Hain Steamship Company Ltd v Tate and Lyle Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1936 |
| Date | 11 June 1936 |
| Court | House of Lords |
House of Lords
Lords Atkin, Thankerton, Macmillan, Wright and Maugham
Hain Steamship Company Limited v. Tate and Lyle Limited
Louis Dreyfus and Co. v. Tempus Shipping Company Limited sup. p. 243 145 L. T. Rep. 490 (1931) A. C. 726
Steel and Co. v. Scott and Co.DID=ASPMELR 6 Asp. Mar. Law Cas. 419 14 App. Cas. 601 61 L. T. Rep. 597
James Morrison and Co., Limited v. Shaw, Savill, and Albion Co., LimitedDID=ASPMELR 13 Asp. Mar. Law Cas. 504 115 L. T. Rep. 508 (1916) 2 K. B. 783
Matthews and another v. Smallwood and others; Smallwood v. Matthews and othersELR 102 L. T. Rep. 228 (1910) 1 Ch. 777
Joseph Thorley Limited v. Orchis Steamship Company LimitedDID=ASPMELR 10 Asp. Mar. Law Cas. 431 96 L. T. Rep. 488 (1907) 1 K. B. 660
Leduc and Co. v. WardDID=ASPMELR 6 Asp. Mar. Law Cas. 290 58 L. T. Rep. 908 20 Q. B. Div. 475
United States Shipping Board v. Bunge y BornUNKUNK 30 Com. Cas. 129 31 Com. Cas. 118
Charter-party Deviation Stranding of vessel
Decision of the Court of Appeal (151 L. T. Rep. 249) reversed
62 ASPINALL'S MARITIME LAW CASES. Adm.] Hain Steamship Co. Ltd. v.. Tate and Lyle Ltd. [H. of L. House of Lords. April 23, 24, 27 ; June 11, 1936. (Before Lords Atkin, Thankerton, Macmillan, Wright and Maugham.) Haiti Steamship Company Limited v. Tate and Lyle Limited. (a) ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Charter-party - Deviation - Stranding of vessel - Contribution in general average - Endorsees of bills of lading - Lloyd's average bond. F. and Co. and C. D. S. C, both of New York, by separate special c.i.f. contracts, sold sugar to the plaintiffs. For the carriage of the sugar F. and Co. chartered the defendants' steamer T., and sub-chartered to C. D. S. C. the T. to proceed to a port in San Domingo. By the charter-party, the T. was to load sugar at two ports in Cuba and at one in San Domingo " as ordered." F. and Co. informed the defendants' agents in New York, S. S. and Y., of the names and order of call at these ports : (1) Casilda, (2) Santiago de Cuba, in Cuba, and (3) San Pedro de Maconis in San Domingo. The T. went to Casilda, and there loaded sugar, and was sent on by the local agents of F. and Co. to Santiago, where she loaded more sugar. S. S. 'and Y. had cabled to the steamer at Casilda directing her to proceed to Santiago and thence to San Pedro de Maconis. This cable never reached the master; it was said that a Cuban postmaster gave it to a coloured lorry driver to deliver but that he had forgotten all about it. S. S. and Y. had, however, dispatched to the master of the T. a copy of the charter, which stated that there was a third port of shipment in San Domingo, and this had reached him. The T. left Santiago for Queenstown with a claim for dead freight endorsed upon the bills of lading. Shortly afterwards the steamer was recalled by wireless to San Pedro de Maconis in San Domingo, where she completed her loading of sugar. On having this port on the eventual homeward voyage, the T. stranded and was damaged. All the sugar had to be discharged, and some of it was lost. The plaintiffs were indorsees of bills of lading of the sugar on board the T. The sugar under the plaintiffs' contracts was brought to the United Kingdom in another steamer, and to obtain the sugar the plaintiffs (a) Reported by Edwaed J. M. Chaplin, Esq., Barrister-at-Law. ASPINALL'S MARITIME LAW CASES. 63 H. of L.] Hain Steamship Co. Ltd. v. Tate and Lyle Ltd. [H. of L. signed a general average bond agreeing with the owners of the ship to pay the proper proportion of salvage in general average or particular or other charges chargeable on their consignment to which the shippers or ??mers of such consignments might be liable to contribute, and they made the deposit claimed in the action - 9,500l. The plaintiffs admitted that they were liable to contribute in general average for the sugar from San Domingo, but denied that liability in respect of the Cuban sugar on the ground that there had been an unjustifiable deviation by the T. Held, (1) that although there had been a deviation from the chartered voyage, it had been waived by the charterers; (2) that the shipowners could not in the present circumstances claim against the respondents as indorsees of the bills of lading either contribution or freight if they had to rely on the bills of lading alone, but that the terms of the Lloyd's bond which was independent of the bills of lading gave to the shipowners the right they claimed in respect of contribution to the general average charges as against the respondents; and (3) that in the circumstances of this case the shipowners' claim for the balance of freight failed. Decision of the Court of Appeal (151 L. T. Rep. 249) reversed. Appeal from the decision of the Court of Appeal, reported 151 L. T. Rep. 240, in an action in which the plaintiffs, the present respondents, claimed the return of 9500l. deposited by them with the appellants to cover a contribution in