Louis Dreyfus & Cie v Parnaso Cia. Naviera S.A.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE ORMEROD,LORD JUSTICE HARMAN |
| Judgment Date | 23 February 1960 |
| Neutral Citation | [1960] EWCA Civ J0223-1 |
| Date | 23 February 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0223-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers,
Lord Justice Ormerod and
Lord Justice Harman.
MR A.A. MOCATTA, Q.C. and MR MICHAEL KERR (instructed by Messrs Holman, Fenwick & Willan) appeared as Counsel on behalf of the Appellants (Defendants).
MR R.A. MacCRINDLE (instructed by Messrs Richards, Butler & Co.) appeared as Counsel on behalf of the Respondents (Plaintiffs).
( as revised).
This is a claim by way of declarations involving no more than £155 and it can be answered in favour of the Appellants, in my judgment, on one of the three grounds on which they rely, namely, that the shipowners took on board approximately 10,400 tons, which was in fact a full and complete cargo. If they did that they were under no obligation to do more on any view of this case which has been advanced before us.
By a charterparty of the 4th November, 1957, the Defendants, as owners of the S.S. "Denominator", chartered her to the Plaintiffs. Clause 1 of the charterparty provided that the vessel should proceed to La Pallice "and there load a full and complete cargo of not more than 10,450 tons and not less than 8,550 tons wheat in bulk, quantity in owners' option to be declared by the Master in writing on commencement of loading" — and then omitting some words — "which the charterers bind themselves to ship, and being so loaded the vessel shall proceed to Karachi". The freight was on a tonnage basis.
The vessel proceeded to La Pallice and, on the 23rd November, the Master gave the notice purporting to be a declaration in writing under clause 1 of the charterparty, and that was in this form: "I the Master V. Roussos of the steamer 'Dominator' … notify you that I shall require 300 tons wheat in bags for loading and the approximative cargo to the holds will be as follows; No. 1 hold 1,600 long tons, 2 hold, 3,000 long tons, 3 hold 2,000 long tons, 4 hold 2,150 long tons, 5 hold 1,650 long tons, total 10,400 tons", and then that was signed by Captain Roussos, the Master.
The vessel was down to her marks (winter marks) when she had loaded 10,069 tons, that is 331 tons short of 10,400 tons. The charterers were ready to load the whole of the 10,400 tons, and incurred the expense claimed in the action by reason of the balance of the goods not being shipped.
Mr Justice Diplock held that once the Master had declared the quantity to be carried the quantity of cargo which the ship was bound to load and the charterers were bound to ship was the quantity so declared. The learned Judge then stated that "approximative" is a word which has no defined limits of tolerance and he construed the declaration as if it was for 10,400 tons with an obligation limited only by those limits of tolerance which the de minimis rule imports. The Master was a Greek and when he said "approximative" in my view he was saying the same thing in respect of quantity as the agents had said in a letter of the 8th November: "it is anticipated the vessel will lift a cargo of about 10,400 long tons".
I would regard 331 tons deficiency in a cargo of 10,400 tons, a deficiency of just over 3 per cent, as fulfilling the obligation to ship about 10,400 tons: see Morris v. Levison, Law Reports, (1876) 1 Common Pleas Division, page 155, and "The Resolven", 9 Times Law Reports, page 75. In the absence of any trade evidence on the matter, it is in my opinion within a reasonable commercial margin in respect of such a cargo.
Mr MacCrindle argued strenuously that a declaration by the Master at the commencement of loading could be and was intended to be precise, and to state "about" was not in accordance with the requirement. The declaration was, however, accepted without complaint, and I do not think it should be read by either party in assessing their rights and obligations as if "approximative" was not there. It is still a statement of quantity much narrower in its latitudes than the wide range in the charterparty.
That is sufficient to decide this case in favour of the Appellants. But Mr Mocatta invited us to go further and to hold that the declaration had not the effect alleged by the charterers and found by the learned Judge, that whatever quantity the Master declared within the limits specified in the charterparty was to be deemed to be a full and complete cargo for the purposes of the charterparty. He submitted that such a declaration by the Master could not be interpreted so as to alter the contractual liability under the charterparty, and was merely an intimation to the charterers as a matter of convenience to give them a closer idea of the anticipated cargo required within the very wide limits of 8,550 to 10,450 tons. The alternative submission was that the declared quantity became the maximum quantity the ship could demand in substitution for the charterparty maximum of 10,450 tons. As the charterers were, apart from the declaration, not only obliged but entitled to load a full and complete cargo up to 10,450 tons, if the Master was able to declare a lower quantity which became binding whether the ship were fully loaded or not, he could, in variance of the charterparty, deprive the charterers of their right to load a full cargo if they wished to do so. If the declared quantity was to be deemed a full and complete cargo, then, it was said, no meaning remains in the words "and there load a full and complete cargo".
These are substantial arguments, and it is perhaps surprising that charterers are prepared to contend that the phrase "quantity in owners' option to be declared by the Master in writing on commencement of loading" does make drastic inroads on what would without it have been their rights.
Without the declaration, the charterparty would require the charterers to load and the shipowners to receive a "full and complete cargo" within the...
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