Larrinaga and Company Ltd v Société Franco-Américaine des Phosphates de Medulla, Paris
| Jurisdiction | England & Wales |
| Judgment Date | 16 March 1928 |
| Date | 16 March 1928 |
| Court | Court of Appeal |
House of Lords
Lords Finlay, Atkinson, Sumner, Wrenbury, and Carson
Larrinaga and Co. Limited v. Soceite Franco Americaine Des Phosphates De Medulla, Paris
Taylor v. ColdwellENR 3 B. & S. 826
Appleby v. Myers 16 L. T. Rep. 669 L. Rep. 2 C. P. 651
Krell v. HenryELR 89 L. T. Rep. 328 (1903) 2 K. B. 740
Metropolitan Water Board v. Dick, Kerr, and Co. Limited 117 L. T. Rep. 766 (1918) A. C. 119
Distington Hematite Iron Company Limited v. Possehl and Co.,ELR 115 L. T. Rep. 412 (1916) 1 K. B. 811
Re Arbitration between F. A. Tamplin Steamship Company Limited and Anglo-Mexican Petroleum Products Company LimitedDID=ASPM 13 Asp. Mar. Law Cas. 284, 467 115 L. T. Rep. 315 (1916) 2 A. C. 397
Hamlyn and Co. v. Wood and Co.ELR 65 L. T. Rep. 286 (1891) 2 Q. B. 488
Jackson v. Union Marine Isurance Company LimitedDID=ASPM 2 Asp. Mar. Law Cas. 435 31 L. T. Rep. 789 L. Rep. 10 C. P. 125
Bank Line Limited v. Arthur Capel and Co.,DID=ASPM 14 Asp. Mar. Law Cas. 370 120 L. T. Rep. 129 (1919) A. C. 435
Ertel Bieber and Co. v. Rion Tinto Company Limited 118 L. T. Rep. 181 (1918) A. C. 260
Honck v. MullerELR 45 L. T. Rep. 202 L. Rep. 7 Q. B. Div. 92.
Charter-party — Severability of contracts — Frustration
Decision of the Court of Appeal affirmed.
ASPINALL'S MARITIME LAW CASES. 133 H.L.] LARRINAGA & CO. V, SOCIETE FRAMCO AMERICAINE DES PHOSPHATES DE MEDULLA. [H.L. Dec. 4 and 5,1922 ; and March 16,1928. (Before Lords Finlay, Atkinson, Sumnebp Whenbury, and Carson.) Larrinaga and Co. Limited v. Soceite Franco Americaine des Phosphates de Medulla, Paris, (a) ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Charter-party-Severability of contracts-Frustration. By a charter-party dated the 25th April 1913 made between the appellants as owners and the respondents as charterers, it was provided that the owners should provide site steamships to carry parcels of phosphates from T. to D. in the spring and autumn respectively of the years 1918, 1919, and 1920. By reason of the war and the conditions prevailing at the time the first three shipments were not made, but in Oct. 1913 the charterers wrote to the owners demanding fulfilment of the charter-party. The owners refused to nominate a vessel and stated that the contract was at an end. The dispute was accordingly referred to arbitration, and the arbitrator ?? that there was no frustration or abrogation of the charter-party. Held, that there was nothing in the nature of the contract or in the conditions prevailing at the time it fell to be performed, making it impossible for the contract to be performed, and the charter-party was never frustrated. It was a contract for six separate and independent voyages, and although there was a mutual understanding between the parties not to call for the provision of tonnage or cargoes for the first three shipments under the contract during the period of hostilities the rights of the charterers remained intact as regards the three later shipments. Decision of the Court of Appeal affirmed. Appeal from an order of the Court of Appeal (Bankes and Scrutton, L.JJ., Atkin, L.J., dissenting) dated the 1st June 1922 affirming a judgment and order of McCardie, J. on an award in the form of a special case stated by an arbitrator. The appellants were shipowners who before the war had a line of cargo steamers running from the southern ports of the United States of America to Europe. The responusnts owned mines in the United States of America from whicn they shipped phosphates to buyers in (a) Reported by EDWAED J. M. ChAplin, Eeq.. Barrister-at-Law. 134 ASPINALL'S MARITIME LAW CASES. H.L.] LARRINAGA & CO. V. SOCIETE FRANCO AMERICAINE DES PHOSPHATES DE MEDULLA. [H.L. Europe. On the 5ih April 1018 a charter-party was made between the appellants as dispoaents of six steamships to be named fourteen days before readiness to load, and the respondents as charterers. It was for the carriage of six parcels of phosphates from Pert Tampa or Tampa in charterers' option to Dunkirk at the rate of 15s. 3d. per ton. Each of the six parcels was to be 3000-8800 tons, margin in owners' option. The loading dates were the 15th March/15th May, and the 15th Sept./15th Nov. respectively in en ??..i of the years 1918, 1919, and 1920. Clause 15 provided that should the steamer not arrive at her loading port and be in all respects ready to load under the charter on or before the stated dates, the charterers should have the option of cancelling the charter. Clause 20 provided that all disputes which might arise relating to the charter-party should be submitted to arbitration in the usual manner. At the time when the charter-party was entered into two similar contracts dated respectively the 26th July 1912 and the 10th Sept 1912 were in course of fulfilment, and at the outbreak of war in Aug. 1914 there were respectively three and ten voyages as yet unperformed under the said