Monterosso Shipping Company Ltd v International Transport Workers Federation (Rosso)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MAY |
| Judgment Date | 28 May 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0528-4 |
| Docket Number | 82/0233 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 May 1982 |
[1982] EWCA Civ J0528-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE MUSTILL)
Royal Courts of Justice.
The Master of the Rolls
(Lord Denning)
and
Lord Justice May
82/0233
1981 M. No. 1761
MR. PETER LEAVER (instructed by Messrs. Coward Chance) appeared on behalf of the (Plaintiffs) Respondents.
MR. CYRIL NEWMAN, Q.C. (instructed by Messrs. Clifford Turner) appeared on behalf of the (Defendants) Appellants.
Once more we have before us the International Transport Workers' Federation (I.T.F.) They are a federation of trade unions with affiliated unions all over the world. They have their headquarters in London, England. They do all they can to ensure that the merchant ships sailing the seas are good, sound, seaworthy ships with competent crews paid proper rates. They take great objection to absentee owners who register vessels under "flags of convenience"—and then under cover of those flags lower the standards of seaworthiness and competence and pay low wages. I.T.F. have done much to improve conditions by "blacking" these ships and thus forcing the owners to agree to I.T.F. terms. Once they agree, the owners are given a "blue certificate" and are free from being "blacked".
We are here concerned with a motor vessel called the "Rosso". She is owned by a company registered in Malta called Monterosso Shipping Co. Ltd. She is registered in Valleta, Malta. She flies the Maltese flag. It is undoubtedly a "flag of convenience". I do not suppose that her owners have anything to do with Malta, or that the vessel has ever been there.
The vessel is managed by a Norwegian firm. She is manned by Norwegian officers, but with Spanish crews. The owners have crewing agents in Spain called Marispan. They recruit Spanish crews at lower wages than some other crews. These Spanish crews are members of a Spanish seamen's union called Union General de Trabajadores (UGT). It is affiliated to the I.T.F. It has an official called Aguirre, who is also an inspector of the I.T.F.
THE MARCO AGREEMENT—FOR SPANISH CREWS
The seamen's union—Union General de Trabajadores (UGT) —in Spain have made an agreement with various shipowners regulating the terms and conditions on which Spanish crews are to be engaged on their vessels. It is called the Marco Agreement, and is headed:
"Collective Agreement with U.G.T. (I.T.F.) for vessels under flags of convenience with Spanish crews".
It is signed by Aguirre on behalf of UGT and as inspector for ITF.
THE SPECIAL AGREEMENT—THE BLUE CERTIFICATE FOR WORLD-WIDE TRADING
That agreement was acceptable to I.T.F. for the vessel "Rosso" in 1979. So in November 1979 I.T.F. agreed to give the vessel a "blue certificate" to cover its trading all over the world. This was done by a "Special Agreement" on a printed form issued by I.T.F. in London, but executed in Bilbao in Spain. It contained many provisions, of which the most significant for present purposes are:
"Article 2: The I.T.F. undertakes…to issue and each year to renew an ITF Blue Certificate…certifying that the Ship is covered by a Collective Agreement acceptable to the I.T.F.…
"Article 4: This Special Agreement shall remain in force for a period of twelve months from the date hereof and thereafter from year to year, provided that either party may give" one month's notice to end on any anniversary.
It was signed at Bilbao on the 7th November, 1979 by Marispan (the crewing agents) on behalf of the owners of the vessel, and by Aguirre on behalf of U.G.T. and inspector for I.T.F.
THE SWEDISH RUN
That agreement continued for several months quite satisfactorily. But then a dispute arose. It was because the owners started the vessel on a regular run between two ports on the Swedish coast in the Baltic Sea. Now there is a Swedish seamen's union, which is also affliated to the I.T.F. The Swedish union objected to this vessel making this regular run with Spanish crews. They felt that Swedish seamen should be employed on it. So the Swedish union asked the I.T.F. to use their good offices to ensure this.
THE SPECIAL AGREEMENT IS TERMINATED
This put the I.T.F. in some difficulty: because there was in existence the Special Agreement made in November 1979. It entitled the owners of the vessel to a "blue certificate" for world-wide trading. I.T.F. could not cancel the agreement at once. They had to let the agreement continue for the time being, but they gave notice to terminate it at the earliest possible moment. They gave notice to the owners on the 17th June, 1980 to expire on the 7th November, 1980.
NEGOTIATIONS FOR RENEWAL—A SPECIAL CLAUSE
This gave rise to intense negotiations. The shipowners wanted to continue with the "blue certificate". But the I.T.F. would not continue it unless there was a special clause inserted in it to this effect:
"It is agreed that if the ship running regular line between Sweden ports will be obligated to sign Sweden National Agreement".
In short, I.T.F. would not agree to give the shipowners a "blue certificate" for world-wide trading, unless there was a special clause inserted in it by which the crew would have the benefit of the Swedish seamen's agreement when running between Swedish ports.
If this special clause was inserted it is obvious that the shipowners would not employ Spanish crews on this run. They would employ Swedish crews.
