Nippon Yusen Kaisha v Acme Shipping Corporation (Charalambos N. Pateras)
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE CAIRNS,LORD JUSTICE ROSKILL |
| Judgment Date | 11 October 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1011-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 1971 |
[1971] EWCA Civ J1011-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by Nippon Yusen Kaisha from order of Mr. Justice Mocatta of 1st April, 1971.
The Master of The Rolls (Lord Denning)
Lord Justice Cairns and
Lord Justice Roskill.
Mr. R. A. MacCRINDLE, Q. C., and Mr. ALAN POLLOCK (instructed by Messrs, Middleton, Lewis && Co.) appeared on behalf of Nippon Yusen Kaisha, Appellant.
Mr. ANTHONY EVANS, Q. C., and Mr. ANTHONY COLMAN (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Respondent.
This is a motion to set aside an umpire's award on the ground that it is bad in law on the face of it.
The award shows that on 10th March 1969, ship owners let the vessel named "The Charalambos N. Pateras" on a time charter for three to five months to the charterers, Nippon Yusen Kaisha, It was in the Baltime form. During the time charter she approached the port of Ampala, which is in Nicaragua, Central America, The Master wrongfully refused to take his ship into the port of Ampala. On that account the charterers claimed damages under two heads: First, £5,037 Is. 2d. This was a claim for loss of time. The charterers said that, by reason of the Master's refusal, they were deprived of the use of the vessel for a number of days and deducted that sum from the hire payable by them. Second, £4,319 11s. Id. These were expenses to which. the charterers were put because of the Master's refusal, I expect the vessel had to go to some other port, or to unload into lighters.
The ship owners relied on an exemption clause in answer to the claim. The umpire made his award in these words:
"I award and adjudge
(a) that, although the respondents" - that is, the ship owners - "have failed to justify the refusal of the Master to enter the port of Ampala, they have established that they are fully protected by the exemption clause in the charter party and that therefore the claimants fail in toto"….….
The parties did not ask for a case stated. The charterers now say that the Award is bad in law on the face of it. The exemption clause is not set out in the award, but for the present purposesit is accepted that we can look at it. The exemption clause is Clause 13. It goes hack a very long time. The only case where it has been considered before is The Istros (1931) 1 K. B. at page 247. It can be divided into four sentences:
First "The Owners only to be responsible for delay in delivery of the Vessel or for delay during the currency of the Charter and for loss or damage to goods on board if such delay or loss has been caused by want of due diligence on the part of the Owners or their Manager in making the Vessel seaworthy and fitted for the voyage or any other personal act or omission or default of the Owners or their Manager".
Second "The Owners not to be responsible in any Other case nor for damage or delay whatsoever and howsoever caused even if caused by the neglect or default of their servants."
Third "The Owners not to be liable for loss or damage arising or resulting from strikes, lock-outs or stoppage or restraint of about (including, the Master, Officers or Crew) whether partial or general".
Fourth "The Charterers to be responsible for loss or damage caused to the Vessel or to the Owners by goods being loaded contrary to the terms of the Charter or by improper or careless bunkering or loading, stowing or discharging of goods or any other improper or negligent act on their part or that of their servants".
The first sentence makes the owners responsible for four specified types of delay or loss or damage when it is due to the default of the owners.
The first part of the second sentence says that the owners are not to be responsible for those four specified types of delay or loss or damage" in any other case", i. e. when it is not due to the default of the owners.
Seeing that the delay or loss or damage here does not come within those four specified types, those parts of the clause do not come into question here.
The second part of the second sentence says: "…. nor for damage or delay and howsoever caused even if caused by the neglect or default of their servants". This is the part here in question. The ship owners say that they were exempt from liability for both heads of claim here.
The principal contest is as to the word "damage", Mr. MacCrindle, for the Charterers, has urged that refers only to physical damage. It takes its colour, he says, from the words in the first sentence "damage to goods on board". Mr. Evans, for the Ship owners, says that "damage" refers not only to physical damage but also to financial loss or damage. He points out that in the third and fourth sentences "damage" clearly includes financial loss and damage.
The Gencon Charter contains words which are somewhat similar. It says: ".…. the owners are responsible for no loss or damage or delay arising from any other cause whatsoever". These words were construed by Mr. Justice Diplock in The Dominator (1959) 1 K. B, at page 514. He held that they relate to loss of, or damage to the goods, or delay in delivery of the goods. But he based his judgment on the context in which those words occurred, especially the first paragraph of that Clause in the Gencon charter. It is...
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