Frenkel v MacAndrews & Company
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Dunedin,Viscount Sumner,Lord Atkin,Lord Warrington of Clyffe,. |
| Judgment Date | 11 March 1929 |
| Judgment citation (vLex) | [1929] UKHL J0311-1 |
| Date | 11 March 1929 |
| Court | House of Lords |
[1929] UKHL J0311-1
House of Lords
Lord Buckmaster
Viscount Dunedin.
Viscount Sumner.
Lord Blanesburgh.
Lord Warrington of Clyffe.
After hearing Counsel, as well on Tuesday the 29th and Thursday the 31st, days of January last as on Friday the 1st day of February last, upon the Petition and Appeal of Leon Frenkel, of Castle Towers, Park Side, Wimbledon, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 8th of May 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of MacAndrews and Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 8th day of May 1928, complained of in the said Appeal, be, and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Appellants, who are merchants at Malaga, on the 11th April, 1927, shipped 24 barrels of olive oil in the steamship "Cervantes," one of a fleet of steamers owned by the Respondents trading between Malaga and this country. The terms of the Bill of Lading are as follows:—
"Shipped by Leon Frenkel in the Steam Ship Cervantes,' with destination to Liverpool, with liberty to touch at any ports whatsoever, although they may be outside the route without it being considered a deviation; to enter and leave ports without pilot; to assist and tow vessels in any circumstances; to discharge, reload, tranship, send to destination by any means of transport, all responsibility of the ship ceasing on discharge from dock."
The ship proceeded to Cartagena and thence to a series of other ports on the Mediterranean coast, reaching as far as Palamos, close to France, and she then returned, calling at various ports on her way, but not calling again at Malaga, and so to Liverpool. Between Malaga and Cartagena she encountered heavy weather, with the result that the barrels of oil were sprung and the oil was lost, whereupon these proceedings were instituted by the Shippers, claiming damages for the loss. They alleged originally that the ship was not seaworthy, but that point has been disposed of adversely to them and is no longer supported. The real question in the case is whether or no it was a deviation from the route not' permitted by the Bill of Lading to call at Cartagena, since if that were so the fact that the oil was lost in the course of that journey would entitle Plaintiffs to the remedy they seek.
The Respondents, however, allege that in the circumstances of the case the route authorised by the Bill of Lading was that in pursuance of which they proceeded up the Mediterranean Coast and that to call at Cartagena was well within the permission of the deviation clause.
The point is important. A Bill of Lading, like every other contract, must be construed in relation to the circumstances in which it was entered into and the Respondents say that in the present case those circumstances include the practice of the sailings of their vessels, which was well known to the Appellants.
The facts clearly establish that such practice was this. The Respondents' steamers are in the habit of going from Liverpool up the Mediterranean coast, picking up a cargo from port to port, either as they journey up or journey down, and then returning to Liverpool. In certain cases they call at Malaga after they have called at the Mediterranean ports. In other cases, as in the present, they call at Malaga first and then pursue their way to the other ports. The distinction between the two routes is well known and is covered by advertisements issued in the local papers at Malaga, stating that the voyage of any particular vessel is either " via Levante" or "Directo," according as they are proceeding up the Mediterranean before going to Liverpool or going to Liverpool direct. This information is also contained on their shipping cards, and although there is no proof that the Plaintiff himself was actually informed upon the point, since he was not at Malaga when the cargo was shipped, there is no doubt that the information was in the possession of his agents and that when they shipped the oil they did so in a steamer which they knew was going to Liverpool " via Levante" and not direct. It is impossible to say, in these circumstances that there is any definite customary route. The customary route is one of two routes, and the figures showed, as to the different voyages, that the one was nearly as customary as the other. The Bill of Lading does not in terms say the ship was lying at Malaga or was bound for Liverpool, but that Liverpool was her destination, and, as far as that is concerned, that destination is consistent with either of the two courses being pursued.
If, notwithstanding these facts, the fair construction of the Bill of Lading is that the route was direct to Liverpool, the Appellants would be entitled to succeed, for an agreed term in a Bill of Lading must prevail over an agreement contrary to its terms. The true remedy in such a case is rectification of the documents, and no such claim is made here. The Appellants contend that the authorities conclude the matter of construction in their favour, and of these the most important are:
Leduc v. Ward , 20 Queen's Bench Division, page 475, and Glynn v. Margetson, 1892, 1 Q.B. 337. In the former case goods were shipped for delivery at Dunkirk on a vessel lying at Fiume and bound for Dunkirk with liberty to call at any ports in any order. Instead of proceeding direct for Dunkirk, the vessel sailed for Glasgow and was lost off the mouth of the Clyde. Proceedings were taken by indorsees of the Bill against the ship owners for non-delivery of the goods. The Bill of Lading was in the usual form and Lord Esher points out that such a form provides for a particular voyage, and that unless it does so it would be impossible for the owner of the goods to know at what time he could calculate on their receipt. He continues:
"It is obviously a most important part of the contract of carriage by sea that the route by which the goods are to be brought should be determined."
And further he adds that if "the only voyage mentioned is from the port of shipment to the port of destination, it must be a voyage on the ordinary track by sea of the voyage from one place to the other."
Fry, L.J., speaks in the same terms. In his judgment there is contained the following important passage:—
"It is said that there is an American authority which shows that notice to the shipper of the route by which the ship is going to sail will rebut what is said to be an implied term of the contract, viz., that the vessel will proceed by the direct route to the port of destination. In the first place it should be observed that this seems to have been a mere obiter dictum; but assuming that, apart from the Bills of Lading Act, such notice would have had any such effect, which I am far from saying, I think it impossible, having regard to the provisions of that Act, to suppose that any effect could be produced by such notice to the shipper with respect to a contract by Bill of Lading which is by status made assignable to a third person; for to hold that it could have such effect would be to hinder that assignability of the contract which the legislature designed to effectuate."
The words in that case, however, differ from those in the present. There is a marked distinction between a vessel lying at one port and being bound for another and a vessel having an ultimate destination, which as far as the goods are concerned, might be either a port or an inland town.
The case of Glynn v. Margetson in 1892, 1 Queen's Bench, page 337, is a decision to the same effect.
In that case the goods and the terms of the Bill of Lading provided that the goods were shipped on the steamship "Zeta" now lying in the port of Malaga bound for Liverpool with liberty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, Black Sea or Adriatic, or on the coast of Africa, Spain, Portugal, France, Great Britain and Ireland, for the purpose of delivering coal, cargoes or passengers or for any other purpose whatsoever. The oranges were shipped at Malaga and the ship instead of going to Liverpool direct went to Burriana on the northeast coast of Spain and then back again and proceeded to Liverpool. As a consequence of the delay thus caused, the oranges were rotten. Lord Esher says:
"The voyage described is from Malaga to Liverpool and if there were nothing else in the Bill of Lading, the ship would be bound to go from Malaga to Liverpool according to the ordinary sea course for a steamer from the former port to the latter. And he then says that The liberty to deviate is a liberty with regard to that voyage; it is not a liberty to go on another voyage but to call on those ports which are in the course of the voyage though not exactly the sea course that the ship would take."
Fry, L.J., and Bowen, L.J., agreed with this judgment and neither there nor in the House of Lords, where the case is...
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