Compagnie Algerienne de Meunerie v Katana Societa di Navigatione Marittima, S.P.A. (Nizetti.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE ORMEROD |
| Judgment Date | 29 February 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0229-1 |
| Court | Court of Appeal |
| Date | 29 February 1960 |
[1960] EWCA Civ J0229-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Ormerod and
Mr. Justice Gorman
In the Matter of the Arbitration act 1950
In the Matter of an Arbitration
Mr. JOHN MEGAW, Q.C. and Mr. R.A. MACCRINDLE (instructed by Messrs. Ince & Co.) appeared on behalf of the Appellants (Claimants).
Mr. ASHTON ROSKILL, Q.C. and Mr. J.F. DONALDSON (instructed by Messrs. Edward Thompson & Hauser, London, S.W.4) appeared on behalf of the Respondents.
: This is an appeal from a judgment of Mr. Justice Diplock dated December 5th, 1958, upon a Special Case stated under section 21 sub-section 1 (b) of the Arbitration Act, 1950. The learned judge reversed the decision of the umpire, who had found in favour of the charterers a breach of contract under a charter party in the "Gencon" form dated May 17th, 1956.
The charterers had chartered from the shipowners the Italian S. S. "Nizetti", stated to be "now trading and expected ready to load under this charter about 24th May 1956". It was agreed that the said vessel shall proceed to Lattakia or so near thereto as she may safely get and lie always afloat and there load a full and complete cargo of two thousand seven hundred and fifty metric tons, 5 per cent, more or less, quantity in master's option to be declared on giving notice to shippers. Wheat in bulk, charterers to supply up to 5 per cent, of bagged cargo, as demanded by the master for safe stowage….and being so loaded the vessel shall proceed to one or two ports in charterers option out of Philippeville, Alger or Oran". The cancelling date was 31st May, 1956.
On the 23rd November, 1954, in pursuance of the boycott of Israel by Arab States, the Republic of Syria decreed that foreign vessels should not be allowed to anchor in Syrian ports if they had previously called at an Israeli port, but there was a discretion to remove the ban if owners of such vessels promised not to co-operate in future with Israel.
The charterers had simultaneously with the charter party made a contract of sale with a French Government organisation which controlled the import of grain into French North Africa, and to fulfil this contract they had made a contract with a grain supplier in Beirut to purchase at Lattakia 5,000 tons of Syrian grain, 2,750 tons of which was to be shipped on the "Nizetti". Their claim was for loss of profit on this transaction and for compensation for the loss of a sum of money which they had been required to deposit in French North Africa which they had forfeited on non-fulfilment of the French contract.
In February, 1955, the "Nizetti had discharged at Haifa in Israel. Between February, 1955, and May, 1956, she had passed four times through the Suez Canal and on each occasion the master had signed a declaration of future non-co-operation with Israel. The vessel was not substantially delayed on any of those occasions. Of those matters within the owners' knowledge the charterers did not know at the date of the charter party.
The vessel anchored in the roads at Lattakia at noon on May 28th and moved to a closer anchorage at 15.00 hours the same day. After she had moved, her log book was seen by a Syrian police officer and the master was told that free pratique would not be granted.
On the 29th May the charterers heard of the trouble and informed the owners, who cabled the master giving him instructions to sign a declaration of future non-co-operation with Israel. The master, being forbidden to land, did not receive the cable till the next day, and was never given free pratique, although on the 30th Hay he was permitted to land, received the cable and made the necessary declaration.
The Syrian Government had been considering prohibiting the export of grain to French North Africa, and in the latter part of the 29th May they imposed an embargo. This was released on May 31st in respect only of vessels which had already begun to load. On June 2nd the government imposed a total and final embargo which took effect from June 3rd. On June 5th the vessel sailed from Lattakia without having loaded anything. The charterers had their cargo ready to load on the 28th when the vessel arrived off Lattakia.
The charterers' contention is that, but for the defect of which the owners knew and they did not, the vessel would have gone through to the loading berth on Hay 28th in the normal course of events and would have loaded before the final embargo on June 3rd, having been stopped from May 29th to 31st. It is contended that the defect was one which put the owners in breach of their implied warranty of seaworthiness; alternatively, in breach of their implied warranty that the ship shall commence and carry out the voyage contracted for with reasonable diligence; these two undertakings being implied in all contracts of carriage by sea in the absence of express stipulation to the contrary.
