Merkur Island Shipping Corporation v Laughton (Hoegh Apapa)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 21 April 1983 |
| Judgment citation (vLex) | [1983] UKHL J0421-1 |
| Date | 21 April 1983 |
| Court | House of Lords |
[1983] UKHL J0421-1
House of Lords
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Brightman
My Lords,
This appeal, in which I shall refer to the individual appellants collectively as "ITF", is concerned with yet another skirmish in the war that has for some years past been waged by the International Transport Workers' Federation ("ITF") against the use of vessels under flags of convenience in maritime trade to and from ports in Western Europe. The objects of this campaign, its consequences on the employment of Asian seamen and the way in which it has hitherto been conducted are explained in N.W.L. Ltd. v. Woods [1979] 1 W.L.R. 1294, 1297. The present appeal, however, differs from the previous ITF cases because it is the first to have come before this House, and only the second to have come before the Court of Appeal, in which the blacking of a flag-of-convenience vessel by preventing it from leaving a port in the United Kingdom took place after the coming into force of section 17 of the Employment Act 1980 ("the 1980 Act"), which withdraws from certain kinds of secondary action taken in furtherance of a trade dispute, the wide immunity from liability in tort conferred by section 13 of the Trade Union and Labour Relations Act 1974 as amended in 1975 and 1976 ("the 1974 Act").
Such facts as it is necessary to recount in order to dispose of this appeal can be stated briefly. The respondents ("the shipowners") own the Hoegh A papa ("the ship"), a Liberian registered ship, of which the majority of the crew were Filipinos. On July 15th 1982 she arrived at a dock in Liverpool for loading. ITF, (of which the individual appellants are officials) having previously learnt that the shipowners were paying less than the rate of wages approved by ITF, persuaded the tugmen employed by a company known as Rea Towing ("the tugowners") to refuse, in breach of their contract of employment with the tugowners. to move the ship out of the dock so as to enable her to sail.
The ship was let by the shipowners to Leif Hoeg & Co. ("the charterers") under a time charter ("the charter") in the New York Produce Exchange form with certain additional clauses, to two of which it will be necessary to refer. The charterers in turn had sub-chartered the ship to Ned Lloyd under a six-months' time charter ("the sub-charter") containing similar clauses. Both charter and sub-charter provided that the charterers thereunder should:
"provide and pay for all …. port charges, normal pilotages, agencies, commissions, consular charges …. and all other usual expenses. but when the vessel puts into a port for causes for which the vessel is responsible, then all such charges incurred shall be paid by the owners."
Pursuant to this clause in the sub-charter, the sub-charterers, who have a running contract with the tugowners for the provision of tugs to all their vessels using the port of Liverpool, made through their agent a specific contract with the tugowners for the provision of tugs to take the ship into and out of the dock at which the ship was to be loaded. As a result of the blacking of the vessel, however, on completion of the loading on 16th July the tugmen employed by the tugowners, in breach of their contracts of employment, refused to move the ship except to a lay-berth.
While the ship was thus immobilised, on 21st July the shipowners applied ex parte to Mr. Justice Parker, sitting in the Commercial Court, for an order requiring ITF to lift the blacking of the ship. The hearing, at which ITF were represented and adduced affidavit evidence, took place on 23rd July when Parker J. granted the injunction.
On the very same day as the injunction was granted an extraordinarily high tide in the Mersey made it necessary for the lock-keepers to leave the dock gates open and the ship, dispensing with the use of tugs, seized the opportunity to escape from the dock under her own power and to proceed to sea. The result was that the injunction came too late to have practical consequences unless the ship should return to Liverpool on another voyage under the sub-charter—an event which did not in fact occur. But the question whether Mr. Justice Parker misdirected himself in law in holding that the shipowners had a cause of action against ITF has not been thereby rendered wholly academic. The shipowners' writ includes claims in tort for damages under two alternative heads:
"(1) Damages for deliberate interference with and/or threat to the performance of a time charter dated 12th February 1982 between the plaintiffs and Leif Hoegh and Co. Aktieselskab, such interference and/or threat being brought about by unlawful means, namely wrongfully procuring and/or inducing and/or threatening to procure or induce lock keepers and/or tugmen and/or pilots and/or boatmen and/or linesmen and/or others concerned with the free passage and operation of vessels at Liverpool to refuse to assist the free passage or working of the 'Hoegh Apapa' at Liverpool.
