Homburg Houtimport BV v Agrosin Private Ltd (Starsin)
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT |
| Judgment Date | 17 March 2003 |
| Neutral Citation | [2003] UKHL 12 |
| Date | 17 March 2003 |
| Court | House of Lords |
and others
and two other actions
[2003] UKHL 12
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hoffmann
Lord Hobhouse of Woodborough
Lord Millett
HOUSE OF LORDS
My Lords,
On 8 December 1995 the vessel Starsin sailed from the Far East bound for ports in Western Europe. Among other cargoes the vessel carried a number of parcels of timber and plywood the condition of which deteriorated progressively and seriously during the voyage because they had been negligently stowed before the voyage began. These parcels were carried pursuant to contracts of carriage contained in or evidenced by a series of transferable bills of lading of which the respondents, on different dates, became the holders. It is convenient to describe the respondents as "the cargo owners". They made claims for damage to the cargo against the appellants, the owners and demise charterers of the vessel, between whom it is unnecessary to distinguish and to whom I shall refer as "the shipowner". The vessel was, at the time of this voyage, on time-charter by the shipowner to Continental Pacific Shipping ("CPS"), which at the time operated a liner service between the Far East and Western Europe, but which has since become insolvent. This appeal by the shipowner and the cross-appeal by the cargo owners raise questions which, compendiously expressed, are whether the shipowner is liable to the cargo owners under these bill of lading contracts and, if not, whether it is liable to any of the cargo owners to any (and if so, what) extent in tort.
The facts are well summarised in the judgments of Colman J sitting in the Commercial Court ( [2000] 1 Lloyd's Rep 85) and the Court of Appeal ( [2001] 1 Lloyd's Rep 437, [2001] EWCA Civ 56) and those summaries need not be repeated. It is enough to note that the various parcels of timber and plywood were shipped on board the vessel at 3 ports in Malaysia for carriage to Antwerp and Avonmouth under 17 bills of lading of which each of the 4 cargo owners (Makros Hout BV, Homburg Houtimport BV, Fetim BV and Hunter Timber Ltd) became the holders of 2 or more. Save in certain respects, specifically mentioned below (paragraph 38), it is unnecessary to distinguish between the various cargo owners. There were some differences between the various bills, but these differences are not material to any issue arising on the appeals. It is convenient to confine my description to a single bill, one of the Makros Hout bills, which I shall call "the bill" and treat as generally representative of all the bills sued upon.
The bill was in familiar form. It had 2 sides, a face and a reverse. On its face, the bill contained in its top left-hand corner a box with the heading "Shipper" into which the name and address of the shipper under the bill was typed. Below that box was the heading "Consigneee", and here was typed "To order of Hongkong Bank Malaysia Berhad". Below that was a box ("Notify address") into which the name and address of Makros Hout were typed. Below that was the heading "Vessel" and in that box was typed "MV Starsin V.CP144", the latter abbreviation standing (it appears) for "Voyage Continental Pacific No 144". The ports of loading and final destination were typed into boxes provided to contain that information. On the top right-hand corner of the face of the bill was the bold heading "Liner Bill of Lading" with a notation making abbreviated reference to the ports of loading and discharge. Below that, much more prominent than any other entry on the face of the bill, was a logo and the printed words "Continental Pacific Shipping". Below the entries so far described, also on the face of the bill, particulars were typed in, as supplied by the shipper, of the marks, numbers of packages, description, weight and measurement of the goods. Below these particulars a box was provided for details of freight and charges to be entered, and "Freight prepaid" was typed in. To the right of this box was a printed statement to this effect:
"SHIPPED on board in apparent good order and condition, weight, measure, marks, numbers, quality, contents and value unknown, for carriage to the Port of Discharge or so near thereunto as the Vessel may safely get and lie always afloat, to be delivered in the like good order and condition at the aforesaid Port unto Consignees or their Assigns, they paying freight as indicated to the left plus other charges incurred in accordance with the provisions contained in this Bill of Lading. In accepting this Bill of Lading the merchant expressly accepts and agrees to all its stipulations on both pages, whether written, printed, stamped or otherwise incorporated, as fully as if they were all signed by the Merchant.
