Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,LORD JUSTICE SAVILLE,LORD JUSTICE BROOKE: |
| Judgment Date | 18 April 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0418-18 |
| Docket Number | No QBENF 95/0656/C |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 1997 |
[1997] EWCA Civ J0418-18
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE ANTHONY THOMPSON QC
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Lord Justice Saville
Lord Justice Brooke
No QBENF 95/0656/C
MR DAVID BAILEY (Instructed by Holmes Hardingham of London) appeared on behalf of the Appellant
MR JEREMY CAREY (Instructed by MacLeish Littlestone of London) appeared on behalf of the Respondent
The Second Respondent was not represented and did not attend
The 1st defendant, Bowler International Freight Ltd. ("Bowler"), appeals from the order of His Hon. Judge Thompson Q.C. dated 7th April 1995 awarding the plaintiff, Laceys Footwear (Wholesale) Ltd. ("Laceys"), damages and interest of £69,493.30 and costs. Although judgment was also entered against the 2nd defendant, Commercial Fornesa S.A. ("Fornesa"), and in the contribution proceedings entered for Bowler against Fornesa, Fornesa has taken no part in the appeal.
Laceys are wholesalers of shoes. At 263-265 Hackney Road, E.2., they have a substantial place of business to which consignments of shoes imported from Spain were regularly delivered. For some years until October 1992 they had contracted with a haulage company called Wheelers to transport shoes from Alicante to No. 263-265 Hackney Road. Bowler are carriers and forwarding agents with premises at Basildon in Essex. Anxious to increase their business, they had attempted on several occasions to solicit Laceys' custom. Their sales manager had visited Laceys' premises and sought to persuade Mr Jacobs, Laceys' managing director, to use the services offered and had followed up the visits with correspondence. Most forwarding agents and carriers seek to impose their own terms and conditions of carriage and Bowler was no exception. Their business notepaper refers in small letters at the bottom of the page to "Trading Conditions—See Reverse". In even smaller print, under the heading "Bowler International Freight Ltd. Standard Trading Conditions" twenty conditions to which the customer's attention was drawn were printed on the reverse side. A copy of the conditions in larger print was available on request.
Mr Jacobs in evidence agreed that on approximately five occasions between 1985 and February 1991 he had received letters from Bowler on their business notepaper. On the last occasion in February 1991 the letter followed a visit by Mr Colman, the defendant's sales manager, accompanied by Maria Martinez from Bowler's Alicante office. With that letter Bowler sent a proposal dated 28th February setting out rates for the carriage of shoes FOB Alicante-London E.2., excluding Customs clearance, at rates of carriage quoted per pair of shoes. The quotation excluded All Risks insurance but offered a service schedule two times per week using their own driver and accompanied BIF/Fornesa trailers. Fornesa were described as "overseas correspondents". A further meeting between Mr Colman and Mr Kingcott of Laceys took place in October 1991 but again no business resulted. On 26th October 1992 Mr Jacobs telephoned Bowler indicating that he was interested in using their services and asking whether the rate quoted for carriage of ladies shoes in February 1991 of 18p. per pair was still available. Mr Jacobs suggested that Bowler should load a consignment of 150 cartons to leave the following Tuesday if possible. He also sought a quotation for the cost per pair for insurance based on values between £107–£12 per pair.
In evidence Mr Jacobs explained, and Mr Colman accepted, that his request for insurance cover on the telephone was for Bowler to effect full insurance cover to 110% of the invoice value of the consignment of shoes. Further Mr Jacobs explained that he had had a previous experience where a consignment of shoes had gone astray because it was delivered to a different address. He was therefore particularly concerned to ensure that the driver was properly instructed to make the delivery only to Laceys' address at 263–265 Hackney Road in East London.
Mr Colman at once sent a fax to Maria Martinez of Fornesa in Alicante seeking confirmation of the quotation, dispatch and insurance. That afternoon Miss Martinez confirmed the rate of 18p. per pair and that she could load on Wednesday for delivery to London on Friday. Insurance would be at the rate of .25%.
