Marston Excelsior Ltd v Arbuckle, Smith & Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE ORR |
| Judgment Date | 18 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0618-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 1971 |
[1971] EWCA Civ J0618-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from Judgment of Mr. Justice Thesiger dated 13th October, 1970.
The Master of the Rolls (Lord Denning)
Lord Justice Phillimore and
Lord Justice Orr
Mr. ANTHONY LLOYD, Q.C., and Mr. JULIAN COOKE (instructed by Messrs. Lawrence Jones & Co.) appeared on behalf of the Appellant Defendants.
Mr. C.M. CLOTHIER, Q.C., and Mr. PETER CRAWFORD (instructed by Mr. J.S. Copp) appeared on behalf of the Respondent Plaintiffs.
In January, 1968, an English company, Marston Excelsior Ltd., were in negotiation with an Austrian company called Voest, near Vienna. It was proposed that Marston Excelsior should build at Wolverhampton a big steel "cold box" and transport it to Austria for use in a factory there. Originally this cold box was to weigh 45 tons. But it turned out to weigh over 70 tons. It was 70ft. long, 14ft. high and 16ft. wide. In due course a contract was concluded whereby Marston Excelsior agreed to make and to sell this big cold box to the Austrian buyers and to deliver it at Vienna for a sum in excess of £100,000. That sum included a considerable figure for transport. The English sellers had the task of getting this cold box from Wolverhampton to Vienna. One possibility was to take it by sea through the Mediterranean, then through the Black Sea, and up the Danube to Vienna. The other possibility was to ship it across to Europe and take it in part by river, in part by road, across Europe and then down the Danube to Vienna. Eventually it was decided to take it by road from Wolverhampton to Tilbury, by ship from Tilbury to Rotterdam, by barge up the Rhine and the Main to Bamberg, by road along the Autobahn from Bamberg to Regensburg by barge from Regensburg down the Danube to Vienna. As will appear later, there was trouble with the road transit in Baveria from Bamberg to Regensburg.
The transport arrangements were as follows: Marston Excelsior Ltd. (who had experience of transport in England) themselves arranged for the transport of the cold box by road to Tilbury and across the sea to Rotterdam. Marston Excelsior had no experience of European transport. They entrusted all the arrangements to a firm called Arbuckle Smith & Co. Ltd.,who carry on business in Lower Thames Street in the City of London. They are forwarding agents. They have not any ships or carriages of their own. They make transport arrangements for others. In February and March, 1968, Arbuckle Smith got quotations for the transport. At that time it was thought that this cold box would weigh about 45 tons. By May it was estimated that it would weigh 60 tons. Arbuckle Smith got in touch with a German firm called Rhenania. They are an important firm with fleets of barges on the Rhine. Their headquarters are at Mannheim. They contracted to carry the cold box from Rotterdam through to Vienna. But Rhenania were not road carriers themselves. They sub-contracted the road transport to a firm called Schmidbauer. That firm were specialists in the carriage of heavy loads by road. They were well known in Bavaria. They had their own tractors and low loaders. They professed to be experts in the carriage of big articles, such as this cold box.
In May 1968 Rhenania gave a quotation to Arbuckle Smith. They offered to take a cold box of 60 tons right through from Rotterdam to Vienna for DM 53,000. In addition, there was a charge of DM 2500 for the special police permits. The offer was subject to Rhenania's usual conditions. Having received that quotation, Arbuckle Smith on 6th June, 1968, wrote a letter to Marston Excelsior, saying: "I enclose now a quotation received from Germany stating that movement up to Freudenau Wharf would be possible." The enclosed quotation was in English. It purported to be a translation of the actual quotation given by Rhenania to Arbuckle Smith. But it was not an accurate quotation. Arbuckle Smith added on 10%. Instead of putting the quotation at DM 53,000, they put it at DM 58,700.
Marston Excelsior treated the quotation as accurate. On the faith of it, they decided to go ahead. They wrote to Arbuckle Smith, saying that they would be entrusted with the shipment. They asked them to re-examine the quotation to see if they could get a reduction.
In the following weeks, however, the cold box got bigger and bigger. On 15th August, 1968, Marston Excelsior gave to Arbuckle Smith the amended dimensions, as near as could be given. It was to be expected to be 72ft. long, 16ft. wide, lift. high. Then this important factor:
"The weight displacement from the datum line is approximately 20 tons on the first bogey platform and 45 tons in the other platform."
