Howard v Shirlstar Container Transport Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,LORD JUSTICE TAYLOR |
| Judgment Date | 16 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0516-5 |
| Date | 16 May 1990 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0470 |
[1990] EWCA Civ J0516-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE GOWER Q.C.)
Royal Courts of Justice
The Master Of The Rolls
(Lord Donaldson)
Lord Justice Taylor
Lord Justice Staughton
90/0470
and
MR. ANDREW LONGMORE Q.C, (instructed by Messrs. Holman Fenwick & Willan) appeared for the Appellants (Defendants)
MR. NICHOLAS YELL (instructed by Messrs. Freed Stone Goodman) appeared for the Respondent (Plaintiff).
I shall ask Lord Justice Staughton to deliver the first judgment.
In 1984 the first defendants (whom I shall call "Shirlstar") were the owners of two aircraft which had been let out on hire. The hirers were British companies, but de facto the hire was in each case to a person of importance in Nigeria. The hire instalments were overdue, and Shirlstar wished to recover the two aircraft which were in Nigeria. In addition to any other difficulties they may have faced, there had been a coup d'etat in Nigeria in December 1983, when the existing government was overthrown and replaced by a military junta.
In the result, Shirlstar made two contracts on 10th May 1984 with the plaintiff, Captain Howard. He was a qualified pilot. Each contract provided for him to attempt to recover one of the aircraft and fly it to Hurn airport near Bournemouth. He was to be paid a fee of £25,000 in two equal instalments, plus some expenses, on terms which I shall need to consider carefully. He secured the services of a young lady called Miss Spalding, to whom he was engaged, as wireless operator. She took what the judge called a crash course in wireless operation, and obtained the necessary certificate.
Captain Howard and Miss Spalding flew to Lagos, arriving on 11th May. They found one of the two aircraft, with the signal letters 6 LORI, parked on grass at the airport. They were able to prepare it for take-off with the assistance of two British engineers who were there, and without becoming involved in any illegality as far as we are aware.
Meanwhile, they had various conversations with Mr. Haslam, Second Secretary in charge of commercial affairs at the United Kingdom High Commission, and with Mr. Odigwe, the acting head of the Federal Civil Aviation Department. I shall have to return later to the substance of those conversations. Then, on 20th May in the evening, they took off in the aircraft, without obtaining permission from air traffic control at the airport. Captain Howard had not sought permission because he knew that it would not be granted. What followed was described by the judge and, although it is not essential to this judgment, the description bears repeating:
"Captain Howard became aware of a MIG fighter aircraft which he took to be interested in him and 6 LORI—and I doubt not that he is right in that assumption. He thought it likely that that aircraft would be armed with a heat sensitive missile, a missile being sensitive to the heat of the exhaust of a plane, and so what he did was to fly very low over the sea; indeed he said at a height of 15 to 20 feet over the surface of the sea. The point of that was twofold: (a) because at that altitude the aircraft would not show up on a radar screen, and (b) because the sea in those latitudes being very warm, the heat rising from the surface of the sea would confuse the missile by in effect masking the warmth from the exhaust. There was a further consideration which was that by flying at that very low altitude he would make it necessary for the MIG fighter, if it were minded to attack him using its guns, to do so at a very sharp angle to the surface of the sea. He changed course several times and eventually was able to take advantage of what he described as a slight rain squall. He flew behind the squall, evaded the fighter. He was listening over his radio to signals—conversations going on between air traffic controllers. There came a stage when he was in range of the airport at Accra. He received an invitation to land there from the Accra air traffic control authorities. They appeared to read out some kind of prepared statement from which it was clear that they were acting on the instigation of the Nigerian authorities. He thought better of that notion and made for Abidjan, the principal airport on the Ivory Coast, and there he landed. His take-off was some time a bit before six o'clock in the evening—the flight as I understand it took half an hour.
