Granville Oil & Chemicals Ltd v Davis Turner & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LONGMORE,Lord Justice Tuckey,Mr. Justice Hart,Lord Justice Potter |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWCA Civ 570,[2003] EWCA Civ 172 |
| Docket Number | A3/2002/2284,Case No: A3/02/2284 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2003 |
[2003] EWCA Civ 172
Lord Justice Longmore
A3/2002/2284
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
MERCANTILE COURT
(HIS HONOUR JUDGE BEHRENS)
QUEEN'S BENCH DIVISION
MR CHRISTOPHER SMITH (instructed by Messrs DLA, Liverpool L2 0NH) appeared on behalf of THE APPLICANT
Thursday 6 February 2003
I propose to grant permission to appeal of a limited nature and I will explain shortly why.
This is a comparatively ordinary action for damage to goods in transit brought by the goods' owner against the carrier. The carrier sought to rely on clause 30(B) of the terms of the British Institute Freight Association. That clause has to be read with clause 30(A) in order to make sense of it. Clause 30(A) reads:
"Any claim by the Customer against the Company arising in respect of any service provided for the Customer or which the Company has undertaken to provide shall be made in writing and notified to the Company within 14 days of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to comply with this Time limit and that he has made the claim as soon as it was reasonably possible for him to do so.
(B) Notwithstanding the provisions of sub—paragraph (A) above the Company shall in any event be discharged of all liability whatsoever howsoever arising in respect of any service provided for the Customer or which the Company has undertaken to provide unless suit be brought and written notice thereof given to the Company within nine months from the date of the event or occurrence alleged to give rise to a cause of action against the Company."
The learned judge was asked to decide three preliminary issues. He held: first, that Davies Turner, the defendants (now the appellants), contracted as a principal in relation to the carriage of the consignment; secondly, that clause 30(B) was incorporated into the contact between the parties; and thirdly, that clause 30(B) was unreasonable, pursuant to the Unfair Contract Terms Act 1997. It followed, therefore, that the claimants were entitled to summary judgment on their claim.
I have been troubled by two matters in particular: first, that the claim is a small one and that the costs incurred to date by the defendants exceed the value of the claim; and secondly, that Mr Smith, who appears today on Davies Turner's behalf, wants to raise a new ground, which he sets out by way of amendment to the Grounds of Appeal, namely that the Unfair Contract Terms Act does not apply at all because the contract was a contract for the carriage of goods by ship, or, alternatively, was a contract in performance of which goods were carried by ship and whose terms specified a ship as a means of carriage over part of the journey to be covered.
It seems to me to be quite wrong to give permission to appeal in that respect and permission for that is refused. It is a new point and would have required separate preliminary issues and a separate finding by the judge on relevant facts which were not before the court at first instance.
The carriage was largely performed by ship, but nobody knows where the damage occurred. In those circumstances it caused me concern as to whether it was appropriate to grant permission in this case. Nevertheless, Mr Smith has persuaded me that it is appropriate. It clearly is an important point whether or not clause 30(B) of the terms of the British Institute Freight Association is unreasonable and cannot be relied upon by them. The judge dealt with the point to some extent as a matter of construction. I am persuaded that it is at least arguable that the dictum of Lord Bridge in George Mitchell Chesterhall Limited v Finney Lock Seeds Limited [1983] 2 AC 803, 816A is inapplicable, as Mr Smith submits it may be.
I have been troubled by the fact that the maritime background to the case may make it an inappropriate case to decide on the reasonableness of clause 30(B). Mr Smith, however, has persuaded me (a) that this is an important matter, and (b) that the maritime background will not inhibit the court if it so wishes from coming to a proper conclusion on the reasonableness of clause 30(B).
In those circumstances it seems to me appropriate to grant permission to appeal. It will be for the full court to decide whether it may be appropriate in this case for a special order as to costs to be made since this is a matter which concerns the defendants very much more than the claimants. One possible view is that, since this is a matter of such concern to carriers, it would not be right for the order for costs below to be disturbed. I say no more about that since that will be a matter for the full court.
ORDER:
Permission granted; to be listed before a court of three judges for three-quarters of a day.
[2003] EWCA Civ 570
Lord Justice Potter
Lord Justice Tuckey and
Mr. Justice Hart
Case No: A3/02/2284
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM JUDGE BEHRENS
LEEDS MERCANTILE COURT
Chris. SMITH (instructed by DLA Martin Hill/Jill Barker) for the Appellants
Stephen HOWD (instructed by Wake Smith) for the Respondents
Clause 30 of the British International Freight Association (BIFA) Standard Trading Conditions (1989 Edition) says:
(A). Any claim by the Customer against the Company arising in respect of any service provided for the Customer or which the Company has undertaken to provide should be made in writing and notified to the Company within 14 days of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to comply with this time limit and that he has made the claim as soon as it was reasonably possible for him to do so.
(B). Notwithstanding the provisions of subparagraph (A) above the Company shall in any event be discharged of all liability whatsoever howsoever arising in respect of any service provided to the Customer or which the Company has undertaken to provide unless suit be brought and written notice thereof given to the Company within 9 months from the date of the event or occurrence alleged to give rise to the cause of action against the Company.
The question on this appeal is whether in the circumstances of this case clause 30(B) as incorporated in the contract between the appellants and the respondents satisfied the requirement of reasonableness prescribed by the Unfair Contract Terms Act 1977. Judge Behrens in the Leeds Mercantile Court decided that it did not.
The appellants are large international freight forwarders. The respondents, among other activities, manufacture and export paint and regularly use the services of international freight forwarders in the course of their business. On the 27 th October 1999 the appellants agreed with the respondents to carry a return consignment of paint from Kuwait to the respondents' warehouse near Rotherham. To perform this contract the appellants had to collect and pack the paint into two shipping containers in Kuwait and, carry them by sea to Southampton and then by road to the respondents' warehouse. On the 4 th November the appellants agreed to arrange insurance of the consignment against all risks in transit under Institute Cargo Clauses (A). The contract or contracts were subject to the BIFA conditions.
The paint was packed and shipped from Kuwait in November 1999 and delivered to the respondents' warehouse by the 11 th January 2000. The respondents found that it had been damaged in transit and made a claim for £27,673.00 against the appellants within the time prescribed by clause 30(A). The appellants then made a claim on the insurance on the respondent's behalf. On the 21 st. January cargo surveyors inspected the damage on behalf of underwriters. Their report of 8 th February said that the damage appeared to have been caused by poor stowage and inadequate restraint within the containers, an excepted peril under the all risks insurance. Underwriters did not however reject the claim on this ground until 31 st March. The appellants disputed rejection of the claim, but by letter of 27 th June underwriters changed tack and said they were now rejecting the claim because this was a returned shipment. Under the open cover held by the appellants such risks could not be declared to the all risks cover unless the goods were inspected on behalf of underwriters before shipment and there had been no such inspection. The respondents were not told that the insurance claim had been rejected until 2 nd August or why it had been rejected until 22 nd August. The 9 month period in which to bring a claim for breach of the contract to insure expired on 3 rd August. The respondents did not start these proceedings however until 15 th November 2001.
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