general average. The facts which are sufficiently summarised in the headnote are fully stated in their Lordships' opinions. In the Court of Appeal it was held by Scrutton, L.J. and Slesser, L.J. - Greer, L.J. dissenting - that there had been an unjustifiable deviation, and the defendants, the shipowners, were not entitled to claim protection from the exceptions in the charter-party or its benefit in claiming a general average contribution. The plaintiffs' agreement under the general average bond had been obtained under compulsion. It had been stated to be made without prejudice and without admitting liability for such charges. It was not a question of lien, for the shipowners could not give information to enable the contribution to be calculated, and, further, all provisions in the charter-party or bills of lading had been destroyed by deviation. There would be a declaration that the Tregenna deviated, and for the return to the plaintiffs of the 9500/. The shipowners appealed. Sir Robert Aske, K. C. and Cyril Miller for the appellants. H. Stranger, K.C. and Stephen Furness for the respondents. The House took time for consideration. Lord Atkin. - My Lords, this case arises on an appeal from the Court of Appeal, who reversed a decision of Roche, J. in an action in which the present respondents were plaintiffs and the appeal-la'ts were defendants. The learned judge gave judgment for the defendants on claim and counterclaim. The Court of Appeal reversed the decision and determined both claim and counterclaim in favour of the plaintiffs. Tate and Lyle Limited, the respondents, in March, 1930, bought 25,000 tons of Cuban sugar from Messrs. Farr and Co., of New York, on c.i.f. terms. In February they had bought 50,000 tons Cuban and (or) San Domingo sugar from the Cuban Dominican Sales Corporation, of New York, on similar-terms. These sellers are said to be closely associated with Messrs. Farr and Co. In order to perform the contracts, Messrs. Farr and Co., on the 16th July. 1030, chartered from the appellants the steamship Tregenna on terms whereby the vessel was to proceed to Cuba and load a full and complete cargo of sugar in bags not exceeding 7770 tons and not less than 7030 tons at one or two safe ports on the north side or at one or two safe ports on the south side, and at one safe port on the south side of San Domingo, as ordered from the factors of the charterers. Freight was to be paid at 13s. 6d. per ton sterling in New York, as to 50 per cent, in cash on receipt of cable advice of signing of bills of lading and the balance in cash on receipt of cable advice of right delivery of cargo and the net delivered weight ascertained. On the 28th July, 1930, Messrs. Farr and Co., as chartered owners of the Tregenna, entered into a charter-party with the Cuban Dominican Sales Corporation whereby it was agreed that the vessel should proceed to San Domingo and there load at one safe pert on the south side from the factors of the charterers a cargo of sugar in bags not exceeding 2780 tons nor less than 2040. The provisions as to freight corresponded to those in the principal charter. The dispute between the parties arises out of events that happened in the course of the voyage of the Tregenna. Under the charter-party the charterers named Casilda and Santiago as the two Cuban ports. While the ship was loading at the first port, Casilda, the charterers declared the San Domingo port, San Pedro de Macoris, on the south side of the island, to the owners. The owners sent the nece ??ary cable to the ship at Casilda, but owing to an alleged default of the post office authorities in Cuba it never reached its destination. The ship, after taking in cargo at Casilda, proceeded to Santiago and there loaded that portion of cargo. Having received no orders for a San Domingo port the master indorsed the bills of lading for dead freight, as he had only 4990 tons on board instead of the full and complete cargo stipulated in the charter party, and then cleared for Queenstown, whither he was to proceed for orders. He sailed for Queenstown at noon on the 29th July, proceeding between Cuba and San Domingo northward. The direct route to San Pedro would have been south of the island. Within a few hours all parties, including Messrs. Farr and Co., became aware of the mistake and a radio message was sent to the captain when off the Island of Inagua directing him to proceed to San Pedro. He obeyed orders, taking the shortest route which, from the point he had reached, took him round the north of San Domingo. He arrived at San Pedro on the 2nd August. There the Tregenna was loaded with the cargo under the sub-charter, about 2780 tons, under the supervision of Tate and Co., who were Messrs. Farr and Co.'s agents at San Pedro. Bills of lading were given to the sub-charterers. She sailed again from San Pedro on the 6th August, but, while leaving harbour, stranded and received serious damage. The cargo was discharged, and such as was not lost was transhipped by Hain Steamship Company Limited...
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