MB Pyramid Sound N.v v Briese Schiffahrts G.M.B.H & Company K.G. M.S. "Sina" and Latvian Shipping Association Ltd (The Ines) (No.1)
| Jurisdiction | England & Wales |
| Judge | Clarke J |
| Judgment Date | 15 May 1995 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 15 May 1995 |
Queen's Bench Division (Commercial Court).
Clarke J.
Charles Sussex (instructed by Clyde & Co) for the plaintiffs.
Christopher Hancock (instructed by Ince & Co) for the first defendants.
Steven Berry (instructed by Lawrence Graham) for the second defendants.
The following cases were referred to in the judgment:
Ashby v TolhurstELR [1937] 2 KB 242.
Berkshire, TheUNK [1974] 1 Ll Rep 185.
Chartered Bank v British India Steam Navigation Co LtdELR [1909] AC 369.
Evans & Reid v CornouailleUNK (1921) 8 Ll L Rep 76.
Glyn Mills Currie Co v East and West India Dock Co (1882) 7 App Gas 591.
Glynn v Margetson & CoELR [1893] AC 351.
International Factors Ltd v RodriguezELR [1979] QB 351.
Kuwait Petroleum Corp v I & D Oil Carriers Ltd (“The Houda”) [1994] CLC 1037.
Petrocochino & Ors v BottELR (1874) LR 9 CP 355.
Rewia, TheUNK [1991] 2 Ll Rep 325.
Sucre Export SA v Northern River Shipping Ltd (“The Sormovskiy 3068') [1994] CLC 433.
Suisse Atlantique Societe d'Armement Maritime SA v NV Rotterdamsche Kolen CentraleELR [1967] 1 AC 361.
Sze Hai Tong Bank Ltd v Rambler Cycle Co LtdELR [1959] AC 576.
United Australia Ltd v Barclays Bank LtdELR [1941] AC 1.
Verschures Creameries Ltd v Hull and Netherlands Steamship Co LtdELR [1921] 2 KB 608.
Shipping — Bill of lading — Carriage of goods by sea from Rotterdam to St Petersburg on vessel chartered for liner service — Cargo of telephones owned by holders of received for shipment bills of lading — Cargo discharged at St Petersburg — Goods delivered without presentation of original bill of lading Whether contract of carriage between owners of goods and shipowners or charterers — Whether breach of contract of carriage in bill of lading — Whether failure to mitigate loss by owners of goods — Quantum of damages.
This was an action for damages for misdelivery of goods delivered without presentation of an original bill of lading.
The plaintiffs were the holders of three received for shipment bills of lading dated 11 October 1991 in respect of three consignments of telephones. The first defendants were the owners of the vessel “Ines”, chartered by the second defendants who operated a liner service from Belgium and Holland to Russian ports in the name of Maras Linja.
The plaintiffs agreed to sell telephones to “L”, who required them to be shipped from Antwerp to St Petersburg. On the plaintiffs' instructions Antwerp agents (“Meyer”) arranged for the carriage of goods to St Petersburg on board the Ines. In the agreement of 4 October 1991 between the plaintiffs and Meyer the consignee was named as “PS”, a company associated with L, and the notify party as Rusworld in Moscow. On 4 October 1991 Meyer also made a contract with Eimskip who were agents for the charterers, for the carriage of the goods from Rotterdam, where they were loaded on board the Ines, to St Petersburg. Draft bills of lading were drawn up by Eimskip dated 14 October 1991 for contracts of carriage between the plaintiffs and the owners, but since loading was going to be late the plaintiffs asked for received for shipment bills to be issued. The new bills were dated 11 October, when the goods were received by the charterers, and in the signature box the printed form read, “signed as agents for the carrier Maras Linja”. The goods were subsequently shipped and carried to St Petersburg.