(2) Damages for deliberate interference with and/or threat to the trade and business of the plaintiffs, such interference and/or threat being brought about by unlawful means namely wrongfully procuring and/or inducing and/or threatening to procure or induce lock keepers and/or tugmen and/or pilots and/or boatmen and/or linesmen and/or others concerned with the free passage and operation of vessels at Liverpool to refuse to assist the free passage or working of the 'Hoegh Apapa' at Liverpool."
It was under the first head that Parker J. held that on the evidence before him the shipowners had shown a cause of action at common law in respect of which it was unlikely the ITF would succeed in establishing an immunity from liability under the 1974 Act as modified by the 1980 Act.
Before the 1980 Act came into force the question whether "blacking" was lawful in any particular case involved a two-stage approach. Stage 1 was to determine whether the plaintiff had established that what was done in the course of the "blacking" would, if the 1974 Act had not been passed, have given him a cause of action in tort. If so, Stage 2 was to determine whether that cause of action was removed as against individual defendants by section 13 of the 1974 Act. To that two-stage process the 1980 Act added one further stage, Stage 3. This was to determine whether that cause of action which had been removed by the 1974 Act was restored by section 17 of the 1980 Act. In adopting this three-stage approach I gratefully follow the lead of my noble and learned friend, Lord Brightman (then Brightman L.J.) in Marina Shipping Ltd. v. Laughton [1982] Q.B. 1127(The Antama).
In the instant case there were two separate questions of law upon which it was contended by ITF that Parker J. had erred. The first, which I shall call the Stage 1 point, was that Parker J. was wrong in holding that there was any such tort at common law as was alleged in head (1) of the writ. The second, which I shall call the Stage 3 point, was that the judge had misconstrued section 17 of the 1980 Act—a question of construction upon which he had regarded himself as bound by the judgments in The Antama.
Desirous of clarifying the law about blacking as affected by section 17 of the 1980 Act, ITF appealed to the Court of Appeal from Mr. Justice Parker's order. In their notice of appeal in addition to the Stage 1 point and the Stage 3 point, they raised several other points with which your Lordships need not be concerned. The Court of Appeal (Sir John Donaldson M.R., O'Connor and Dillon L.JJ.) acceded to ITF's request for clarification of the law; since, as Sir John Donaldson M.R. put it, "lack of clarity posed problems for a judge who is asked, at short notice and as a matter of urgency, to grant an injunction" [1983] 2 W.L.R. 45, 61. The Court of Appeal were unanimous in upholding the judgment appealed from on the Stage 1 point. On the Stage 3 point, the Court of Appeal too regarded themselves as bound by the decision in The Antama, although both the Master of the Rolls and O'Connor L.J. did state briefly in their own words reasons for agreeing with the interpretation of section 17 of the 1980 Act that had commended itself to the Court of Appeal in The Antama.
My Lords, although the Stage 1 point is one of common law, the importance of the shipowners' being able to establish a cause of action at common law under head (1) of the writ rather than, or as well as, a cause of action at common law under head (2), is a consequence of the language used in section 13 of the 1974 Act and section 17 of the 1980 Act, since it is rightly not contested by the shipowners that if their only cause of action at common law lay under head (2) of the writ, it would be removed at Stage 2 by section 13(2) of the 1974 Act and would not be restored at Stage 3 by section 17 of the 1980 Act. It is therefore convenient to start by setting out these sections in extenso omitting only, as irrelevant, subsections (4) and (5) and part of subsection (7) of section 17 of the 1980 Act:
1974 Act
"13. Acts in contemplation or furtherance of trade disputes
(1) An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only—
( a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance: or
( b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.
(2) For the avoidance of doubt it is hereby declared that an act done by a person in contemplation or furtherance of a trade dispute...
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