Leeds Shipping Company Ltd v Societe Francaise Bunge (The Eastern City)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE HODSON,LORD JUSTICE SELLERS
Judgment Date30 July 1958
Judgment citation (vLex)[1958] EWCA Civ J0730-1

[1958] EWCA Civ J0730-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Hodson,

Lord Justice Romer and

Lord Justice Sellers.

Nautical Assessors: Comnodore T.L. Owen, C.S.E., R.D., R.N.R. (Retired) and Captain G.E. Barnard.

Leeds Shipping Company Limited
Plaintiffs, Respondents
and
Societe Francaise Bunge
Defendants, Appellants

Mr. A.A. MOCATTA, Q.C., Mr. MICHAEL KERR and Mr. BARRY SHEEN (instructed by Messrs. Holman, Fenwick & William) appeared on behalf of the Respondent Plaintiffs.

Mr. EUSTACE ROSKILL, Q.C. and Mr. H.V. BRANDON (instructed by Messrs. Richards, Butler & Co.) appeared on behalf of the Appellant Defendants.

LORD JUSTICE HODSON
1

: The judgment of the Court will be read by Lord Justice Sellers.

LORD JUSTICE SELLERS
2

In a judgment given in the Commercial Court on the 16th July, 1957, Mr. Justice Pearson has held the Appellants, the Defendants in the action, liable to pay damages in respect of severe damage suffered by the Plaintiffs' vessel, the Eastern City, in Mogador Bay, Morocco, where she went aground on the evening of the 28th December, 1949. The damages claimed amount to nearly £ 340,000, but the claim is not agreed and an Order has been made for the assessment of the amount recoverable.

3

The Defendants, who are well-known grain merchants, chartered the Eastern City under a charterparty of the 9th September, 1949, for the carriage of a cargo of barley in bulk from one or two safe ports in Morocco to one safe port in Japan.

4

On the 20th December, 1949, the charterers nominated Mogador as the first loading port. The Eastern City arrived and entered on the 26th December, 1949, and it has been held that the charterers were in breach of their duty under the contract in sending the vessel there, and that the casualty was occasioned by the unsafety of the port.

5

This undoubtedly heavy burden placed on the charterers has been most thoroughly and strenuously challenged before this Court. The evidence of the witnesses and all the documents and material in the case have been most carefully scrutinised, examined and discussed to support the submission that the judgment was wrong in finding that there had been any breach of contract, and further, that even if there had been a breach of contract in its finding that that was the cause of the casualty. It was contended that the misfortune which befell the Eastern City was due to the negligent handling her by the Master and crew. If these submissions fall, it was alleged that the risks of the port were voluntarily encountered and in any event there was a clause in the contract limiting liability to the amount of the freight.

6

In addition to the appeal, there was a Motion by the Appellants to adduce further evidence. Mr. Le Far, the Harbormaster (and pilot, if available) at Mogador, was called as a witness by the Defendants. He had apparently' given a statement to the Plaintiffs' solicitors by whom he was first seen with regard to this litigation, and the Plaintiffs had arranged for his attendance at the trial. The Harbormaster had expressed the view that be did not want to give evidence for either side but wished to be a witness of the Court. His evidence revealed that he was at the time of the trial desirous of modifying any view that he had expressed, or which might exist, of the dangers of Mogador.

7

The Plaintiffs decided not to call him and so informed the Defendants. The Defendants interposed him as a witness at short notice and without seeing him, as It was thought he had to return to his duties in Morocco and would outstay in England much longer.

8

In the course of His evidence the Harbormaster produced the statement he had given to the Plaintiffs' solicitors in 1950. He also produced a report dated the 27th December, 1948, on the "Manceen", another vessel which had visited Mogador and met with difficulties. Both these statements tended to support the Plaintiffs' case that the port of Mogador was not safe.

9

After the trial it appears that an inquiry was held at Casablanca by the Port Authorities or some Government Department, apparently to investigate what Mr. Le For had said and whether it was the accepted and correct view. It was evidence of this inquiry or its findings which, we understood, It was desired to bring before this Court. Learned Counsel in pressing the application on us could not bring It under the rules regulating the admission of fresh evidence, but had to put it on a general submission that he had been taken by surprise and that without the new evidence a grave injustice might be done.

