Merkur Island Shipping Corporation v Laughton (Hoegh Apapa)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,LORD JUSTICE DILLON,THE MASTER OF THE ROLLS |
| Judgment Date | 04 November 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1104-2 |
| Docket Number | 82/0448 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 1982 |
[1982] EWCA Civ J1104-2
The Master of The Rolls
(Sir John Donaldson)
Lord Justice O'Connor
and
Lord Justice Dillon
82/0448
1982 M. No. 2453
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR. JUSTICE PARKER)
Royal Courts of Justice.
MR. ROGER BUCKLEY, Q.C. and MR. TIM CHARLTON (instructed by Messrs. Holman Fenwick & Willan) appeared on behalf of the (Plaintiff) Respondent.
MR. CYRIL NEWMAN, Q.C., MR. NICHOLAS MERRIMAN and MR. CHARLES MacDONALD (instructed by Messrs. Clifford-Turner) appeared on behalf of the (Defendants) Appellants.
This is yet another case arising from the campaign of the International Transport Workers Federation (ITF) to force shipowners, particularly those whose ships fly flags of convenience, to improve the pay and conditions of employment of their crews up to a standard set by ITF. The pattern of events is well known; when a ship falls foul of ITF it declares her black, and calls upon affiliated trade unions whose members man tugs, locks, cranes, etc. to deny those services to the ship. ITF knows full well that to prevent a ship using a port for which she is bound, or impounding her in a port from which she is ready to sail, is bound to cause damage to the shipowner and this is the lever used to force a reluctant shipowner to agree terms acceptable to ITF.
The respondents own the "Hoegh Apapa", a Liberian registered ship. The majority of the crew were Philippinos recruited in Manila. On the 6th July, 1982 the ship was in Tilbury when a crew member complained of low wages to an ITF representative. The usual drill went into action, but the ship escaped from Tilbury during negotiations for an agreement. On the 14th July ITF learnt that the ship was due in Liverpool on the 15th July for loading. ITF asked for help in particular from TGWU to black the ship. On the 16th July the ship was ready to sail, but the tugmen in breach of their contract of employment refused to take her save to a lay berth. The lock-keepers also refused to work the gates to allow the ship out. Negotiations to settle the dispute failed so the ship owner applied for injunctions to lift the blacking and on the 23rd July, 1982 Mr. Justice Parker granted injunctions to achieve that end. At about the time the learned judge was giving judgment tidal conditions forced the lock-keepers to open the gates and the ship took the opportunity to escape. In one sense this appeal by ITF is academic, but it raises a matter of law of general importance on which the parties desire a ruling.
The ship was time-chartered to Leif Hoegh & Co. under a charterparty dated the 12th February, 1982 and sub-chartered to Ned Lloyd by a fixture dated the 14th July, 1982. Clause 2 of the time charter provides:
"Whilst on hire the Charterers shall provide and pay for all the fuel except as otherwise agreed, Port Charges normal 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 the owner is responsible, then all such charges incurred shall be paid by the Owners".
Other relevant clauses are clause 51 which provides:
"In the event of loss of time due to boycott of the vessel in any port or place by shore labour or others, or arising from Government restrictions by reason of the vessel's flag, or arising from the terms and conditions on which the members of the crew are employed, or by reason of the trading of this vessel, payment of hire shall cease for time thereby lost".
And clause 60 which provides:
"Should the vessel be prevented from work for the reasons as outlined in Clauses 49/50/51 and 52 for more than ten days, Charterers shall have the option of cancelling this contract".
Messrs. Van Omeran, agents for the sub-charterers, have a standing contract with Rea Towing for the provision of tugs to Ned Lloyd vessels. They ordered tugs for 5.00 p.m. on the 16th July but, as I have said, the tugmen, members of TGWU refused to take the ship beyond a lay berth. ITF were informed of the terms of the time charter by telex on the 16th July.
By their writ the respondents claimed damages from the appellants under two heads:
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(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.
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(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.
These claims are the basis for the injunctions claimed.
The respondents' case for the grant of the injunctions was simple enough; they submit that the facts disclosed that they had unanswerable claims for damages at common law. They accept that the acts of the appellants giving rise to the common law claims would be protected by section 13 of the Trade Union and Labour Relations Act 1974 as amended in 1976 but for the provisions of section 17 of the Employment Act 1980.
The appellants contend that on the facts paragraph (1) of the writ discloses no cause of action at common law; in the alternative that the immunity which they enjoy in respect of it and of that in paragraph (2) of the writ is not removed by section 17 of the 1980 Act.
The issues in this case are identical with those which were before this court also on appeal from Mr. Justice Parker in Marina Shipping Ltd. v. Laughton (1982) 2 Weekly Law Reports 569 ( The Antama). That was another case of ITF blacking a ship on time charter, clause 2 of which was so far as material in identical terms to clause 2 of the charter in this case, and the contract for the port services was made by the charterers' agents. The writ claimed damages under the same two heads. Mr. Justice Parker and this court held that the defendants were not protected by TULRA section 13 because their immunity had been removed by section 17 (1) of the 1980 Act, in that their acts amounted to secondary action within section 17 (2) not legitimised by section 17 (3) because there was no contract between the plaintiffs and the port authority as required by section 17 (6).
Mr. Newman has submitted that we are not bound by the decision because as to the first ground alleged in the writ a concession was made that it disclosed a cause of action and that that concession was wrongly made; that as a result the court did not deal with the second ground, and that, he submits, is not taken out of immunity by the 1980 Act.
In The Antama Lord Justice Lawton said at page 574: "The problem in this case is this. As I have already stated, had this blacking occurred before August 1, 1980, the plaintiff owners could not have come to the court asking for relief. That was so notwithstanding that, on the facts that I have recounted, they clearly had a cause of action for unlawful interference with their contract with the charterers and with such other persons with whom they had contracts for the transport of goods; and secondly, they had a cause of action, prima facie, for interference with their business by the use of unlawful means. The blacking through the lock-keepers kept the vessel in dock and that necessarily meant, under clause 34 of the charterparty, that time was running against them. So that head of claim was as clear as any head of claim could be. It is also reasonably clear, on the facts of this case, that the blacking of the vessel necessarily meant that she could not be going about her ordinary work as a vessel.
"For the purposes of this appeal the existence of those causes of action has not been disputed."
Lord Justice Brightman (as he then was) said at page 578:
"The interlocutory relief sought by the plaintiffs is based on two alleged causes of action: (a) interference with the performance of the plaintiffs' contracts, namely, the time charter and a contract of freight; and (b) interference with the plaintiffs' business by unlawful means. If either of these causes of action is soundly based interim relief must follow.
"I will deal first with cause of action (a). Having regard to the form which the relevant legislation takes, I think, as I indicated in argument, that one can best approach the problem in three stages. Stage 1: have the plaintiffs a cause of action at common law? If so, stage 2: is that cause of action removed by the Act of 1974? (When I refer to the Act of 1974 I mean that Act as amended by the Trade Union and Labour Relations (Amendment) Act 1976.) If so, stage 3: is that cause of action restored by the Act of 1980? If so, the plaintiffs can sue, as also they can if a negative answer given at stage 2.
"It is common ground that cause of action (a) is soundly based at...
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