeded up the Ship Canal to Manchester, arriving in Manchester on the 31st August. She commenced discharging on the 1st September, and finished discharging on the 7th September, and she then sailed for Glasgow. While she was at Manchester there were discharged the 1,000 hides which had been carried in her from Rio Grande to Manchester.
The Arbitration called for by the buyers took place, and the Arbitrators awarded that the Documents tendered were not documents as called for by the contract, and that the buyers were entitled to reject them. There was no appeal from that Award. On the 13th October the 1,000 hides were loaded at Manchester on a dumb barge, which left Manchester on the 15th October for Liverpool, and that barge discharged its cargo of hides on the 17th October.
On the 15th October the sellers wrote to the buyers regarding these goods: "Referring to our conversation over the telephone this morning, we understand from theShipping Company that the above Hides are now due at their final destination – Hide Berth, North Carriers Dock, Liverpool. We, therefore, now have pleasure in presenting the documents comprising Shipping Company's Release, Insurance Certificate, Specification, Invoice, and shall be pleased to receive your cheque for £8,690. 6s. 1d. in exchange for same. Yours faithfully, W. Weddel & Co., Ltd."
Those documents which were tendered on the 15th October are referred to in the Schedule to the Case, and are before us. The most important is that which is referred to in the letter as the Shipping Company's Release. It has been spoken of throughout the hearing of this appeal as a delivery order, and it is the contention of one side that it is properly within the description of the words "Ship's Delivery Order" in the printed form of contract. It is a document which is headed with the name of the shipowners, Lamport & Holt, Ltd.; it has "Rio Grande" on the left-hand side; it has a reference to Bill of Lading No. 7, which is the number of the Bill of Lading in this case, and it has on its right-hand side at the head "Royal Liver Building, Liverpool, 11th October, 1951." It is addressed to the Master Porter of the Hide Berth in the North Carriers Dock, Liverpool, and it reads: "Deliver to Messrs Colin & Shields, the following Goods", describing them – "1000 (One thousand) Wet Salted Ox Hides ex s.s. 'Devis'. Lamport & Holt Line Limited", with a signature below. One of the questions of importance in this case is as to whether or not that document can properly be described as a Ship's Delivery Order. I have read it, and I shall refer to it again by-and-by.
Let me say at this moment at the date of that document, the 11th October, 1951, the hides were stillin Manchester. The Master Porter at the Hide Berth in the North Carriers Dock, Liverpool – if there is such a berth; I suppose there must be – had never seen those goods. I do not know whether he had heard of them, or how that document came about other than what is set out in the Case.
It is expressly found in the Case that no communication in writing passed between the sellers and the Lamport & Holt Line from the date of the Award on the 12th September to the date of the document which is described in the Case as the Shipping Company's Release.
The buyers replied to that letter returning the documents covering the above-mentioned shipment and adding: "It is our opinion that you are not entitled to tender a Delivery Order which has been exchanged by the Shipping Company for a Bill of Lading,...
To continue reading
Request your trial
-
Toepfer v Lenersan-Poortman N.v
... ... Justice Sellers in Colin & Shields v. Weddel & Co. Ltd. (1952) I Lloyd's Reports ... w. Weddel & Co. Ltd. referred to above; and, thirdly, by the ... ...
- Waren Import Gesellschaft Krohn & Company v Internationale Graanhandel Thegra N.v (Marigo R)
- Tricerri Ltd v Crosfield and Calthrop Ltd