10

M. Le Fer gave evidence orally, and the documents In question, were his and could fairly be advanced as part of his evidence. If the harbour authority or any members of it took a different view, they could have been called. it does not seem to have mattered much who called H. Le Fer. If the Plaintiffs had called him and the Defendants had a Tore favourable signed statement and had cross-examined him on It, the earliest statement, or its substance, would probably have been revealed. In any case, the "Nanceen" statement was. In the witness's possession and would probably have been produced, whoever called him. The witness would have been less than frank if he had concealed the views he had expressed in 1948 and 1950.

11

We found no ground at all on which this suggested new evidence could be adduced on appeal and no ground for any grievance, and, as we stated at the time, the application was refused.

12

The claim is based on this clause In the charter-party: "That the said vessel shall proceed to one or two safe ports in Morocco or so near thereto as she may safely get and be always afloat and there load a full and complete cargo"–.

13

Learned Counsel In opening the appeal stated that before this Court, as before Mr. Justice Pearson, the charterers had to accept that by that clause they warranted to the ship owners that the nominated port, Mogador, would be safe for use by the Eastern City for fulfilling her obligations under the charter party, as ( "The Stork", Campania Javier Marian SEA v. Bo-waters Lloyd Pulp and Paper Mills Ltd. 1955, 2 Q.B. 68) precluded any contrary submission, but he reserved the right to contend hereafter that "The Stork" and the later case before the Judicial Committee of the Privy Council, ( Reardon, Smith Line, Ltd. v. Australian wheat Board 1956 A.C. 266) were wrongly decided.

14

To assist our inquiry the Court was supplied with an excellent model of the port of Mogador and with large scale enlargements of the chart of the port, and in particular of charts which bad been marked in the course of the trial purporting to show the Eastern City in various positions while at anchor, and her ultimate position on the rocks.

15

There are four main questions for consideration.

16

I was Mogador a safe port for the Eastern City when she arrived there? 2. If it was at that time an unsafe port, are the Plaintiffs debarred from attributing the loss they have suffered to the breach of contract by reason of the doctrine of violent non fit injury? 3. Was the stranding of the Eastern City due to the unsafety of the port or to negligence of her Master and her crew? 4. Does clause 13 limit the amount of damages the Plaintiffs can recover for the breach of contract relied on, if established? The clause is "Indemnity for nonperformance of this charterparty, proved damages, not exceeding estimated amount of freight".

17

The first question involves an appreciation of the factors, relevant to this case, which have to be considered In relation to the unsafety of a port. It is well established that the safety or unsafety of a port must be assessed in regard to the actual vessel which has been chartered to use the port. The period for consideration Is at least the whole period of the vessel's use of the port and may take account of dangers likely to be incurred on the voyage to the port. ( Johnston Brothers v. Saxon Queen Steamship Co. 1913, 108 L.T. 564).

18

The safety of the port should be viewed in respect of a vessel properly manned and equipped, and navigated and handled without negligence and in accordance with good seamanship. This may include, where circumstances so require and if available, the engagement of a pilot or the use of a tug or tugs or, especially if such assistance is not available, consultation with a harbormaster or some other responsible person with knowledge and experience of the port.

19

The Plaintiffs placed reliance on the following observations of Lord Justice Morris in "The Stork" at page 105: "There can, I think, be no question as to the meaning of the word 'safe' when used in the context now being considered. A place will not be safe unless in the relevant period of time the particular ship can reach it, remain in it and return from it without, in the absence of some abnormal occurrence, being exposed to danger. It is a question of fact, having regard to the circumstances of each particular case: see the judgment of Mr. Justice Roche in Axel Brostrom & Son v. Dreyfus, & Co."

20

If "remain in it" after arrival is to be taken literally, then by this standard Mogador would be condemned. It was not questioned that in certain conditions of wind and swell it was customary and necessary for the safety of vessels, particularly those as large as the Eastern City, to leave the port for the open sea and to return to the loading anchorage when conditions improved.

21

The learned Judge dealt with the submission in this way: "I think it is possible for a port to be safe even though ships have to leave it in certain 3tates of the weather, provided that all the operations of entering it, going out of it, re-entering it, loading and going out again, can be safely performed, and provided also that there is no appreciable danger of a ship being trapped by the sudden onset of bad weather....

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