two contracts. In consequence of the change of circumstances caused by the war the charterers waived their right to the first three shipments. By letters dated the 25th Oct. 1918 and the 21st Nov. 1918 the respondents reminded the appellants that they were under contract to carry parcels in 1919 and 1920, and intimating that if peace was signed before the date fixed for the first 1919 voyage they would demand fulfilment of the charter-party, as the Dunkirk buyers had notified that they were expecting delivery. The Treaty of Peace between Great Britain and Germany was signed on the 28th June 1919. On the 27th Aug. 1919 the respondents again wrote to the appellants asking them to name a steamer for the second 1919 voyage. On the 4th Sept. 1919 the appellants replied that they were advised that the war and its incidents had put an end to the contract. The dispute having been referred to arbitration, the arbitrator made an award, holding that there was no frustratio , and assessing the damages at 29,137l. 10s. McCardie, J. affirmed the award. On appeal to the Court of Appeal (Bankes and Scrutton, L.JJ., Atkin, L.J., dissenting) held that having regard to the course of business between the parties, the contract should be treated as a series of separate contracts embodied in one document, and that, although frustrated as to part it might have to be performed as to the remainder and therefore there was no frustration of contract. The shipowners appealed. It. A. Wright, K.C., A. T. Miller, K.C., and Valentine Holmes for the appellants. Jowitt, K.C. and James Dickinson for the respondents. The following cases were cited: Taylor v. Caldwell, 8 B. & S. 826 ; Appleby v. Myers, 16 L. T. Rep. 669 L. Rep. 2 C. P. 651 ; Metropolitan Water Board v. Dick, Kerr, and Co. Limited, 117 L. T. Rep. 766; (1918) A. C.119; Distington Hematite Iron Company Limited v. Possehl and Co., 115 L. T. Rep. 412 ; (1916) 1 K. B. 811; Krell v. Henry, 89 L. T. Rep. 828 ; (1903) 2 K. B. 740 ; The Moorcock, 6 Asp. Mar. Law Cas. 357, 373 ; 60 L. T. Rep. 654 ; 14 Prob. Div. 64 ; Re Arbitration between F. A. Tamplin Steamship Company Limited and Anglo-Mexican Petroleum Products Company Limited, 13 Asp. Mar. Law Cas. 284, 467; 115 L. T. Rep. 315 ; (1916) 2 A. C. 197 ; Hamlyn and Co. v. Wood and Co., 65 L. T. Rep. 286 ; (1891) 2 Q. B. 488 ; Jackson v. Union Marine Insurance Company Linvited, 2 Asp. Mar. Law Cas. 435 ; 31 L. T. Rep. 789 ; L. Rep. 10 C. P. 125 ; Bank Line Limited v. Arthur Capel and Co., 14 Asp. Mar. Law Cas. 370; 120 L. T. Rep. 129 ; (1919) A. C. 435 ; Ertel Bieber and Co. v. Rio Tinto Company Limited, 118 L. T. Rep. 181 ; (1918) A. C.260 ; Honck v. Muller, 45 L. T. Rep. 202 ; L. Rep. 7 Q. B. Div. 92. The House took time for consideration. Lord Finlay.-The appellants in this case are a Liverpool shipping company owning steamers running between Europe and the southern ports of the United States of America. The respondents are the owners of phosphate mines in Florida. A dispute arose between them with reference to a contract made in April 1913 for the chartering of vessels to bring phosphates from Port Tampa in Florida to Dunkirk. An agreement, dated the 19th Dec. 1919, was entered into for reference to arbitration of this dispute, and the matter comes before your Lordships' House upon an award in the form of a special case. The claim of the phosphate company was for failure to provide vessels for the carriage of phosphates to Dunkirk from Port Tampa, and the main case set up on behalf of the Larrinaga Company was " frustration " by reason of the war. The arbitrator by his award, subject to the opinion of the court on points of law on the case stated by him, found that the Larrinaga Company was liable to the phosphate company in damages for their failure to provide steamers for the last three voyages and assessed the damage at 29,137l. 10s. The case in the first instanee came before McCardie, J. who confirmed the arbitrator and gave judgment for the amount assessed. His decision was confirmed in the Court of Appeal by Bankes and Scrutton, L.JJ. (Atkin, L.J. dissenting). The material facts lie in small compass. ASPINALL'S MARITIME LAW CASES. 135 H.L.] LARRINAGA & CO. V. SOCIETE FRANCO AMERICAINE DES PHOSPHATES DE MEDULLA. [H.L. Three contracts for chartering vessels were entered into between the appellants and the respondents. The first (a), dated the 26th July 1012, was for the carriage of four consignments of phosphates, each of 3000 tons, ten per cent, more or less, from Port Tampa to Dunkirk at dates ranging from the 1st July 1013 to the 30th Sept. 1015. The second (b), dated the 10th Sept. 1012, was for eleven consignments, Home of 3000 tons ten per cent, more or less, and some of 4500 tons, ten per cent, more or less, of phosphates, also from Port Tampa to Dunkirk, at dates ranging from the 15th March 1914 to the 28th Feb. 1018. Neither of these two contracts is in question in the present proceedings. The third contract (c) is that to which the present proceedings...
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