Federal Commerce and Navigation Company Ltd v Tradax Export S.A. (Maratha Envoy)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE SHAW |
| Judgment Date | 25 November 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1125-3 |
| Docket Number | 1973 F. No. 506 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 1976 |
[1976] EWCA Civ J1125-3
The Master of The Rolls
(Lord Denning)
Lord Justice Stephenson and
Lord Justice Shaw
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Royal Courts of Justice,
Queen's Bench Division
Commercial Court
MR. A. DIAMOND.Q.C. and MR. A. COLMAN (instructed by Messrs. Holman, Fenwick & Willan Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. C. STAUGHTON.Q.C and MR.N. LEGH-JONES and MR. D. GRACE (instructed by Messrs. Richards Butler & Co., Solicitors, London) appeared on behalf of the Defendants (Respondents).
This is another case about an "arrived ship". She was the "Maratha Envoy" - a large bulk-carrier. The disponent owners were the Federal Commerce and Navigation Co. Ltd. The charterers wore Tradax Export S.A. In January 1970 she was engaged on a voyage charter to carry a cargo of grain from the Great Lakes to North Europe. It was a port charter, not a berth charter. She loaded a cargo of soya-bean meal at Chicago and Bale Coraeau, Quebec. She carried the cargo across the Atlantic and arrived at the Weser Lightship at 22.00 on 7th December, 1970. She could not get into a berth on the River Weser until 30th December, 1970, at 04.00 hours. She then discharged her cargo in ten days. The question is as to the 23 days which she spent waiting for a berth from 7th December, 1970 to 30th December, 1970. The shipowners claim demurrage at the rate of $3,000 a day. The amount is $69,000. The charterers say that they are not liable for any of those 23 days. They say that she did not come on demurrage until she berthed on 30th December, 1970. So the time in dispute is the 23 days from 7th December, 1970 when she anchored at the Weser Lightship till 30th December, 1970, when she got into a berth on the Weser.
The ports in the Weser are familiar to this court. We considered them in The Timna (1971) 2 Lloyd's Law Reports 91. They are these: (i) At the mouth of the river there is Bremerhaven. This is a large port but there are no facilities for unloading grain except from a floating elevator, (ii) Two miles above Bremerhaven there is Nordenham. This can take large bulk-carriers and has three modern suckers, (iii) Six or seven miles above Nordenham there is Brake. This has two large grain-handling plants and can take large bulk-carriers drawing 34 to 35 feet. It has eight grain-suckers which can take 1,000 tons per hour. (iv) Several miles further up the river there is Bremen. This has nearly 20 suckers and can handle very large quantities, but it can only takevessels drawing up to 31 feet, but no more.
Those are all riverside ports, the river being about one-quarter-mile wide most of the way. There are no places in the river where any vessel can anchor and wait for a berth. Every vessel has to wait outside the river, far down the estuary. The only waiting place for a vessel as large as the "Maratha Envoy" was at the Weser lightship which is 25 miles below Bremerhaven, almost to the open sea, but quite a safe anchorage.
There is a very special method of allocating vessels to berths in the River Weser. Whenever a vessel arrives at the Weser lightship, she has to wait there until she is allotted a berth by an organisation called the "Kleine Allocation". This organisation has complete control over all the berths in all the ports on the River Weser. If there is no congestion, a vessel will be directed to a berth in one of the ports. If there is congestion, she has to wait her turn at the Weser Lightship. Then when her turn comes, she is directed by "Kleine Allocation" to any berth which is available for her. She has to take the berth at whatever port it may be. She has no choice. She must take it. Both charterers and owners must accept the berth allotted by the Kleine Allocation.
The charterparty. Such being the position on the Weser, I must turn to the charterparty. It required that the vessel, "being lorded shall therewith proceed to one port out of Amsterdam or Rotterdam or Antwerp or Ghent or one (i) safe port German North Sea all in charterers option".
"Time for Discharge. Time to count from the first working period on the next day following receipt, during ordinary office hours (Sundays and holidays excepted) but not after 5 p.m., of written notice of readiness to discharge, whether in berth or not".
