Cummins Engine Company Ltd v Davis Freight Forwarding (Hull) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE BRANDON,LORD JUSTICE O'CONNOR |
| Judgment Date | 20 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0720-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0335 |
| Date | 20 July 1981 |
[1981] EWCA Civ J0720-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. Justice Mocatta sitting in the Commercial Court)
Royal Courts of Justice
Lord Justice Eveleigh,
Lord Justice Brandon
and
Lord Justice O'Connor
81/0335
1978 C. No. 4445
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and
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Mr. MURRAY PICKERING (instructed by Messrs. Clyde & Co., Guildford) appeared on behalf of the Appellants (First Defendants).
Mr. G.D. KINLEY (instructed by Messrs. Wm. A. Merrick & Co.) appeared on behalf of the Respondents (Second Defendants).
Mr. GAVIN KEALEY (instructed by Messrs. Sinclair Roche & Temperley) appeared on behalf of the Respondents (Third Defendants).
Mr. RICHARD AIKENS (instructed by Messrs. Ince & Co.) appeared on behalf of the Respondents (Fourth Defendants).
( )
I will ask Lord Justice Brandon to deliver the first judgment.
This appeal arises in an action in the Commercial Court in which Cummins Engine Company Ltd. are the plaintiffs, Davis Freight Forwarding (Hull) Ltd. are the first defendants, Charterway Shipping B.V. are the second defendants, R. C.A. Van der Graaf is the third defendant, and D. Boers B.V. are the fourth defendants. I shall refer to these five parties as Cummins, Davis, Charterway, Graaf and Boers respectively.
Cummins is an English company which manufactures and exports diesel engines. Davis is another English company engaged in, among other things, the carriage and forwarding of goods from the United Kingdom to the Continent. Charterway and Boers are Dutch companies, and Graaf is a Dutch trader, all engaged in either the forwarding or the carriage of goods by road in the Netherlands.
The appeal raises questions with regard to the true meaning and effect of certain provisions of the Convention on the Contract for the International Carriage of Goods by Road made at Geneva on the 19th May 1956, which has been part of English law since October 1967. The Convention is commonly known as CMR and I shall refer to it by those initials.
The facts giving rise to the action are these. At about the end of May 1977 Cummins and Davis entered into a contract under which Davis was to carry, or arrange the carriage of, 14 diesel engines from Shotts in Lanarkshire to Amsterdam. The goods were subsequently loaded by Davis at Shotts into a road trailer belonging to them. They were accompanied by various documents, including invoices and a consignment note of the kind prescribed by Articles 4–6 of CMR. In that consignment note Cummins were shown as the sender, N.V. Nederlandsche Ford of Amsterdam as the consignee, and Davis as the carrier. After the goods had been loaded into the trailer by Davis, a tractor unit belonging to them hauled the trailer by road to Hull. There Davis arranged for the on-carriage of the trailer by sea to Europoort at Rotterdam, where the trailer, and the 14 diesel engines contained in it, arrived safely on the 13th June 1977.
There remained the further on-carriage of the goods in the trailer to Amsterdam. Davis asked Charterway to arrange this. Charterway asked Graaf to do the job. Graaf in turn asked Boers to do it. In the result, Boers sent a tractor unit to Europoort and collected the trailer and the accompanying documents from there. Boers' tractor unit, with the trailer in tow, set out for Amsterdam. Unfortunately, at about 3 a.m. on the morning of the 14th June 1977, the tractor and trailer crashed over the side of a bridge at Leiden. As a result of the crash the trailer, and the goods contained in it, were severely damaged by fire. The accompanying documents, however, were recovered, although they too had been partly damaged by fire. Those documents included the CMR consignment note.