When he and Miss Spalding landed at Abidjan there was a reception awaiting them. Nigerian authorities had been in communication with the Government of the Ivory Coast. Captain Howard and Miss Spalding were placed under arrest and spent the night in a detention cell at the airport. The Ivory Coast, as I understand it on the evidence before me, was formerly a French colony, and those who are concerned with the running and management of that country have a civilised and Gallic approach to life, as I was informed, so it was not long before Miss Spalding and Captain Howard, having been interrogated, were removed from the rigours of the detention cell to the comparative comfort of the Hilton Hotel, and there they stayed for some days. In the meanwhile a flurry of activity went on. The Nigerian authorities arrived in the form of a small team, one or two civilians and an Airforce officer. In the meantime, in Lagos, a very unfortunate thing happened. The two engineers who helped to get the aircraft ready had been arrested and charged with conspiring with Captain Howard to steal the aircraft."
On 26th May Captain Howard was able to send a telex stating that the aircraft had left Nigerian airspace. This, under the terms of the contract, was relevant to payment of the first instalment of the fee. It was paid, either on 26th or 27th May.
The Ivory Coast government was urged by representatives of Shirlstar to allow Captain Howard, Miss Spalding and the aircraft to proceed to the United Kingdom, and by the Nigerian government to return all three to Nigeria. It adopted a middle course, permitting Captain Howard and Miss Spalding to come here but handing the aircraft over to the Nigerian government. It has never been returned to Shirlstar. The two engineers in Lagos were tried and sentenced to long terms of imprisonment, but the Nigerian Court of Appeal quashed their convictions, and they too eventually returned to this country.
Captain Howard sues in this action for the second instalment of his fee, amounting to £12,500. Shirlstar counterclaimed for the return of the first instalment. His Honour Judge Gower Q.C., sitting as a judge of the High Court, held that the claim succeeded and the counterclaim failed. Shirlstar now appeal against the judgment against them on the claim, but they no longer pursue their counterclaim.
There are two issues. The first is whether, on the true meaning of the contract, the second instalment of the fee has ever become due. It seems to me that Shirlstar's argument would apply equally to the first instalment; but as I have just said, they no longer claim that it should be returned. The second issue is whether, if Captain Howard otherwise has a valid contractual claim, it is defeated by illegality under Nigerian law.
Construction
The material terms of the contract were as follows:
"1 The Company will pay to captain Howard the sum of TWENTY FIVE THOUSAND POUNDS (£25,000) for successfully removing the aircraft or organising the removal of the aircraft from Nigerian territorial airspace
2 The said sum of £25,000 shall be paid by the Company into a joint account at Lloyds Bank plc, 21 Station Avenue, Caterham, Surrey in the joint names of Nicholas John Munns and Stanley Sherwin Beller, the respective parties' Solicitors on or before the date hereof
3 The Company hereby irrevocably authorises Stanley Sherwin Beller to sign a release or transfer the sum of £12,500 to Captain Michael Roy Howard or as he may direct as soon as they have in their possession a telex confirmation from Captain Howard that he has removed the aircraft from Nigerian territorial airspace and to release or transfer the balance of £12,500 as soon as either
(a) the aircraft is delivered to the United Kingdom a British protectorate or a country being a member of the European Economic Community; or
(b) one month after the date of the telex confirming that the aircraft has been removed from Nigerial territorial airspace".
There is then a proviso about interest.
"4 Captain Howard agrees that he will use his best endeavours to try and recover possession of the said aircraft provided that he shall be entitled to abandon any attempt to recover the said aircraft if he in his reasonable judgment feels that there is an unacceptable personal risk to himself or his Co-pilot.
5 Captain Howard agrees that once he has recovered possession of the aircraft to ferry the aircraft from Nigerian territorial airspace to Hum Airport or any other U.K. airport or if necessary an airport in a British protectorate or E.E.C. country without any delay whatsoever excepting serviceability and operational delays."
The argument for Shir1star depends on the word "successfully" in clause 1. It is said that, unless the aircraft has been removed from Nigerian territorial airspace successfully, no fee is payable; and that this did not happen because the aircraft was detained at Abidjan and subsequently returned to Nigeria.
If that be the correct interpretation of clause 1, it is difficult to reconcile with clause 3. That provides for payment of...
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