At the beginning of the voyage the charterers thought of sending the vessel to Ghent: but, when she was approaching Lands End -that declared Weser as the discharge port. The owners replied that a specificdischarge port must be declared. The charterers then told the master: "Proceed to discharging port Bremen". The master replied that he could not go to Bremen as his draught was 32 feet. The charterers then suggested that the vessel should lighten at Brake and then go on to Bremen. Eventually they declared Brake as the discharging port. But the vessel could not go there at that time, nor to any tort on the River Weser, because all the berths at all the ports were full. She arrived at the Weser Lightship and there had to wait her turn. She had to wait until the Kleine Allocation allowed her a berth at one of the ports on the river.
Now for the qualifying voyages. This made the owners very restless. At that time in 1970 the law was thought to be finally declared by the House of Lords in The Aello (1561) Appeal Cases 135. According to that decision, the "Maratha Envoy" was not an arrived ship when she was at the Weser Lightship. She would not become an "arrived ship" until she arrived at the port of Brake. So they tried to make her an "arrived ship" so as to make time count for demurrage. They did it by making a voyage up river to Brake and back again. They did it twice. The vessel made two "qualifying voyages" up to Brake and back. This had to be done by special arrangements with the pilots. The vessel had to go up to Brake on the flood tide and turn whilst the tide was full, or else she could not have managed it. She could not anchor or stop in the river at Brake. That was forbidden by the river authorities. She was far too large, and the river too narrow. As soon as she arrived off Brake she had to turn and go back, but, just as she was in mid-stream, the ship's agents ashore gave written notice of readiness to the charterer's agents ashore. The first qualifying voyage miscarried because the notice of readiness was not given during office hours. But, the second qualifying voyage fitted just right. The timetable as recorded in the log was this:
| Monday, 7th December, 1970 (arrival at Lightship) | 2200 Let go starboard anchor at Weser Lightship. |
| Tuesday, 8th December, 1970 (first qualifying voyage) | 0300 Commenced weighting anchor (at Lightship and sailed up to Brake) |
| 0720 Vessel off Brake | |
| 0721 Turned round and tendered notice of readiness. Vessel drifted further upstream. | |
| 0728 Vessel started to return to anchorage. | |
| 1121 Let go starboard anchor (at lightship) |
Saturday, 12th December, 1970 At Weser Anchorage (second qualifying voyage) 0725 Commenced weighing starboard anchor (at Lightship)
1020 Public Health Officer aboard at Broraerhaven
1138 Vessel turning to starboard at Brake. (Dropped anchor to J assist in the turning movement) Turned around and tendered notice of readiness. Vessel drifted.
1148 Vessel ordered out to anchorage (at Weser Lightship) to await berth.
1611 Let go starboard anchor (at Lightship).
The owners claim that by this second qualifying voyage the vessel became an arrived ship on Saturday, 12th December, 1970, when notice of readiness was served, and that time then began to count. The Judge, however, refused to accept it. He said that to be an arrived ship "the essential feature is that the voyage shall have ended and the vessel be waiting". The vessel here arrived off Brake and was only one ship's length from the berth, but the Judge held that she had not arrived. "She was on a trip to Brake and back to the light vessel, with no pause other than such as was inherent in the manoeuvre of turning on a reciprocalcourse in a very narrow fairway. That does not constitute arrival … If my decision is correct, no ship in the history of commercial law has been, or is ever likely to be, nearer to arriving without actually doing so … It is quite fascinating".
The shipowners appeal to this court
Now I will talk about the absurdity of the law. By making this dramatic trip up river and back, the shipowners have exposed the law to ridicule. For, although the charter was a port charter - and although it contained an express stipulation that the shipowners could give notice of readiness "whether in berth or not" - nevertheless the law says that the shipowners cannot give notice of readiness until she has actually reached a berth. So by a process of interpretation, the law has turned this pert charter into a berth charter and altered the whole incidence of waiting time.
Mr. Staughton put forward the legal argument in these three stages: First: The vessel, he said, was not an "arrived ship" when she dropped anchor at the Weser lightship, even though that was the usual waiting place - indeed, the only waiting place - because she was not then "within the port" of Brake. Second: She was not an "arrived ship", he said, when she arrived at the port of Brake - opposite the berth and a ship's length from it - because there was no waiting place within the port of Brake and she had to turn round and go back. Third: She only became an "arrived ship", he said, when she actually got into a berth at Brake, So he has turned the port charter into a berth charter. All I would say about that argument is to say with Mr. Bumble: "If the law...
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