N.W.L. Ltd v Woods
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WALLER |
| Judgment Date | 03 July 1979 |
| Neutral Citation | [1979] EWCA Civ J0703-3 |
| Judgment citation (vLex) | [1979] EWCA Civ J0629-2 |
| Docket Number | 1979. H. No. 993 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 1979 |
[1979] EWCA Civ J0629-2
Lord Salmon
and
Lord Justice Stephenson
In The Supreme Court of Judicature
Court of Appeal
MR CYRIL NEWMAN, instructed by Messrs Clifford-Turner & Co., appeared for the Appellant (Defendant).
MR ROGER BUCKLEY, Q.C., and MR CHRISTOPHER CLARKE, instructed by Messrs Holman, Fenwick and Willan, appeared for the Respondents (Plaintiffs).
This Judgment is the Judgment of the court.
This is a defendant's appeal from an order of Mr Justice Donaldson made on 19th June 1979 restraining "the defendant his servants or agents from issuing; instructions to and/or encouraging stevedores and/or tug operators and/or their employees and/or pilots or owners concerned with the discharge and/or free passage and operation of the M.V. Nawala to break their contracts of employment or otherwise howsoever interfere with such discharge, free passage or operation".
At the hearing of this appeal on 21st June we were told that the "Nawala" had berthed at the port of Redcar without opposition by stevedores, tugmen or anyone else. As the matter was urgent, we then allowed the appeal with costs above and below and gave the respondent plaintiffs leave to appeal to the House of Lords, without stating our reasons. We now state our reasons for allowing the appeal.
The plaintiffs have been the owners of the "Nawala" since 1978. They are a company incorporated under the law of Hong Kong, and after purchasing the ship they at different times changed her flag to British, her port of registry to Hong Kong and her name to "Nawala". They have a contract of affreightment on port charter terms to Messrs Hammersley of Australia for shipping iron ore from Dampier in Australia to the United Kingdom for discharge at British Steel's berth at Redcar. British Steel purchased the iron ore c.i.f. from Hammersley and Mr Jackson of their Middlesbrough office acted both as the ship's agent at Redcar and also on behalf of British Steel as consignees.
There is a dispute as to whether the beneficial owners of the ship are in Europe or in North America, but there is no dispute that they are not the plaintiffs and are not in the United Kingdom. The British flag which the ship flies is therefore a "flag ofconvenience".
The defendant is the Branch Secretary of the National Union of Seamen ("N.U.S.") at liiddlesbrough. He is also the Inspector for the Port of Tees of the International Transport Workers' Federation ("I.T.F.") to which the NUS is affiliated. The ITF is an international federation of autonomous trade unions to which are affiliated about 330 unions in 85 countries representing about 5 millian transport workers including seamen. The ITF has a special Seafaring Section set up by the seafarers' unions affiliated to it.
The ship called at Redcar in February this year with her cargo of iron ore for British Steel and a crew of 32, all from Kong Kong except one from Singapore and one from Taiwan.
They were all recruited in Hamburg in August 1978 under a standard form of contract approved by the Seamen's Recruiting Office ("S.R.O.") which is a part of the Hong Kong Marine Department, a Government Department. The contract runs for one year and stipulates the minimum rate of pay which owners are free to increase by negotiation. That contract is, in unspecified respects but presumably in wages, well below the standard applicable for a crew working on any Western European registered ship.
According to the undisputed evidence of Mr Laughton, a Senior Official of the ITF, "It has been the policy of the ITF since the 1920's that ships should fly the flag of their beneficial ownership. Bona fide national flag ships should have crews employed on conditions negotiated at national level between the unions and employers of the country concerned. The crew should be of the same nationality as the flag, but where seafarers of other nationalities are employed, in agreement with the unions concerned, such seafarers should also be paid at the national race of pay forsuch ships. Ships which are beneficially owned or controlled by nationals or entities of one country but fly the flag of another country are known as Fing-of-Convenience ships. Briefly the ressons for the ITF involving itself witn flag-of-convenience' vessels are: (a) pages, conditions of employment and other social benefits are generally markedly lower in vessels flying flags-of-convenience' because the countries of registry do not stipulate or enforce the provision of such benefits and no or no effective trades unions exist to ensure satisfactory wages and conditions; and (b) The lower operating, manning and safety standards generally found in such vessels because the countries of registry are either unable or unwilling to lay down and enforce proper standards comparable to international standards applied by traditional maritime nations.