Since the plaintiffs were not paid for the telephones by their buyers, they retained the original bills of lading. The Ines arrived in St Petersburg on 31 October, discharging all the plaintiffs' cargo that day. The master signed a general declaration and a disbursements account without presentation of an original bill of lading. The discharge was carried out by stevedores for the Commercial Sea Port, almost certainly to the charterers' orders. The goods were stored within the port area and with the approval of the charterers' agents released to Rusworld on 9 November without presentation of an original bill of lading or the consent of the plaintiffs. As a result the plaintiffs suffered loss. They brought an action for damages against the owners and the charterers.
Issues arose as to whether the owners or the charterers were the contractual carriers under the contract in the original bills of lading, whether there was a breach of contract, whether the plaintiffs had failed to mitigate their loss, whether the charterers were liable for breach of contract or breach of duty and the quantum of damages.
Held, giving judgment for the plaintiffs:
1. A bill of lading signed for the master was ordinarily held to be a shipowners' bill. In order to ascertain the true contracting parties in any particular case it was necessary to examine the entire document taking into account the whole context in which it came into existence. On the construction of the bills of lading the contract of carriage was made on behalf of the owners by Eimskip as agents for Maras Linja as charterers, the charterers having authority to sign bills of lading on behalf of the owners under the charterparty. The surrounding circumstances supported that conclusion. It followed that the parties to the contract of carriage contained in or evidenced by the bills of lading were the plaintiffs and the owners.
2. The delivery of the cargo without presentation of an original bill of lading was a breach of the contract of carriage on the terms of the bill of lading. All relevant entities knew that an original bill of lading was strictly required. A deliberate decision was therefore taken to deliver the goods without presentation of an original bill of lading, as a result of which the plaintiffs suffered loss. Nothing in the terms of the bill of lading or in Russian law led to any other conclusion. The owners were accordingly liable to the plaintiffs for breach of contract.
3. The plaintiffs had not failed to take reasonable steps to mitigate their loss by refusing to take proceedings in Moscow unless the proceedings were at the expense and risk of the charterers.
4. The plaintiffs were entitled to damages assessed by reference to the entire shipment of 247,660 telephones, at US$4.15 each, the price they would have received from their buyers, that was US$1,027,789 less the amount already paid of US$323,210. The net amount recoverable was accordingly US$704,779.
5. The charterers were not liable to the plaintiffs for breach of contract or for breach of duty as bailees or sub-bailees because there was no relevant contract, bailment or sub-bailment between them on the terms of the bills of lading.
Clarke J: In this action the plaintiffs claim damages in respect of the alleged misdelivery of three consignments of cartons of telephones shipped on board the first defendants' vessel INES at Rotterdam for carriage to and delivery at St Petersburg. The alleged misdelivery occurred at St Petersburg. The plaintiffs were at all material times and remain the holders of three received for shipment bills of lading each dated 11 October 1991. The goods were delivered at St Petersburg without presentation of an original bill of lading. The plaintiffs say that that was a misdelivery in breach of the contract contained in or evidenced by the bills of lading and that they have suffered loss as a result. There are a number of issues between the parties of which the first is whether the first or second defendants were parties to the contract of carriage. It is convenient to consider that issue first.
The plaintiffs and the second defendants say that the first defendants were parties to the contract, whereas the first defendants say that the second defendants were the contractual carriers. There are no other candidates. It is convenient to call the first defendants “the owners” and the second defendants “the charterers”. The relevant facts are briefly as follows.
The charterers operated a liner service from Belgium and Holland to Russian ports in the name of Maras Linja. Through Laurelglade Ltd of Liverpool (“Laurelglade”) they had appointed Eimskip Rotterdam NV (“Eimskip”) as their agents in Holland. They chartered the Ines from the owners under a Baltime charterparty dated 17 May 1991 for a period of three months fifteen days more or less in charterers” option.
