Marina Shipping Ltd v Laughton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE OLIVER |
| Judgment Date | 11 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1211-1 |
| Docket Number | 81/0494 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1981 |
[1981] EWCA Civ J1211-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. Justice Parker sitting in the Commercial Court)
Royal Courts of Justice
Lord Justice Lawton,
Lord Justice Brightman
and
Lord Justice Oliver
81/0494
1981 M. No. 5074
and
Mr. LEONARD HOFFMANN, QC, and Mr. C.W.F. NEWMAN (instructed by Messrs. Clifford-Turner) appeared on behalf of the Appellants ( Defendants)
Mr. ROGER BUCKLEY, QC, and Mr. T.R. CHARLTON (instructed by Messrs. Holman Fenwick & Willan) appeared on behalf of the Respondents (Plaintiffs).
( )
This appeal concerns the blacking by two named officials, a Mr. Brian Laughton and a Mr. Harry Shaw, of the International Transport Workers Federation (to whom I shall refer as "ITF") of the motor vessel "Antama", which is now berthed in the Alexandra Dock at Hull. The reason for the blacking is familiar to the court, namely, ITF, which is a federation of national trade unions in 85 countries representing transport workers of all kinds, including seamen, has decided to exercise its industrial muscle with the object of trying to persuade the owners of the "Antama" to pay its crew at the same rates as are paid under collective agreements negotiated by trade unions for ships on their national registers in European countries outside the communist bloc.
Had this blacking occurred before 1st August 1980, when the Employment Act 1980 came into force, the owners of the "Antama" would have had no remedy against either the ITF or its officials for what they had done. The owners claim that, as a result of the 1980 Act, they now have a remedy against the officials who initiated, and took steps to enforce, the blacking, because what was done was unlawful secondary action as defined in that Act. The two officials claim that it is not unlawful secondary action.
Mr, Justice Parker adjudged, on the 4th December 1981, that it appeared to be unlawful secondary action and granted an interlocutory injunction in wide terms against the two officials with the object of stopping the blacking so that the vessel could sail. The two officials have appealed to this court. We heard the appeal as soon as we could. As all the events which we have had to consider occurred within a few days before the 4th December 1981, the evidence before the court has not been as full as both we and the parties would have liked it to have been. We have done the best we can with what we have.
The "Antama" is a vessel of 3,988 gross tonnage. In July 1981 its registered owners were a Panamanian company. By a time charter in the New York Produce Exchange form made in Antwerp on 28th July 1981, it was let on hire to a Belgian company named Flanders Trading and Shipping Pvba for a period of six months, one month more or less, in charterers' option. Clause 2 of the charterparty provided as follows: "That the charterers shall provide and pay for all the fuel except as otherwise agreed, port charges, pilotages, agencies, commissions, consular charges (except those pertaining to the crew), and all other usual expenses except those before stated, but when the vessel puts into a port for causes for which vessel is responsible then all such charges incurred shall be paid by the owners".
Clause 8 was in these terms: "That the captain shall prosecute his voyages with the utmost despatch, and shall render all customary assistance with ship's crew and boats. The Captain (although appointed by the owners) shall be under the orders and directions of the charterers as regards employment and agency; and charterers are to load, stow, trim the cargo at their expense under the supervision of the captain, who is to sign bills of lading for cargo as presented, in conformity with mate's or tally clerk's receipts".
Clause 30 was as follows: "The charterers shall not be held responsible for loss or damage to the vessel and/or cargo through the negligence of pilots, tugboats. The owners to remain responsible for the navigation of the vessel, insurance, crew and all other matters same as when trading for their own account".
Some time after that charterparty was signed the ownership of the "Antama" was transferred from the Panamanian company to the plaintiff company, Marina Shipping Ltd., which is a company incorporated according to the laws of Malta. The beneficial owner of the vessel is a Turk named Cetim Akkan.