One original Bill of Lading must be surrendered duly endorsed in exchange for the goods or delivery order.
IN WITNESS whereof the Master of the said Vessel has signed the number of original Bills of Lading stated below, all of this tenor and date, one of which being accomplished, the others to stand void."
Below this statement were boxes providing for details (which were inserted) of the place where freight was to be paid, the number of original bills, the description of the particular bill and the place and date of issue of the bill. Lastly, in the bottom right-hand corner of the bill was a box with the printed heading "Signature". In that box there was typed "As Agent for Continental Pacific Shipping (The Carrier)", below which words was a rubber stamp ("United Pansar Sdn Bhd"), that being a company which acted as port agent for CPS at Kuching (the port of loading under the bill), and across the box were what appear to be 2 manuscript signatures.
On the reverse of the bill was a prominent printed heading "Company's Standard Conditions", below which 35 conditions were set out, in 2 dense columns, in print which was very small but just legible by a painstaking and persistent reader. Particular reliance was placed on conditions 1 (the definitions clause), 33 (the identity of carrier clause) and 35 (the demise clause). In some of the bills certain of the conditions became garbled in the printing, giving rise to obvious errors of spelling, punctuation, grammar and meaning, but I do not think it is in doubt that these 3 conditions should be treated as reading, in all the bills, as follows:
"1 DEFINITIONS In this Bill of Lading both on the front and on the back the following expressions shall have the meanings hereby assigned to them respectively, that is to say
(a) 'shipper' includes the consignees, the receiver, and the owner of the goods, also the endorser and the holder of the Bill of Lading, also the endorsee and the holder of the Bill of Lading
(b) 'receiver' includes the consignee and the owner of the goods, also the endorsee and the holder of the Bill of Lading
(c) 'Carrier' means the party on whose behalf this Bill of Lading has been signed
33 IDENTITY OF CARRIER The Contract evidenced by this Bill of Lading is between the Merchant and the Owner of the vessel named herein (or substitute) and it is therefore agreed that said Shipowner only shall be liable for any damage or loss due to any breach or non-performance of any obligation arising out of the contract of carriage, whether or not relating to the vessel's seaworthiness. If, despite the foregoing, it is adjudged that any other is the Carrier and/or baileee of the goods shipped hereunder, all limitations of, and exonerations from liability provided for by law or by this Bill of Lading shall be available to such other. It is further understood and agreed that as the Line, Company or Agents who has executed this Bill of Lading for and on behalf of the Master is not a principal in the transaction and the said Line, Company or Agents shall not be under any liability arising out of the contract of carriage, nor as Carrier nor bailee of the goods
35 If the ocean vessel 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 of carriage with the Owners or Demise Charterer as the case may be as Principal made through the Agency of the said Company or Line who act solely as Agents and shall be under no personal liability whatsoever in respect thereof."
Reliance was also placed in argument on condition 5 of the printed conditions, but it is convenient to defer quotation of that condition until later in this opinion (see paragraph 20 below).
The first issue
The first and most crucial issue between the parties on these appeals is whether the contracts to carry these various parcels of cargo were made by or on behalf of the shipowner, as the cargo owners contend, or by or on behalf of CPS, the charterers of the vessel, as the shipowner contends. Put another way, the question is whether these were shipowner's bills or charterer's bills. Colman J held that they were charterer's bills and that CPS was the contractual carrier: [2001] 1 Lloyd's Rep 85. On appeal, the Court of Appeal was divided: [2001] 1 Lloyd's Rep 437. Rix LJ agreed with the trial judge. But Sir Andrew Morritt V-C and Chadwick LJ held that they were shipowner's bills and that the shipowner was the contractual carrier, entitling the cargo owners to sue in contract for any recoverable loss they had suffered.
In submitting that these bill of lading contracts should be understood as having been made with CPS, Mr Gee QC for the shipowner relied above all...
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