Homburg Houtimport BV v Agrosin Pte Ltd ('The Starsin') [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Colman J. |
| Judgment Date | 16 July 1999 |
| Date | 16 July 1999 |
| Court | Queen's Bench Division (Commercial Court) |
Queen's Bench Division (Commercial Court).
Colman J.
Nigel Jacobs (instructed by Clyde & Co) for the plaintiff.
Steven Berry (instructed by Holmes Hardingham Walser Johnson Winter) for the defendant.
The following cases were referred to in the judgment:
Armagas Ltd v Mundogas SA (“The Ocean Frost”)ELR [1986] 1 AC 717; (1986) 2 BCC 99,197.
Canadian Transport Co Ltd v Court Line LtdELR [1940] AC 934.
Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (“The Mineral Transporter”)ELR [1986] 1 AC 1.
D & F Estates Ltd v Church Commissioners for EnglandELR [1989] AC 177.
Donoghue v StevensonELR [1932] AC 562.
Eurymedon, TheELR [1975] AC 154.
Fetim BV v Oceanspeed Shipping Ltd (“The Flecha”)UNK [1999] 1 Ll Rep 612.
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) LtdELR [1964] 2 QB 480.
Grant v NorwayENR (1851) 10 CB(NS) 665.
Houldsworth v City of Glasgow Bank (1880) 5 AC 317.
Kleinwort Sons & Co v Associated Automatic Machine Corp Ltd (1934) 151 LT 1.
Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (“The Aliakmon”)ELR [1985] QB 350 (CA); [1986] AC 785 (HL).
Lloyd v Grace Smith & CoELR [1912] AC 716.
Mahkutai, The [1996] CLC 799; [1996] AC 650.
Margarine Union GmbH v Cambay Prince Steamship Co Ltd (“The Wear Breeze”)ELR [1969] 1 QB 219.
MB Pyramid Sound NV v Briese-Shiffarts GmbH & Co KG (“The Ines”) [1995] CLC 886.
Mitsui & Co Ltd v Flota Mercante Grancolombiana SA (“The Ciudad de Pasto”)UNK [1988] 2 Ll Rep 208.
Nea Tyhi, TheUNK [1982] 1 Ll Rep 606.
Nippon Yusen Kaisha v International Import & Export Co Ltd (“The Elbe Maru”)UNK [1978] 1 Ll Rep 206.
Oceanfocus Shipping Ltd v Hyundai Merchant Marine Co Ltd (“The Hawk”)UNK [1999] 1 Ll Rep 176.
Port Jackson Stevedoring Pty v Salmond & Spraggon (Australia) Pty Ltd (“The New York Star”)WLR [1981] 1 WLR 138.
Rewia, TheUNK [1991] 2 Ll Rep 325.
Saudi Crown, TheUNK [1986] 1 Ll Rep 261.
Silver v Ocean Steamship Co LtdELR [1930] 1 KB 417.
Sunrise Maritime Inc v Uvisco Ltd (“The Hector”) [1998] CLC 902.
Universal Steam Navigation Co Ltd v James McKelvie & CoELR [1923] AC 492.
Uxbridge Permanent Benefit Building Society v PickardELR [1939] 2 KB 248.
Venezuela, TheUNK [1980] 1 Ll Rep 393.
Whitechurch (George) Ltd v CavanaghELR [1902] AC 117.
Shipping — Carriage of Goods — Whether shipowners liable on bills of lading issued by time charterers operating liner service — Whether bills were owners' or charterers' bills — Whether bills issued with owners' authority — Whether bills which did not conform with mates' receipts were within owners' ostensible authority — Whether shipowners could rely on Himalaya clause in bills as independent contractor of carrier — Whether shipowners liable for negligent stowage occurring before claimants had title.
This was a series of claims for damage to different parcels of timber carried on board the vessel “Starsin” on the basis that the defendant shipowners were in breach of the bills of lading contracts or alternatively were liable in tort for bad stowage which progressively caused damage to sound cargo in the course of the voyage.
The vessel was time chartered to Continental Pacific Shipping (“CPS”) which operated a liner service and the bills of lading were on the CPS form. The bills had on their reverse an identity of carrier clause (cl. 33) which provided for the contract of carriage to be with the owner of the vessel, but also that some other person might be adjudged the carrier, and a demise clause (cl. 35) which provided that the bill should only take effect as a contract with the owner and that the line issuing the bill did so solely as agent and undertook no personal liability. However the signature boxes on the face of the bills were signed by agents for CPS as ‘carrier’ or ‘as carrier’. The owners argued that the bills were charterers' bills and that if they were owners' bills they were issued without authority in that they were antedated and not claused in accordance with the mates' receipts.