The learned judge rejected these submissions but held that, since it lay solely within the power of the owners and outside the power of the charterers to obtain the permission to load, a term must be implied in the charter party to give business efficacy to the contract that the shipowners would at least exercise reasonable diligence to obtain the permission. He further held that, since the owners know and the charterers neither knew nor ought to have known at the elate of the charter party that permission might be needed, there was an implied warranty by the shipowners not only that they would use due diligence to obtain, but that they would in fact obtain, whatever permission was necessary within a reasonable time, and decided that such reasonable time had not expired when this embargo took effect on June 3rd. Accordingly, he held that the charterers had failed to establish any breach of warranty on the part of the owners before the charter party was frustrated on June 3rd by the embargo. The charterers maintain that the term implied by the learned judge is not stringent enough. The owners, while content to accept the finding in their favour, contend that in any event no special warranty should be implied, for the situation was covered by the obligation of the owners to provide the vessel "expected ready to load….about 24th May 1956" and by the undertaking admittedly implied to carry out the voyage with reasonable diligence.
So far as seaworthiness is concerned, the contention is that this is a case of a vessel suffering from a fault not found in normal vessels analogous to a defective boiler which made her unfit for the voyage. Comparison was made with ( Levy v. Costerton 4 Campbell, page 390). There, a ship was stipulated "all tight, staunch and strong, and well and sufficiently manned, tackled, apparelled and furnished with everything needful and necessary for the voyage". It was held that a bill of health was a thing within the meaning of that covenant and that the shipowners were in breach of that covenant having performed the voyage with some delay consequent upon the absence of a bill of health.
Reliance is also placed on ( Ciampa v. British India Steam Navigation Company, Limited 1915 2 King's Bench, page 774), where it was held that the ordinary perils to which cargo may be exposed may include such treatment of the ship and cargo (for example fumigation) as by the local laws of a port of call the cargo shipped may be exposed to. In that case, the ship to the knowledge of the owners, but not of the charterers, was foredoomed to inability to carry the contractual cargo and the vessel was held to have been unseaworthy when she took on her cargo of lemons at Naples.
This is an entirely different case and compares rather with Cunningham v. Dunn (1878) 3 Common Pleas Division, page 443, where the facts were not dissimilar, and Lord Justice Bram well said: "Counsel for the plaintiff contended that the charter party contained an implied warranty that the ship should be presented to the plaintiff in such plight and condition that she might lawfully take on board the proffered cargo. I know of no authority supporting such a proposition.
It cannot be said on the facts of this case that, as in Ciampa v. British India Steam Navigation Company Limited, the voyage was foredoomed to failure by reason of any lack of seaworthiness. In any event this warranty would not avail the charterers since there is no express warranty and the implied warranty according to the authorities attaches not on the approach voyage but when the vessel sails with her cargo. See Cohn v. Davidson (1877) 2 Queen's Bench Division, page 455, and Lord Justice Scrutton's judgment in ( A.E. Reed & Co. v. Page, Son & East, Ltd. 1927 1 King's Bench, page 743, at page 754) as to various stages of a voyage. The time of sailing with the cargo was never reached.
So far as the undertaking to carry out the voyage with reasonable dispatch is concerned, that obligation was performed. She was never an arrived ship, and all her approach voyage was carried out with reasonable diligence. A short measure of delay may be involved in the situation where a master had to make a declaration of non-co-operation before being allowed to load, but it is not true to say that the voyage was foredoomed to failure. It would be otherwise if the delay involved up to the time the vessel became an arrived ship were so great as to defeat the commercial purpose of the voyage.
There remains the express obligation contained in the words "expected ready to load. If this statement is not made honestly and on reasonable grounds, the charterer has his remedy. See ( Samuel Sanday & Co. v. Keighley, Eaxted & Co. 27 Commercial Cases, page 296, per Lord Sterndale, Master of the Rolls,...
To continue reading
Request your trial
-
Air New Zealand Ltd v BP Oil New Zealand Ltd and Others
...Stevedores and Dockers Society [1956] 1 WLR 585 at 599; Compagnie Algerienne de Meunerie v Katana Societa di Navigatione Marittima SPA [1960] 2 QB 115 at 123; Jamil Line for Trading and Shipping Ltd v Atlanta Handelsgesellschaft Harder & Co [1982] 1 Lloyd's Rep 481 at 483 cf Greene Wood ......
-
Air New Zealand Ltd v Bp Oil New Zealand Ltd & ORS
...Stevedores and Dockers Society [1956] 1 WLR 585 at 599; Compagnie Algerienne de Meunerie v Katana Societa di Navigatione Marittima SPA [1960] 2 QB 115 at 123; Jamil Line for Trading and Shipping Ltd v Atlanta Handelsgesellschaft Harder & Co [1982] 1 Lloyd’s Rep 481 at 483 cf Greene Wood & M......
-
Pirates... A Charterers' Peril of the Sea?
...at fn. 97 104Compagnie Algerienne de Meunerie v Katana Societa di Navigatione Marittima SpA (The Nizetti) [1960] 1 Lloyd‟s Rep 132, [1960] 2 QB 115 (CA) 105Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (The Hongkong Fir) [1962] 2 QB 26, [1961] 2 Lloyd‟s Rep 478 (CA) 106Pickup v T......