Larrinaga Steamship Company v Regem
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Thankerton,Lord Wright,Lord Porter,Lord Goddard |
| Judgment Date | 09 February 1945 |
| Judgment citation (vLex) | [1945] UKHL J0209-2 |
| Date | 09 February 1945 |
| Court | House of Lords |
[1945] UKHL J0209-2
House of Lords
Lord Chancellor
Lord Thankerton
Lord Wright
Lord Porter
Lord Goddard
After hearing Counsel as well on Wednesday the 15th, as on Thursday the 16th, Friday the 17th, and Monday the 20th, days of November last, upon the Petition and Appeal of the Larrinaga Steamship Company, Limited, of 30 James Street, Liverpool, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 22d of November 1943, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of His Majesty's Attorney General (on behalf of His Majesty the King) lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 22d day of November 1943, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The S.S. "Ramon de Larrinaga", which belonged to the Appellants, was on requisition to the Crown on the terms contained in a Time Charter Party in the well-known form T.99A. The Charter Party provided that certain risks of war, including "consequences of warlike operations", should be taken by the Crown and, further, Clause 9 of the Charter Party provided:—
"The Master … shall be under the orders and direction of the Charterer as regards employment, agency or other arrangements; and the Charterer hereby agrees to indemnify the Owners for all consequences or liabilities that may arise from the Master or Officers signing Bills of Lading or other documents or complying with such orders. …"
On October 14th, 1939, the ship, while on service under the Charter Party, grounded on the Petit Charpentier Bank, which is off the coast of France between St. Nazaire and Quiberon Bay. She thereby sustained severe damage, and the Appellants, in their Petition of Right, claim that the cost of repair should be borne by the Crown on two grounds, first, because they allege that the grounding and damage were a consequence of a warlike operation, and secondly, because they resulted from the Master complying with the instructions and orders of the Charterer. Mr. Justice Atkinson, before whom the trial took place, decided the first point in favour of the Crown, holding that the vessel was not at the material time engaged on a warlike operation. But he decided the second point in favour of the suppliants, holding that the order given to the ship at St. Nazaire, under which she proceeded to Quiberon Bay, was an order relating to "employment" within the meaning of Clause 9 of the Charter Party. The Crown appealed to the Court of Appeal (Lord Greene M.R., MacKinnon and du Parcq L.JJ.), and Lord Justice MacKinnon delivered the unanimous judgment of that Court that the present Appellants failed on both points. Hence the appeal of the shipowners to this House.
On the first question, I agree entirely with the conclusion unanimously reached in both Courts below that the proximate cause of the stranding of the ship was not "warlike operations". While loading her last cargo of military equipment at Newport, Monmouthshire, and preparing to carry it to St. Nazaire, then a British war-base, her owners, the present Appellants, were on October 7th, 1939, informed by the Charterers that after that service she would return to Newport (later changed to Cardiff) for a joint survey, as she was being released from Government service. She reached St. Nazaire on October 11th, and her discharge was completed at 4 p.m. on October 13th. Thereupon the Sea Transport Officer at St. Nazaire gave to the ship orders in writing that she should sail for Quiberon Bay with a view to forming part of a convoy about to be escorted to the Bristol Channel. The Acting Master, in view of the bad weather and other conditions, would have preferred to stay in harbour that night, and said so, but he was informed that he must sail at once, as the berth was wanted for another ship. Accordingly, the ship left about 6 p.m. and proceeded down the channel in charge of a pilot. At about 1 a.m., the weather having got worse and visibility being poor, it was decided to anchor. Later, it was thought wiser to go back to St. Nazaire, and in endeavouring to do so the vessel grounded on a bank and was most seriously damaged.
There is nothing in the large body of decisions applying the relevant paragraph in charterparty T99 or T99A to particular instances of damage to requisitioned ships which would justify the view that this stranding was the "consequence of warlike operations". In the case of the Coxwold (Yorkshire Dale S.S. Co. v. Minister of War Transport) [1942], A.C. 691, which is the most recent case in this House on the subject, the Coxwold was admittedly engaged in warlike operations (carrying from one war-base to another military stores for the use of British forces in the field) and the question was whether her stranding was proximately caused by warlike operations. Here the Ramon de Larrinaga was not engaged in warlike operations at all. Mr. Sellers frankly admitted that his case would be the same if the ship had stranded off the Welsh coast while approaching Cardiff. She was attempting to make a voyage without cargo from St. Nazaire to Cardiff and suffered from a marine peril while doing so. The fact that she was ordered by the Sea Transport Officer to leave port sooner than her Acting Master thought wise cannot turn her disaster into the consequence of a warlike operation. The "proximate" or "determining" cause was a misfortune in navigation, not attributable to any warlike operation at all.
On the second question which arises under Clause 9 of the Charterparty, I agree with the conclusion reached in the Court of Appeal, though not with the course of reasoning by which it was reached. Lord Justice MacKinnon, in giving the judgment of the Court, held that the word "employment" in the part of Clause 9 which speaks of "employment, agency or other arrangements" did not refer to the "employment of the ship" pursuant to Clause 1 and Clause 11. He held that "employment" in Clause 9 meant employment of persons. The Lord Justice speaks with such a width of experience and knowledge on the construction of this sort of document that I greatly hesitate to differ from him, but it seems to me very difficult to accept this interpretation, in view of the use of the word "employment" in the earlier Clause. Indeed, before this House, the Respondent conceded that "employment" in Clause 9 did mean employment of the ship, but argued that, having regard to the Charterparty as a whole, it referred only to a limited kind of employment. I have had the advantage of studying my noble and learned friend Lord Porter's Opinion, in which he discusses this question in detail, and I agree with his view of the matter. Even if it were conceded that the order to proceed from St. Nazaire to Cardiff is within the words "orders and direction of the Charterer as regards employment", it still remains true that the stranding of the vessel was not a consequence arising from such an order. It was only an incident which arose in the course of carrying the order out. The Appellants argue that the oral order to leave the port as soon as the discharge was finished is more closely connected as a cause with the result of the stranding. Even so, the connection does not seem to me sufficiently close, and, in any event, that order was not the Charterer's order, but an order given by the Sea Transport Officer at St. Nazaire.
I move that this appeal be dismissed.
My Lords,
I agree with the opinion of my noble and learned friend. I also have had the opportunity of considering the opinion about to be delivered of my noble and learned friend Lord Porter, and, as I agree with it in every particular, I am content to express my complete concurrence in it.
My Lords,
I have had the advantage of reading in print the opinions prepared by my noble and learned friends the Lord Chancellor and Lord Porter. As I agree with them I merely add a few observations on the important question of principle which is raised by the Appellants' claim to an indemnity under Clause 9 of the charterparty. I find myself with all deference unable to take the same view as in the Court of Appeal Mackinnon L.J. did, and out of respect to his authority I think I ought to state briefly in my own words my reasons for differing from him.
The central point of contest is what is meant by the words "employment, agency and other arrangements" occurring as they do in Clause 9. The opposed views are, on the one hand, that they mean "employment of the ship" or, on the other hand, that they mean "employment of persons, stevedores, agents, pilots, tug owners or other persons."
To my mind the former is the sense in which the "employment" is used in this context. It couples up with the words "to be employed in such lawful trades" in Clause 1. It also fits in with the words "agency or other arrangements" with which it is directly associated. All three words have a reference to...
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