Dimskal Shipping Company S.A. v International Transport Workers Federation (No. 2) (Evia Luck)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE McCOWAN,SIR ROGER ORMROD |
| Judgment Date | 11 December 1989 |
| Neutral Citation | [1989] EWCA Civ J1211-4 |
| Judgment citation (vLex) | [1989] EWCA Civ J1211-1 |
| Docket Number | 89/1236,89/1191 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1989 |
[1989] EWCA Civ J1211-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr. Justice Phillips)
Royal Courts of Justice
Lord Justice Neill
Lord Justice McCowan
and
Sir Roger Ormrod
89/1191
MR. I. B. GLICK, Q.C. (instructed by Messrs Denton Hall Burgin and Warrens) appeared on behalf of the Appellants/Plaintiffs.
MR. M. BURTON, Q.C. and MR. P. LOWENSTEIN (instructed by Messrs Holman, Fenwick & Willan) appeared on behalf of the Respondents/Defendants.
This is an appeal by Dimskal Shipping Company SA (Dimskal) against the order of Mr. Justice Phillips sitting in the Commercial Court of the Queen's Bench Division dismissing the claim by Dimskal for a declaration, damages and other relief against The International Transport Workers Federation (ITF).
The decision of the judge is now reported in the name "The 'Evia Luck'" (No. 2) in [1989] 1 Lloyds LR 166.
The facts of the case were agreed between the parties. These agreed facts are set out in full in the judgment below at pp.168 to 171. For the purposes of this appeal, however, I can summarise the relevant facts quite shortly.
Dimskal were incorporated under the laws of Panama. At all material times they have been the owners of the vessel Evia Luck flying the Panamanian flag.
ITF is an international federation of trade unions. It is based in London. At all material times the Swedish Seamens' Union (SSU) and the Swedish Transport Workers Union (STWU) were affiliated members of the ITF.
Since the 1920s the ITF has pursued a campaign against vessels flying flags of convenience. In 1948 Panama was identified by the ITF Congress as having a registry of convenience. Both the STWU and the SSU have formally decided to support the flags of convenience campaign.
At all material times prior to 1 March 1983 the Evia Luck was manned by 10 Greek nationals under contracts of employment governed by Greek Law and by 20 Filipino nationals under contracts of employment governed by Philippine law. The vessel was managed from Greece.
The present appeal is concerned only with the 20 Filipino nationals.
On 28th February 1983 the Evia Luck berthed at Uddevalla in Sweden and commenced loading. At that time the vessel was chartered to the Shipping Corporation of India.
Later that day Mr. Alf Akesson, an official of the STWU working at Uddevalla and on this occasion acting as an agent of the ITF, boarded the Evia Luck. He did so pursuant to the flags of convenience campaign. He informed the master, officers and crew that the vessel would be 'blacked' unless ITF employment contracts were entered into by Dimskal with the crew.
On 1 and 2 March 1983 Miss Lili-Anne Skoogh, an employee of the SSU who at all material times in March 1983 acted in connection with the events with which this case is concerned both as an agent of the ITF as well as of the SSU, boarded the vessel pursuant to the flags of convenience campaign.
In the course of her visits on these two days Miss Skoogh made the following demands:
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(a) that a sum, representing all crew members wages calculated in accordance with the ITF wage scales and back-dated to the commencement of the employment of the crew members, should be paid to the ITF in London;
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(b) that a bank performance guarantee in the sum of US$200,000 should be provided to the ITF at a bank in London nominated by the ITF;
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(c) that deeds of undertaking should be provided by Dimskal to the effect that Dimskal would not institute proceedings against the Filipino nationals who were members of the crew of the vessel in the Republic of the Philippines or elsewhere;
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(d) that an ITF special agreement should be entered into by Dimskal;
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(e) that ITF employment contracts should be provided by Dimskal for all members of the crew of the vessel;
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(f) that a document declaring that Dimskal were complying voluntarily with the ITF's demands should be signed;
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(g) that letters of indemnity should be provided for all members of the crew.
Miss Skoogh threatened that if these demands were not met the vessel would be blacked.
As a result of these threats of blacking and induced by the threats, on or about 2 March 1983 Dimskal orally agreed to pay the sums demanded and to sign certain of the required documents. This oral agreement was described in the agreed facts as 'the agreement for payment'.