"(5) Where a ship flies a flag-of-convenience the policy of the ITF is that seafarers on board such vessel should be paid the minimum internationally acceptable rates of pay and should be employed on the terms and conditions as laid down from time to time in the ITF Collective Agreement. The Collective Agreement is an average of seafarers' wages and conditions in ten European countries. The ITF policy is not directed against flags-of-convenience per se but is based on the fact that wages and conditions on ships flying flags-of-convenience are almost invariably of a low standard and this is so because one of the major reasons why shipowners use flags-of-convenience is in order to employ crews from low-wage countries where there are no, or no effective, seafarers' trade unions. As a result there has been gross exploitation by the flag-of-convenience owners of seafarers from developing countries. It is one of the major aims of the ITF to assist such seafarers and this policy has resulted in a continuous series of industrial disputes oil over the worldbetween ITF affiliated unions and shipowners flying flags-of-convenience. These disputes have received widespread publicity and it is well-known in the shipping world that any vessel flying a flag-of-convenience which has a crew engaged on terms less favourable than those of the ITF will frequently become involved in an industrial dispute with the ITF and its affiliated unions.
"(6) It is the standard practice of officials of ITF affiliated unions to visit vessels flying flags-of-convenience in the ports in which they operate and to inspect those vessels and the terms and conditions under which their crews are employed. Should it transpire during such an inspection that the terms and conditions of employment of the seafarers on board such vessel are below ITF standards, the trade union official would ask the vessel's owners to enter into a Special Agreement with the ITF which incorporates the ITF Collective Agreement and to enter into new contracts of employment with the seafarers on the vessel on terms incorporating the ITF Collective Agreement. If such an Agreement is reached and the shipowner complies with its provisions, the ITF issues a Certificate to the shipowner known as an 'ITF Blue Certificate' which serves as proof that the seafarers on board that vessel are employed on terms acceptable to the ITF."
It is this choice - between "black" and "blue" - which the defendant has sought to impose upon the plaintiffs and has been prevented by Mr Justice Donaldson's order from imposing upon the plaintiffs.
The defendant visited the ship with Mr Jackson, asked the Master about her ownership and sought negotiations with the owners with a view to securing an agreement relating to the terms and conditions of the crew's employment. His invitation to negotiate has been ignored or declined. On 14th June 1979 the defendantinformed Mr Jackson on the telephone that the ship would have to become involved, or enrolled, with the ITF and if it were not he would "take appropriate action", which Mr Jackson understood from previous ercperiencc to mean "blacking" either by inducing the stevedores, who are members of the Transport and General Workers Union ("TGWU") to stop discharging the ship or by inducing the tugmen, who are also members of the TGWU, not to assist her away from the berth. The defendant volunteered, according to the uncontradicted statement of Mr Jackson in paragraph 14 of the supplemental affidavit of Mr Scrase, solicitor for the plaintiffs, that the reason why the ship would have to be involved with the ITF "was that the owners of the vessel were in the United States and that they were using the British flag, meaning as a flag-of- convenience. In a further conversation with Mr Jackson on Saturday, 16th June, Mr Woods indicated to Mr Jackson that if the owners did not co-operate, according to Mr Woods' own words, the 'sparks would fly'."
The TGWU, to which all tugmen and stevedores at Hedcar belong, is a union liated to the ITF, yet the TGWU has apparently no intention) of blacking the ship; but British Steel would not permit her to berth while the threat of a boycott still existed, so the plaintiffs sought to get the injunction under appeal.
The points taken against granting the injunction before the learned judge and this court were: (1) that the action taken by the defendant was an act done by him "in contemplation or furtherance of a trade dispute" as defined in section 29 of the Trade Union and Labour Relations Act 1974, and so not actionable or unlawful by xrirtue of section 15 of that Act as amended by section 3(2) of the Trade Union and Labour Relations (Amendment) Act 1976; (2) that the defendant was likely to succeed at the trial of the action in establishing the natter or aatters whichcould under section 13 afford a defence to the action, and in having regard to the likelihood of his succeeding, in accordance with section "7(2) of the Act of -1974 as amended by section...
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