Drawings of the box were enclosed. Thereupon Arbuckle Smith very properly sent those drawings and a copy of the letter on direct to the road transporters, Schmidbauer. They asked Schmidbauer whether or not they had comments to make. Schmidbauer did not reply. Arbuckle Smith pressed time after time. Eventually, by cable they did so, and they got this important answer of 13th September, 1968:
"Transport can be made without alteration as per drawings. We apologize for the late information.
On getting that answer, Arbuckle Smith assumed that Schmidbauer were satisfied that they could carry out this road transport without difficulty in any way, even on these latest drawings. At the end of November 1968, Mr. Marx, who was handling this matter for Arbuckle Smith, went out to Germany. He speaks German well, being of German origin. At Mannheim he saw the people concerned in the transport. He saw Schmidbauer. He got all the particulars, and made out a detailed timetable.On 9th December, 1968, he sent it to those concerned, together with a note saying that "Schmidbauer will apply for road permits on the strength of a new drawing for the box". On 20th December, 1968, Schmidbauer himself came over to England. He went to Wolverhampton and saw the Marston Excelsior people and Mr. Marx of Arbuckle Smith. Then and there the question of the permits was discussed. Everyone assumed it was Schmidbauer responsibility. They were doing the road transport. Schmidbauer seem not to have realised until then that this load was unevenly distributed. Arbuckle Smith made a note of the meeting in which they said:
"We are now informed that the total weight of the box is 65 tons, of which tons are for the first half and 20 tons for the second half. This represents difficulties as the low loader of Schmidbauer has to sutain additional weights on the first bogies. Schmidbauer is, however, confident that he can overcome these difficulties, and the bogies strengthened to take these weights."
At the meeting Scmidbauer said that application for road permits had been made to the Bavarian authorities, and added: "Approval expected in less than one week." So Schmidbauer represented at the meeting that there were no difficulties. Accordingly, Marston Excelsior went on with the preparation for the transit. It was to start in January 1969, to arrive in Vienna by March 1969. All arrangements were made with the English authorities.
Before the transport started, Arbuckle Smith tried to make sure that all was in order with the permits for the road transport. On 17th January, 1969, Schmidbauer wrote to Arbuckle Smith, saying:
"The Government of Upper Bavaria and the Bavarian building authorities have already agreed to the transport. Unfortunately however the permit was not extended to the Land of Baden-Wurtemberg, so that a transport from Mannheim to Regensburg is not possible. The box could, if necessary, be transported from Bamberg to the Austrian frontier. So far we do not have the permit from the police authorities. The reason for this however is that we were not able to carry out route reconaissance until the last few days."
On 21st January, 1969, Arbuckle Smith write to Marston Excelsior passing on that information:
"I have also received information from Schmidbauer in Munich stating that the Government of Bavaria has agreed to transport from Bamberg to Regensburg overland…. I feel we have to concentrate on the overland route Bamberg to Regensburg."
As everything appeared to be in order, the transit was started. On 25th January, 1969, the cold box left Wolverhampton. On 1st February, 1969, it got to Tilbury. It was there weighed as it was loaded on to a coaster. It was found to be 70 tons In all — 45 tons at one end and 25 tons at the other. It arrived at Rotterdam on 3rd February, 1969. It was loaded into a river barge. The transport across Europe was undertaken by Rhenania as head contractors. On 6th February, 1969, Rhenania issued a way-bill (or through-bill of lading for the transport from Rotterdam to Vienna. It stated:
"Transport by road crane at Bamberg and Regensburg and transportation by road from Bamberg to Regensburg at the risk of Messrs. Schmidbauer of Munich."
The cold box was taken by river to Bamberg, where it arrived on 13th February, 1969. On arrival at Bamberg, the trouble arose. There was no road permit from the Bavarian Building Authority. They were the relevant authority responsible for roads. They had never given their permission for this transit. Schmidbauer had never applied to them for permission. The Bavarian Building Authority said that the weight of this load was so great that they would have to examine all the bridges to see if they were strong enough. They might have to reinforce then. They demanded DM 50,000 to be paid down even for the examination, and another DM 50,000 to be paid down towards the cost of strengthening the bridges, and so forth.
So there was a crisis. The cold box was held up at Bamberg. Nobody knew what to do. There was a...
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