In the meantime, as will be seen below, the plaintiffs bought some telephones from Kayes International in Hong Kong. They were shipped to Antwerp. The plaintiffs agreed to sell some of the telephones to a Mr Litwak or perhaps to a company called Pino Stiftung which is in some way associated with him. They were to be shipped to St Petersburg. To that end on 3 October 1991 the plaintiffs instructed the Antwerp agents Meyer & Co (“Meyer”) to arrange for the carriage of the goods to St Petersburg. On that day Mr Burrgraaf of Meyer quoted inter alia for trucking from Rotterdam to “our shed” at Rotterdam, for discharging the cartons of telephones from the containers in which they were loaded at that time and reloading them into other containers, for freight from Rotterdam to St Petersburg and for preparing bills of lading. They had by that time ascertained, presumably through Eimskip, that space would be available on the Ines.
On 4 October the plaintiffs replied by a telex which included the following:
“We herewith confirm 14 X 40ft containers and 1 X 20ft container for ms INES departure from Rotterdam on 14.10.91, closing on 11.10.91. These 40ft and 20ft containers will be transshipped by you into 20ft containers.
…
These containers would have to be collected by you from the quay and trucked to your company and transshipped there into your 20ft or 40ft containers, depending on which containers are available. The empty containers to be returned to Antwerp.”
In the telex the plaintiffs asked Meyer to make the booking for the Ines. They named the consignee as Pino Stiftung in Liechtenstein and the...
To continue reading
Request your trial
-
Motis Exports Ltd v Dampskibsselskabet Af 1912 Akieselskab
...to cover the circumstances which arose. 19 11. In this context Mr Dunning sought to rely on a dictum of Clarke J. in The Ines [1995] 2 Lloyd's Rep. 144. In that case the cargo was misdelivered without any bill of lading being presented. There was no forgery. There was a cesser of liability ......
-
Sunrise Maritime Inc. v Uvisco Ltd ('The Hector') [QBD (Comm)]
...1 Ll Rep 185 Gouriet v Union of Post Office WorkersELR [1978] AC 435 MB Pyramid Sound NV v Briese-Schiffahrts GmbH & Co KG (“The Ines”) [1995] CLC 886 Nippon Yusen Kaisha v Ramjiban SerowgeeELR [1938] AC 429 Pyrene Co Ltd v Scindia Navigation Co LtdELR [1954] 2 QB 402 Rewia, TheUNK [1991] 2......
-
Ship Starsin, Re, (2003) 307 N.R. 100 (HL)
...70]. Ship Venezuela, Re, [1980] 1 Lloyd's Rep. 393, refd to. [para. 13]. MB Pyramid Sound MV v. Briese Schiffahrts GmbH (The Ines), [1995] 2 Lloyd's Rep. 144, refd to. [para. 13]. Sunrise Maritime Inc. v. Uvisco Ltd. (The Hector), [1998] 2 Lloyd's Rep. 287, refd to. [para. 13]. Fetim BV v. ......
-
Homburg Houtimport BV v Agrosin Pte Ltd ('The Starsin') [QBD (Comm)]
...v Cambay Prince Steamship Co Ltd (“The Wear Breeze”)ELR [1969] 1 QB 219. MB Pyramid Sound NV v Briese-Shiffarts GmbH & Co KG (“The Ines”) [1995] CLC 886. Mitsui & Co Ltd v Flota Mercante Grancolombiana SA (“The Ciudad de Pasto”)UNK [1988] 2 Ll Rep 208. Nea Tyhi, TheUNK [1982] 1 Ll Rep 606. ......
-
Book Review: Shipping law and admiralty jurisdiction in South Africa
...in recent years (MB Pyramid Sound NV v Briese Schiffahrts GmbH & Co KG MS 'Sina' and Latvian Shipping Association Ltd (The 'Ines') [1995] 2 Lloyd's Rep 144; Sunrise Maritime Inc v Uvisco Ltd (The 'Hector') [1998] 2 Lloyd's Rep 287; Fetim BV & others v Oceanspeed Shipping Ltd (The Flecha') [......