Fletcher (W. & R) (New Zealand) Ltd v Sigurd Haavik Aksjeselskap (Vikfrost)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE,LORD JUSTICE LAWTON,LORD JUSTICE MEGAW |
| Judgment Date | 03 July 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0703-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 1979 |
[1979] EWCA Civ J0703-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Commercial Court
Lord Justice Megaw
Lord Justice Lawton
Lord Justice Browne
MR. C. S. STAUGHTON, Q. C., and MR. T. YOUNG (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants.
MR. R. AIKENS (instructed by Messrs. Clyde & Co.) appeared on behalf of the Respondents.
This is an appeal by the defendants from a decision of Mr. Justice Mocatta given on 26th September 1978 by which he refused two applications by the defendants. First, he refused an application to set aside an order of Mr. Justice Donaldson dated 13th April 1978 which gave leave to the plaintiffs to issue a wit and serve notice of the writ on the defendants in Norway. The second application was that, in any event, one of the defendants, a Mrs. Blomhoff, should cease to be a party. That second application was not pursued in this court. Mr. Justice Mocatta gave leave to appeal.
The four plaintiffs here consist of two New Zealand companies and two Japanese companies. They bring this claim as cargo owners or endorsees of Bills of Lading relating to meat that was shipped from New Zealand to Japan in July 1974. The defendants are 19 individuals or companies or partnerships in Norway who were, at the material time, and so far as I know still are, the owners of a ship now called the "Vikfrost".
This appeal came before another division of this court, consisting of two Lords Justices, in February 1979 and that court came to the conclusion that the case ought to be argued before a court consisting of three Lords Justices, and it now has been.
The case turns on the effect of a clause in a number of Bills of Lading issued in respect of this cargo of meat. That clause appears at page 51 of the documents and reads as follows: "JURISDICTION - The contract evidenced by this B/L shall be governed by English law and any dispute thereunder shall be determined in London by The High Court of Justice according to English law to the exclusion of the jurisdiction of the Court of any other country." It was on the basis of that clause that leave was given to serve notice of the writ out of he jurisdiction.
Mr. Staughton, for the appellant defendants, says that there was no contract made by these defendants or by any authorised agent of theirs to submit to the jurisdiction of the High Court in England and, therefore, this case does not fall within Order 11 of the Rules of the Supreme Court. Alternatively, he says that, even if the case does fall within that order, thiscourt should, as a matter of discretion, refuse leave to serve notice of the writ out of the jurisdiction.
The story begins with a time charter dated 24th April 1970 which appears at page 27 of the documents. That charter was made in Oslo on 24th April 1970 between the then owners of this ship, which at that time was called the "Thorsdrott", and a charterer known as Salen Reefer Services AB. That was a time charter for three years. According to clause 1 the trading limits ware these: "The vessel to be employed within the following limits - world wide trading within Norwegian Insurance Policy limits where no extra premiums are incurred excluding Israel and Cuba but including Communist controlled territories subject to Norwegian authorities' approval and any extra insurance in connection with trading limits etc. to be for Charterers' account."
By clause 13: "The Master shall prosecute his voyages with the utmost despatch, and shall render all customary assistance with ship's crew, tackle and boats. The Master (although appointed by the Owners) shall be under the orders and directions of the Charterers as regards employment, agency and other arrangements necessary for the Charterers' use of the vessel." The next sub-paragraph deals with a case if the charterers are dissatisfied with the Master and so on - I do not think I need read that. The clause goes on: "The Master to sign 3ills of Lading as presented. The Charterers to indemnify the Owners against all consequences and liabilities which may arise from the Master signing such Bills of Lading should the Owners thus incur a liability greater than agreed upon under this Charterparty, or for otherwise complying with the Charterers' orders. Subject always to the aforesaid indemnity, it is agreed that Bills of Lading issued for voyages under this Charterparty may be signed on behalf of the Master by the Charterers' Agents and may contain the demise clause contained in the Salen Bill of Lading Clause No. 17 or similar; that the Charterers shall have the option of handling all claims against the vessel for loss of, or damage to, cargo; and that if the option is exercised by the Charterers to settle claims this shall be done as Agents of the Owners and Charterers are to be held harmless by the Owners, to the extent which theOwners would have been liable under this Charter Party."
