Compagnie Commercial Andre S.a. V. Artibell Shipping Company Limited And The Governor And Company Of The Bank Of Scotland
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 07 January 1999 |
| Court | Court of Session |
| Published date | 06 February 1999 |
| OPINION OF LORD MACFADYEN in the cause COMPAGNIE COMMERCIAL ANDRE S.A., Pursuers; against (FIRST) ARTIBELL SHIPPING COMPANY LIMITED AND (SECOND) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, Defenders: ________________ |
7 January 1999
Introduction
In September 1997 the pursuers, who are a company incorporated under the laws of France, chartered a vessel, the "Aliki A" ("the vessel"), from its owners, the first defenders, who are a company incorporated under the laws of Cyprus, to carry a cargo of sugar from Rouen to Umm Qasr in Iraq. In the event the voyage was abandoned. In this action the pursuers make a number of claims against the first defenders, as well as claims against the second defenders, the Bank of Scotland, who were the first defenders' bankers. In their defences, the first defenders state a number of preliminary pleas, raising issues of (i) jurisdiction, (ii) forum non conveniens, (iii) arbitration, (iv) relevancy and (v) competency. The second defenders also have a plea to the relevancy of the pursuers' averments so far as directed against them. After
sundry preliminary procedure, the action was appointed to debate on all the preliminary pleas. At the commencement of the debate the pursuers sought leave to amend to add a plea (plea-in-law 12) to the relevancy of the first defenders' defences in respect of the first conclusion. That motion was not opposed, and the summons was amended accordingly.
The Pleadings
It is convenient to begin by summarising the pursuers' pleadings so far as they set out the sequence of events which gave rise to their claims, and by identifying the claims which are made.
By voyage charterparty dated 12 September 1997 the pursuers chartered the vessel from the first defenders for the voyage from Rouen to Umm Qasr. The cargo was to be sugar in bags. The charterparty (No. 6/3 of process) was in the Sugar Charter-Party 1969 (Revised 1977) form with various amendments and additional clauses. The cargo was loaded on board the vessel at Rouen. In accordance with Clause 9 of the charterparty the pursuers were obliged to pay 95% of the agreed freight to an account designated in Clause 46 within three days of the signing of bills of lading and the balance on right and true delivery of the cargo. Clause 46 provided that the freight was to be paid to the second defenders' international department in Edinburgh, the account being identified in the following terms:
"ACCOUNT: USD ACCOUNT No. 90949 USD 1
IN FAVOUR OF: ARTIBELL SHIPPING COMPANY LIMITED
REFERENCE: MV "ALIKI A" / ANDRE C/P 12.09.97".
The pursuers paid the advance freight of US $396,176.12 to that account on or about 3 October. The vessel duly sailed for Umm Qasr. On 10 October it suffered a main engine breakdown and diverted to Cadiz for repairs, arriving there on 12 October. The voyage was resumed at about 20.00 hours on 16 October. Various other problems were encountered, culminating in the main engine thrust bearing sustaining major damage, preventing the vessel from proceeding under her own propulsion. The vessel was towed to Piraeus, arriving there at 20.40 hours on 25 October. Repair work began on 29 October, but was abandoned when it was estimated that the cost of repair would exceed the sound repaired value of the vessel. The first defenders then abandoned the voyage, giving notice to the pursuers that they were doing so by fax from their authorised managers dated 21 November. The pursuers had to make arrangements for the trans-shipment of the cargo.
On those averments of fact, the pursuers conclude first for payment by the first defenders of damages of US $1,000,000, with interest. That claim proceeds on the basis, set out in article 3 of the condescendence, that the first defenders were in the circumstances in breach of various obligations incumbent on them in terms of the charterparty. The averments of loss are set out in article 4 of the condescendence. At the outset of the debate it was indicated that the defenders challenged the sufficiency of the specification of those averments of loss, and that the pursuers recognised that there was force in that challenge. It was, however, agreed that that issue would not be debated, but that, if the action survived the other challenges made in the course of the debate, the specification of the averments of loss would require to be improved by amendment in due course.