Mr Colman then advised Mr. Jacobs what he had been told and by a letter of 28th October 1992 sent a detailed quotation for Laceys' consignments. The letter referred to Bowler's trading conditions on the reverse in the same way as the previous letters. The quotation was FOB Alicante delivered London E.2., but excluding Customs clearance. It was for ladies shoes to be charged at 18p. per pair with a minimum charge of £18 and Customs clearance of £15 per consignment. Insurance was .25% based on a value of £10–£12 per pair. The service schedule was two times per week on accompanied trailers. Mr Jacobs accepted this quotation by letter of 29th October 1992. He agreed the rates of 18p. per pair and confirmed his requirement for full insurance at .25% of invoice value to include the normal 10%. He added:
"Please ensure that the driver is aware that he can only deliver to one address as advised." Bowler agreed these terms.
It was common ground that the contract was governed by the terms of the Convention on the Contract for International Carriage of Goods by Road ("CMR").
On 30th October Fornesa sent their driver, Mr Royo, to collect a consignment of 269 cartons of shoes marked "Laceys Footwear" onto his trailer. The driver was given instructions to drive to Slough and report to the offices of CIT International Freight who acted as U.K. agent for Fornesa. On 3rd November 1992 CIT's import manager, Mr Hugh O'Kerwin, was at CIT's Perth Trading Estate premises at Slough when the trailer driven by Mr Royo arrived from Alicante. Mr Royo showed Mr O'Kerwin the CMR documentation and, as the principal delivery was the consignment of 269 shoes for Laceys in Hackney Road, Mr O'Kerwin contacted Bowler so that he could give instructions Mr Royo. Mr O'Kerwin was told expressly by Bowler that Laceys' consignment was not to be off-loaded anywhere but 263-265 Hackney Road, E.2. These express instructions were then given to Mr Royo, both by Mr O'Kerwin and by a Spanish speaking employee of CIT, Anna Garcia. It had been agreed that the consignment would be delivered at 09.00 hrs. the following day. Mr O'Kerwin said that he and Anna Garcia both told Mr Royo that the delivery to Laceys was very urgent and that under no circumstances was he to permit off loading of the goods anywhere other than 263-265 Hackney Road, E.2.
There is no doubt that Mr Royo was given the plaintiff's address and the judge accepted that the instruction was given to him in Spanish and that he acknowledged that he understood it.
The following day Mr Royo left Slough for London. He arrived in Hackney Road and was looking for No. 263-265. What happened next is taken from his own account given to the police on the following day, 5th November. He apparently stopped outside No. 243 and before he had time to get off the lorry he saw a man approaching him who greeted him in Spanish. Mr Royo showed him the consignment note relating to the consignment of shoes and said in Spanish: "You client?", pointing to Laceys' name on the papers. He got no reply but got off the lorry and asked in Spanish: "Unload? Where?" From gestures made by the man to whom he was speaking, he understood "further on" and so he got back into the lorry and drove about 100 metres to a place where the road widened. He must thus have driven straight past the plaintiff's premises, Nos. 263-265, which have a distinctive frontage with Laceys' name clearly to be seen. On getting down from his lorry with the papers, he met the man now joined by another person. The first man said: "Possible tomorrow?" Mr Royo answered: "No", asked for a telephone and understood it was broken. There was a telephone box nearby and Mr Royo rang CIT's office in Slough and, according to him, was told that if he could not deliver the cargo that day they would not see the shoes for twenty-five days. He then returned to the two men and said: "I either deliver today or on 20th November 1992".
From gestures Mr Royo understood that the lorry was too big and that it was impossible to unload there. The first man said: "Three kilometres", showing three fingers and gave him to understand that the goods would be loaded in another lorry. He then allowed himself to be directed to another place. During the journey he thought from conversation that the stranger who accompanied him was a representative for shoes. Guided by this man he drove to an industrial estate where there were no premises. There Mr Royo allowed the plaintiff's consignment of shoes to be off-loaded from his vehicle in the road directly into another vehicle. While this was done Mr Royo went with one of the men for refreshment. When the shoes had been transferred onto the other lorry which seemed to have no marking, he gave the men the papers relating to the consignment. They then vanished with the shoes and the papers. After waiting about fifteen minutes, Mr Royo rang CIT office at Slough to be told that Laceys were actually waiting for the goods and complaining that they had not been delivered as agreed.
Mr Royo gave his account to the police with the aid of an interpreter. Mr O'Kerwin in evidence told how he had received a telephone...
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