Pausing there, we have in our papers a copy of the Salen Bill of Lading and the demise clause is in fact clause 18 which appears at page 79 of the documents and reads as follows: "If the ship is not owned by or chartered by demise to the Company or Line by whom this Bill of Lading is issued (as may be the case notwithstanding anything that appears to the contrary) this Bill of Lading shall take effect only as a contract with the owner or demise charterer, as the case may be, as principal made through the agency of the said Company or Line who act as agents only and shall be under no personal liability whatsoever in respect thereof."
Mr. Staughton did mot in any way rely on the Salen Bill of Lading as being directly relevant in this case, but it is convenient to refer to that demise clause at this stage because the Bills of Lading with which we are concerned contain what was an identical demise clause except, I think, for two or three words.
Going back to the Head Charterparty, clause 19 provides: "The Charterers to have the option of subletting the vessel, giving due notice to the Owners, but the original Charterers always to remain responsible to the Owners for due performance of the Charter."
Clause 20: "Any dispute arising under the Charter to be referred to Arbitration in Oslo and be decided according to Norwegian law", and then there follow provisions as to the appointment of arbitrators and so on.
Clauses 26 and 27 provide that all Bills of Lading issued under the Charterparty shall contain certain clauses relating to the Hague Rules and The New Jason Clause and the Both to Blame Collision Clause. Anticipating what I am going to say later, those clauses were incorporated in the Bills of Lading with which we are concerned.
The next thing that happened was that there was an Addendum No. 2 to that Charterparty, dated 8th March 1972. That appears at page 34 of the documents and it is an agreement by which the ship previously known as the "Thorsdrott" was sold to the present owners, the defendants, and was to be re-named the"Vikfrost". That contract was a novation as a result of which the new owners took on the Charterparty of 24th April 1970 and the previous charterers were released.
On the same day, 8th March 1972, there was another Addendum No. 3 by which the Charterparty was extended for a year up to 22nd October 1974, 14 days more or less in Charterers' Option, and the charterer was given an option to extend it still further for another year.
On 27th May 1974 the charterer exercised his right to sub-charter this ship, and the Sub Time-Charter appears at page 40 of the documents. That was a Sub Charterparty between Salen Reefer Services AB and J. Lauritzen. The charter was for a period of 40 to 55 days. It contained the same trading limits as the Head Charter in clause 2. By clause 9: "The Master to prosecute all voyages with the utmost despatch and to render customary assistance with the Vessel's Crew. The Master to be under the orders of the Charterers as regards employment, agency, or other arrangement. The Charterers to indemnify the Owners against all consequences and liabilities arising from the Master, Officers or Agents signing Bills of Lading or other documents or otherwise complying with such orders". I do not think I need read the rest of that clause.
Clause 23: "Any dispute arising under the Charter to be referred to arbitration in London (or such other place as may be agreed)…s"
Clause 46 contained provisions similar to those of the Head Charter to which I have already referred, requiring that all Bills of Lading were to include certain clauses: the New Jason Clause, the New Both to Blame Collision Clause and the Paramount Clause.
In July 1974 the meat to which this claim relates was loaded at two ports in New Zealand, Gisborne and Timaru. There were altogether 16 parcels of meat in respect of each of which a separate Bill of Lading was issued, but we are told that they are all in the same form. The meat was to be carried to Japan.
The Bill of Lading which was taken as typical appears at page 51. Thatis headed "J. Lauritzen, Copenhagen". The shipper is W. & R. Fletcher (NZ) Ltd., the first plaintiff. "Consignee order". "Notify address - Nichiryu Meat Company Ltd." - that is the second plaintiff. On the face of that Bill of Lading there appeared the jurisdiction clause which I have already read. It appears in this form: "Clause 19 on reverse side hereof has been cancelled and replaced as follows" and then the jurisdiction clause is set out. The Bill of Lading is signed on the bottom right-hand corner: "Signed (for the master) for C. A. Olsen Ltd. As Agents" and then an illegible signature. Of the other Bills of Lading, some were signed by C. A. Olsen Ltd. in that...
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