On 3rd November 1931, when the ship was under the control of the charterers, it loaded a cargo of just over 4,000 tonnes of palm kernel in Panama. That cargo was to be delivered as to approximately three-quarters in Hull and as to the remaining quarter in Hamburg. After unloading in Hamburg it was the intention of the charterers that the vessel should go to Antwerp to pick up another cargo and it was hoped the vessel would be there by about 7th December 1981.
The vessel left the Caribbean on or about 3rd November 1981 and the inference is that on about 18th November it had passed the Lizard on its way up Channel to Hull. On 18th November a firm of shipping agents at Hull, named General Freight, were apprised by the charterers' agents that the vessel was in home waters and approaching Hull. Thereupon General Freight, as agents, got in touch with the port authority at Hull, alerted them that the vessel was shortly due and arranged a berth for her in the Alexandra Dock. There is no evidence before the court at the present time as to whether General Freight, as agents, told the port authority at Hull for whom they were acting. The inference is that the port authority at Hull knew General Freight and were willing to deal with them without making enquiries as to whom they were acting for. I draw that inference from the form in which certain invoices for pilotage services were subsequently rendered, the port authority and its agents making out the invoices to General Freight.
On or about 20th November 1981, when the vessel was approximately two days out of Hull, General Freight made further arrangements with the port authority for the reception of the vessel. On 21st November General Freight sent a telex to the offices of Spurn Pilots for the attention of the pilot services. That telex read as follows: "M.V. Antama—This vessel gives her expected time of arrival Spurn Pilot as 1100 hours tomorrow. She is in cargo and bound for Alexandra Dock, Hull where berth is available. Please attend". Pilot services were provided. The vessel took more time than was expected in getting into the dock but in fact docked on 23rd November 1981.
Its crew at that time numbered 20. There was a Belgian master; the chief officer and the first engineer were Filipinos; the rest of the crew were Turkish. After the ship had docked some 14 members of the crew, all Turks, approached the ITF with complaints about their conditions of service and, in particular, about their pay under the articles which they had signed. The second defendant, Mr. Shaw, went on board, investigated their complaints and came to the conclusion that the crew were not being paid in accordance with the European standards of pay and communicated with the headquarters of ITF and, as a result of so doing, he was instructed by the first defendant, Mr. Laughton, to make demands upon the owners of the "Antama". Those demands were in a form which is familiar to the courts and has been considered on a number of occasions and, in particular, by the House of Lords in the case of N.W.L. Ltd. v. Woods (generally known as " The Nawala") (1979) 1 WLR 1294.
Mr. Shaw, the local representative of ITF, demanded not only that the crew should be paid at the rates which his union thought appropriate for Europe but he also demanded (again as is the practice of ITF when carrying out this kind of investigation) that the crew should be given back pay from the time they signed on articles. Such back pay required the outlay by the owners of US$129,000. The demands of Mr. Shaw, acting on behalf of ITF, were communicated to the beneficial owner, who said that he had not got the money with which to meet such a demand and, if it was persisted in, he would have to sell the vessel. That did not intimidate either Mr. Shaw or the more senior official in London, Mr. Laughton, and it was decided by ITF that the ship should be "blacked". The form the blacking was to take was to inform the appropriate affiliated unions, that is to say, the National Union of Seamen, the National Union of Railwaymen and the Transport and General Workers' Union. The object of informing them that the vessel was being blacked was to deprive her of the services of the members of those three unions which would be required for moving the vessel out of port. The Transport and General Workers' Union members worked the tugs which would be necessary to get the vessel out of the dock. The National Union of Railwaymen members operated the lock gates.
There is no doubt at all in this case, and it has never been contested, that the result of the order to "black" the "Antama" was that the members of the National Union of Railwaymen, acting as lock-keepers, refused to operate the lock gates for the benefit of the vessel and that refusal inevitably involved those lock-keepers breaking their contracts of employment with the British Transport Docks Board, who were the port authority.
The British Transport Docks Board operates under statutory powers. There are a number of them. The relevant one for the purposes of this case is the Harbours, Docks, and Piers Clauses Act 1847.
Whilst all this was going on, the...
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