On 4 March 1983 Dimskal paid the sum of US$103,463 to the ITF's account in London. This sum represented the back-dated wages for the Filipino nationals. In addition on some later date Dimskal paid further sums to the ITF as follows:
| ITF Entrance Fees | $460.00 |
| ITF Membership fees | $920.00 |
| ITF Welfare Fund contribution | $6900.00 |
By 4 March 1983, however, Dimskal had not completed the execution of the required documents. Because of this failure stevedores at Uddevalla who were members of the STWU took industrial action and refused to continue loading the Evia Luck.
On 7 March 1983, induced by the blacking and the threats previously referred to, Dimskal complied with the ITF's demands and signed the required documents and also other contractual documents. These documents consisted of the following:
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(1) A document on a printed form headed "Special Agreement". This special agreement was made between the ITF and Dimskal in respect of the Evia Luck. The agreement included (inter alia) an undertaking by Dimskal to employ all seafarers serving on the vessel in accordance with the terms of the current ITF Collective Agreement on World Wide Trading. It was provided that the special agreement should remain in force for a period of 12 months and thereafter from year to year unless terminated.
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(2) An agreement whereby Dimskal agreed that they would not take any legal proceedings against either the ITF or its officials or the SSU or its officials or against any of the ITF affiliated unions as a result of its industrial action against the vessel. This document also incorporated an agreement that it had been entered into between the parties of their own free will and without any duress.
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(3) Letters of indemnity issued to each crew member confirming that no disciplinary measures or legal proceedings would be instituted against him in connection with his service aboard the vessel.
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(4) A letter of undertaking whereby it was provided that "in consideration of the cessation of industrial action at the Port of Uddevalla in respect of the ship Evia Luck" Dimskal would give certain undertakings.
I shall have to refer in more detail to this letter of undertaking later.
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(5) 19 contracts of employment between "the shipowners and the individual shipowners and the individual Filipino seamen." These contracts of employment were on the standard ITF form.
Also on 7 March 1983 Dimskal procured the issue of a performance bond by Grindlays Bank Ltd. This performance bond was to support the letter of undertaking referred to in (4) and was in the sum of US$200,000. The guarantee was to last for a maximum period of 4 months and it was provided that it should be construed and interpreted in accordance with English law.
The letter of undertaking dated 7 March 1983 (see (4) above) contained a number of provisions. In essence it provided that Dimskal should within 30 days procure individual ITF Seamen's employment contracts to be completed in accordance with the terms and conditions of the ITF Collective Agreement for each member of the crew of the Evia Luck and that Dimskal should then arrange for these contracts to be duly registered in the Philippines. Paragraph 7 of the letter of undertaking was in these terms:
"This undertaking shall be legally enforceable within the meaning of s.18 of the Trade Union and Labour Relations Act 1974, and be subject to English law and the jurisdiction of the English courts."
Following the execution of the documents the Evia Luck was able to sail from Uddevalla. After her departure Dimskal forwarded the new contracts of employment for the Filipino crew to their agents in the Philippines and asked them to obtain registration of them. The agreed facts recorded that they took this action because the ITF would otherwise have called upon the performance bond issued by Grindlays Bank. The contracts were in due course registered with the National Seamen's Board of the Ministry of Labour of the Republic of the Philippines, which is now known as the Philippine Overseas Employment Administration.
On 19 June 1985 Dimskal issued a writ in the Commercial Court. The writ was endorsed with Points of Claim which sought declaratory and other relief including damages and an order for repayment of the four sums (which I have identified earlier amounting in total to US$111,743) which had been paid by Dimskal to the ITF. This sum was claimed as money had and received by the ITF to Dimskal's use.
The action came on for hearing before Mr. Justice Phillips in June 1988. Before the judge Dimskal sought declarations that they had lawfully avoided on the ground of duress all the contracts that they had concluded in consequence of the actions by the ITF. The judge decided, however, that he should not make any declarations in respect of contracts concluded between Dimskal and the Filipino crew members as the crew members were not before the court.
In addition Dimskal claimed before the judge:
(1) Restitution of the four sums amounting to US$111,743 on the grounds:
(a) that the...
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