On the 7th June 1978, very shortly before the expiry of the one-year time limit for claims prescribed by Article 32 of CMR, Cummins began the action against Davis, Charterway, Graaf and Boers in the Commercial Court to which I referred earlier. The writ was subsequently served on Davis, the only defendants within the jurisdiction, but no attempt appears to have been made to obtain leave to serve notice of the writ on the other three defendants outside the jurisdiction in the Netherlands. Points of Claim, Points of Defence, and Further and Better Particulars of either pleading, were served between the 18th May 1979 and the 3rd July 1980. The amount claimed by Cummins against Davis for the damage to the diesel engines was £41,452.89 with interest.
Meanwhile, on the 25th February 1980, Davis had made an ex parte application supported by affidavit for leave to serve out of the jurisdiction, in the Netherlands, Third Party Notices on Charterway, Graaf and Boers, in which Davis claimed in each case an indemnity in respect of any liability to Cummins which might be found against them in the main action. The ex parte application was heard by Mr. Justice Goff, who acceded to it and made an order giving Davis the leave for which they had asked. Third party notices were subsequently served on Charterway, Graaf and Boers at their respective addresses in the Netherlands.
On the 8th August 1980 Boers, on the 25th September 1980 Graaf, and on the 29th January 1981 Charterway, issued summonses supported by affidavits in which they asked that the ex parte order of Mr. Justice Goff made on the 25th February 1980, and the service of the Third Party Notices issued and served pursuant to that order, should be set aside. The three summonses came on for hearing together before Mr. Justice Mocatta on the 6th March 1981. Because they involved questions on the meaning and effect of an international convention, the learned judge decided to give judgment in open court. He found against Davis on all three summonses, and made orders setting aside the order of Mr. Justice Goff of the 25th February 1980 and the service of the three Third Party Notices issued and served pursuant to that order. He gave Davis leave to appeal against his orders and it is with that appeal that we are now concerned.
The Carriage of Goods by Road Act, 1965, was passed on the 5th August 1965 and came into force on the 19th October 1967. It provides BO far as material as follows:—
S. 1. Subject to the following provisions of this Act, the provisions of the Convention on the Contract for the International Carriage of Goods by Road (in this Act referred to as 'the Convention'), as set out in the Schedule to this Act, shall have the force of law in the United Kingdom so far as they relate to the rights and liabilities of persons concerned in the carriage of goods by road under a contract to which the Convention applies.
S. 5(1) Where a carrier under a contract to which the Convention applies is liable in respect of any loss or damage for which compensation is payable under the Convention, nothing in section 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935, section 16(1)(c) of the Law Reform ( Miscellaneous Provisions) Act (Northern Ireland) 1937, or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 shall confer on him any right to recover contribution in respect of that loss or damage from any other carrier who, in accordance with article 34 in the Schedule to this Act, is a party to the contract of carriage.
(2) The preceding subsection shall be without prejudice to the operation of article 37 in the Schedule to this Act.
S. 14(2) The persons who, for the purposes of this Act, are persons concerned in the carriage of goods by road under a contract to which the Convention applies are—
( a) the sender,
( b) the consignee,
( c) any carrier who, in accordance with article 34 in the Schedule to this Act or otherwise, is a party to the contract of carriage,
( d) any person for whom such a carrier is responsible by virtue of article 3 in the Schedule to this Act,
( e) any person to whom the rights and liabilities of any of the persons referred to in paragraphs (a) to (d) of this subsection have passed (whether by assignment or assignation or by operation of law).
The effect of section 5, subsections (1) and (2), of the Act is to exclude the statutory provisions relating to contribution and indemnity between persons jointly or concurrently liable for the same loss or damage in force in the three parts of the United Kingdom, so leaving the way clear for the operation of the special provisions of CMR relating to those matters to which I shall be referring later. The reference in section 5 to section 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935 must be taken today to be a reference to the corresponding provisions of the Civil Liability (Contribution) Act 1978. This Act, however, did not come into force until the 1st January 1979, well after the casualty here concerned.
CMR, as scheduled to the Act of 1965, is divided into seven chapters. Chapter I, containing Articles 1 and 2, is entitled "Scope of Application". Article 1, paragraph 1 provides:—
This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country, irrespective of the place of residence and the nationality of the parties.
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