The second and third conclusions are for repayment of the advance freight. The second conclusion is directed against the first defenders, and the third conclusion is directed, in the alternative, against the second defenders. Various averments are made in support of those conclusions. Before reaching the stage of identifying the party allegedly liable to repay the advance freight, alternative bases for repetition are set out in articles 5 and 6 of the condescendence. The first basis is the assertion that on a proper construction of the terms of the charterparty the freight was not earned until completion of the voyage, and that although there was provision in the charterparty for the advance freight not to be recoverable in certain events, none of those were applicable, and accordingly in the events which happened the advance freight was repayable. The alternative basis for repayment, put forward on an esto basis on the hypothesis (contrary to the pursuers' primary position) that the first defenders were not in breach of contract in abandoning the voyage, is the assertion that performance of the charterparty was in the events which happened frustrated. On that alternative assertion the pursuers seek to rely on the condictio causa data causa non secuta. In article 7 of the condescendence, the pursuers set out in averment their understanding of the contractual relationship between the first and second defenders. In short their contention is that the second defenders were assignees of the first defenders' right to receive the advance freight, and accordingly received it in their own right as assignees, and not as agents for the first defenders. On that basis the pursuers seek repetition from the second defenders.
The fourth, fifth, sixth and seventh conclusions may be taken together, as forming two pairs. The fourth and fifth conclusions concern a sum of US$25,448.15 said to be standing to the credit of the first defenders in Account No. 90949USDO1 (Aliki A Earnings Account) with the second defenders. The sixth and seventh conclusions concern a sum of US$157,942.77 said to be standing to the credit of the first defenders in Account No. 90949USDO3 (Retention Account) with the second defenders. The fourth and sixth conclusions seek declarator that the respective sums are the property of the pursuers, and the fifth and seventh conclusions seek payment by the first and second defenders to the pursuers of the sums at credit of the two accounts. The basis for those conclusions is to be found in averments of constructive trust in articles 9 and 10 of the condescendence.
Finally, in the eighth conclusion the pursuers seek payment by the second defenders of the sum of US$79,768.62 upon the basis of averments in article 11 of the condescendence imputing to the second defenders knowledge of circumstances which put the first defenders under a fiduciary obligation to repay the advance freight, and asserting that in that knowledge the second defenders acted in breach of constructive trust by debiting the Retention Account with the sum in question in payment of interest due to them by the first defenders.
Jurisdiction - Introduction
It is not disputed that the court has jurisdiction over the second defenders, who are domiciled in Scotland. It is by the first defenders that a plea of no jurisdiction is stated. In respect of them the pursuers aver:
"The court ... has jurisdiction over the first and second defenders. Reference is made to Rule 2(15)(a) of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982. Further the pursuers (sic) claims against the first defenders include claims for repayment of advance freight founded upon the condictio causa date causa non secuta, et separatim upon a constructive trust and breach thereof. Said matters relate to delict or quasi delict within the meaning of Rule 2(3) of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982. The harmful event in respect of which such claims arise occurred in Scotland where the fund is located, where the constructive trust was constituted and where the first defenders failed in breach of trust to repay the trust funds. This court accordingly has jurisdiction over said claims."
The first defenders refer to the Rules relied on by the pursuers, deny that the court has jurisdiction over them, deny that the matters which the pursuers claim fall within the scope of Rule 2(3) do so, and aver that there is no connection between the claims made by the pursuers against each of the defenders. In addition they aver:
"Separatim by Clause 40 of the Charter-Party ... the pursuer and this defender submitted to the exclusive jurisdiction of the English Courts in relation to the claim now pled against this defender."
In making his submissions in support of the first defenders' first plea-in-law, Mr Kinroy began by submitting that in the circumstances of this case the court does not have jurisdiction over the first defenders under Rule 2(3), then went on to submit the pursuers could not in the circumstances rely on Rule 2(15)(a). For the pursuers, Mr Glennie stated that the ground of jurisdiction on which they placed primary reliance was that under Rule 2(15)(a). It therefore seems to me to be convenient to begin by considering the submissions on that ground of jurisdiction.
Jurisdiction - Rule 2(15)(a)
Section 20 of the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act") provides inter alia that:
"(1) Subject to Parts I and II and to the following provisions of this Part, Schedule 8 has effect to determine in what...
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