If the owners were not bound by the bill of lading contracts, then in relation to the claims in tort they contended that they were entitled to rely on the Himalaya clause in the bills, and that they were not liable for the effect of damage caused before title passed to the claimants and that the charterers were responsible for the bad stowage.
Held giving judgment for some of the claimants:
1. The effect of the words in the signature boxes was to identify CPS as the party bound by the bill of lading contracts notwithstanding cl. 33 and 35. The description of CPS as the carrier sufficiently clearly represented an assumption of personal liability as to supersede the identity of carrier clause and the demise clause. The terms of the bills were such that they represented that the obligations of carriage would be undertaken by the party on whose behalf they were signed. The signature of CPS as carrier represented to the shipper not merely that the line had procured the carriage but that it was undertaking responsibility for it. The bills were charterers' bills and not contracts binding the shipowners. (Universal Steam Navigation Co Ltd v James McKelvie & CoELR[1923] AC 492 considered, Sunrise Maritime Inc v Uvisco Ltd (“The Hector”)[1998] CLC 902 followed, Fetim BV v Oceanspeed Shipping Ltd (“The Flecha”)UNK[1999] 1 Ll Rep 612 not followed.)
2. The time charterers and loading port agents authorised to issue bills of lading by the terms of the time charter and master's letter of authority respectively, had ostensible authority to issue bills which would bind the owners even if there was no actual authority to issue bills which were antedated and not claused in accordance with the mates' receipts. (Grant v NorwayENR(1851) 10 CB(NS) 665 considered, The Nea TyhiUNK[1982] 1 Ll Rep 606 and The Saudi CrownUNK[1986] 1 Ll Rep 261 followed.)
3. Once it was decided that the bills were charterers' bills it was open to the court to treat the shipowners as independent contractors on behalf of the charterers within the Himalaya clause. (The Mahkutai[1996] CLC 799; [1996] AC 650 considered.)
4. The Himalaya clause did not provide owners with a blanket defence. The first part of the clause prohibited actions against the carrier's servants or agents and the second part conferred on such agents the protection available to the carrier but not including that available under the first part which did not protect the carrier but his servants or agents. Further since the protection extended was that available to the carrier it was limited by art. III, r. 8 of the Hague Rules. Accordingly once a shipowner was deemed to be a party to the contract of carriage as an independent contractor of the carrier he could not rely on the blanket exclusion of liability in the first part of the Himalaya clause and was only entitled to the defences or limitations available under the Hague Rules or bills of lading in accordance with art. III, r. 8.
5. There was no relationship of bailment between the shipowner and a subsequent owner of the goods in the absence of an attornment and there was no attornment in this case.
6. The shipowners owed a duty of care on general principles in respect of stowage of the cargo to all those who might acquire title to the cargo. Since the cause of action in negligence was complete when breach of duty caused physical loss or damage, it followed that only the person with title then could sue. Accrual of the cause of action was not prevented because the breach of duty which led to the damage had occurred before title passed. A cargo owner who had no contract with the shipowner could sue in negligence for cargo damage caused by the shipowner's negligent acts before title passed if title had passed by the time the cargo was lost or damaged.
7. The shipowners were in breach of duty in relation to the inadequate stowage permitted by the master. The scope of their duty was not defined by the terms of the time charter. The owners would normally be entitled to an indemnity from the charterers in relation to any liability arising from a breach of owners' duty caused by the charterers' stowage instructions. The shipowners were therefore liable for cargo damage caused by bad stowage after title passed to the claimants.
8. The claimants were entitled to recover damages in tort in respect of that part of the damage to the cargo which occurred after they acquired title. The part of the total depreciation of the cargo which occurred after shipment was 85 per cent. The court determined when the further damage occurred and when title passed. Where the claimants failed to prove whether any and if so how much damage was caused to the cargo after title passed their claim failed.
9. The claimants should not be allowed to amend to rely on s. 3 of the Latent Damage Act 1986. That point should have been pleaded at the outset. Any such amendment would be unfairly prejudicial to the defendants and could not be compensated in costs.
Colman J:
This is a series of claims for damage to different parcels of timber and plywood carried on board the vessel Starsin on a voyage from three ports in Malaysia to Antwerp and Avonmouth. There are three separate actions. 1996 Folio 237 relates to plywood shipped from Kuching to Antwerp under six bills of lading, the notify party being in each case Makros Hout BV (“the Makros Hout bills”) and to plywood and timber panels shipped from Port Klang to Avonmouth under five bills of lading, the notify party being in each case Fetim BV. 1997 Folio 93 relates to yellow Balau timber shipped from Belawan to Antwerp under four bills of lading, the notify party being in each case Homburg Houtimport (“the Homburg Hout bills”). 1997 Folio 92 relates to plywood shipped from Port Klang to Avonmouth under two bills of lading, the notify party being in both cases Hunter Timber Group Ltd (“the Hunter...
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