The Swedish seamen's union pressed hard for this special clause to be inserted in any new agreement. They threatened to "black" this ship if the clause was not inserted.
On the 3rd November, 1980 I.T.F. wired to the shipowners:
"We now inform you that we have promised sympathetic action, in the form of work stoppage from 7 November, 1980. 00.00 hrs. onwards, to the Swedish Transport Workers Union, and we have been informed that this will take place".
THE SPANIARDS WILL NOT HAVE A SPECIAL CLAUSE
Now, although that was the attitude of I.T.F. in London and their affiliates in Sweden, the affiliate U.G.T. in Spain did not like it. It would mean that the Spanish crew would lose their work. They would be replaced on Swedish voyages by Swedish crews. So the Spanish U.G.T. and their inspector Aguirre, without any authority from I.T.F. in London, signed a Special Agreement in Bilbao—without including the special clause at all. It was in the English language on a printed form issued by I.T.F. It was stated to be between the "I.T.F. whose headquarters are at Maritime House, Old Town, Clapham, London in the United Kingdom" and "Monterosso Shipping Co. Ltd. of Valleta, Malta, in respect of the Malta flag ship 'Rosso'". It was the standard form of Special Agreement used by I.T.F. when granting blue certificates for world-wide trading. It did not contain a special clause about Swedish ports. It was signed on the 4th November, 1980 at Bilbao by Marispan on behalf of the shipowners, and by U.G.T. and the inspector Aguirre on behalf of I.T.F.
LONDON IS DISPLEASED
I.T.F. at their headquarters in London were much displeased with U.G.T. and their inspector in Bilbao. They disowned their special agreement because it did not contain the special clause about Sweden. They told their Swedish affiliate about it. Thereupon the Swedish seamen's union decided to "black" the "Rosso" on her next trip to Sweden.
THE VESSEL IS BLACKED
On the 10th November, 1980 the vessel arrived at Wallhamn in Sweden with a cargo to discharge. She was "blacked" by the Swedish seamen's union. They refused to unload her cargo. She waited for two days, and then had to go north to a Norwegian port, Oslo, in order to discharge her cargo. The "blacking" meant that she was off-hire for 2.69 days. The shipowners claimed damages from I.T.F. They said that the loss was due to a breach of contract by I.T.F. contained in the written agreement of the 4th November, 1980.
DAMAGES ARE CLAIMED
On the 15th April, 1981 the shipowners issued a writ in the High Court of Justice in England against I.T.F. claiming damages. Pleadings were exchanged. Particulars were given. The trial was fixed. But, before it started, Mr. Justice Robert Goff ordered that this question of law should be tried as a preliminary point:
"Whether the proper law of the 'Special Agreement' alleged to have been made between the Plaintiffs and the Defendants on 4th November, 1980, at Bilbao, Spain, was Spanish law or English law".
On the 9th March, 1982 Mr. Justice Mustill held that it was Spanish law. I.T.F. appeal to this court.
THE EFFECT OF SECTION 18
At the outset of the argument before us, Mr. Cyril Newman, Q.C. raised a point of much importance. It was hardly touched on before Mr. Justice Mustill. So we have not got his views upon it. Section 18 of the 1974 Act says:
"(1) Subject to subsection (3) below, any collective agreement made before 1st December,1971, or after the commencement of this section shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement—
-
(a) is in writing, and
-
(b) contains a provision which (however expressed) states that the parties intended that the agreement shall be a legally enforceable contract.
"(3) If any such agreement is in writing and contains a provision which (however expressed) states that the parties intend that one or more parts of the agreement specified in that provision, but not the whole of the agreement, shall be a legally enforceable...
To continue reading
Request your trial
-
Abu Dhabi Commercial Bank PJSC v Bavaguthu Raghuram Shetty
...followed where similar statutory language has been used – see Monterosso Shipping Co. Ltd. v International Transport Workers Federation [1982] ICR 675 per Lord Denning MR at 682A. The doubts that May LJ expressed on that point are not applicable to the point that arises in this case. In my ......
-
Star City Pty Ltd (fka Sydney Harbour Casino Pty Ltd) v Tan Hong Woon
...v Green [1951] 1 KB 594; [1950] 2 All ER 1240 (refd) Monterosso Shipping Co Ltd v International Transport Workers' Federation [1982] 3 All ER 841 (refd) Poyser v Minors (1881) 7 QBD 329 (refd) Quarrier v Colston (1842) 1 Ph 147; 41 ER 587 (refd) Quek Chiau Beng v Phua Swee Pah Jimmy [2000] ......
- National Coal Board v National Union of Mineworkers
-
The Conflict of Laws and Statutes: The International Operational of Legislation Dealing With Matters of Civil Law in the United Kingdom and Australia
...of Israeli Absentee Property [1954] 1 WLR 139, 152–132; Monterosso Shipping Co Ltd vInternational Transport Workers Federation [1982] 3 All ER 841; Apple Corps Ltd vAppleComputer Inc [1992] FSR 431, 469–471; Arab Bank plc vMercantile Holdings Ltd [1994] 2 WLR307, 313; Young vIndustrial Chem......