Oldendorff (E. L.) & Company G.m.b.H. v Tradax Export S.A. (Johanna Oldendorff)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUCKLEY,LORD JUSTICE ROSKILL |
| Judgment Date | 16 June 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0616-1 |
| Date | 16 June 1972 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Arbitration Act 1950
In the Matter of an Arbitration
[1972] EWCA Civ J0616-1
The Master of the Rolls (Lord Denning)
Lord Justice Buckley and
Lord Justice Roskill
In The Supreme Court of Judicature
The Court of Appeal
Appeal by Claimants from Judgment of Mr. Justice Donaldson on 14th May, 1971.
Mr. R.A. MacCRINDLE, Q.C., Mr. ANTHONY EVANS, Q.C., and Mr. M. GOLDSMITH (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants.
Mr. ANTHONY LLOYD, Q.C., and Mr. A.G.S. POLLOCK (instructed by Messrs. Richards, Butler & Co.) appeared on behalf of the Respondents.
Under a port charterparty the Master of the "Johanna Oldendorff" was instructed to proceed to the port of Liverpool/Birkenhead to discharge. On 2nd January, 1968, at 16.30 she anchored at the Mersey Bar. This is the usual waiting place for ships coining to the port. It is 16 or 17 miles from the docks. She gave notice of readiness. No orders being received is from the charterers, the Master went up channel the 17 miles to Prince's Landing Stage. She cleared with the Customs, but was then ordered by the port authorities to leave the berth and to proceed to anchor at the Bar Light Vessel. She complied with the orders at 12.30 on 3rd January and was anchored again at the Bar by 14.40. There she had to stay, waiting for a berth until 20th January, 1968. In the words of the Umpire, Mr. Clyde: "the ship lay at anchor at the Bar from 3rd January, 1968, wasting her time and her Owners' money".
The Umpire found expressly that "at all material times after her first anchoring at the Bar, the ship was within the geographical, fiscal, legal and administrative area of the port of Liverpool/Birkenhead": but there was no berth available, and she had to wait at the Bar until a berth was available. She would not have been allowed to wait anywhere else.
The question is: Was the vessel an "arrived ship" when she anchored at the Bar waiting for a berth? That is, on 3rd January, 1968. Or did she only become an arrived ship when she tied up in a berth? that is, on 20th January, 1968. If she was an "arrived ship" on 3rd January 1968, the owners will recover demurrage from the charterers. If she was not then an "arrived ship", the owners have to bear the loss.
One would have thought that such a question, arising as it must every day, would have been capable of solution at once.
But it has given rise to acute controversy. As matter of common sense, I should have thought it plain that the ship arrived when she dropped anchor in the usual and accustomed waiting place - the place where all ships have to wait before they are allowed in to dock or berth in the Port of Liverpool/Birkenhead.
I would apply to this case the classic test laid down by Lord Justice Kennedy in The Leonis Steamship Co. Ltd. v. Bank Ltd. (1908) 1 K.E. at page 521:
"The commercial area of a port (arrival within which makes a ship an arrived ship, and, as such entitled to give notice of readiness to load, and at the expiration of the notice to begin to count lay days) ought. I think to be that area of the named port of destination on arrival within which the Master can effectively place his ship at the disposal of the charterer, the vessel being them, so far as she is concerned, ready to load and as near as circumstances permit to the actual loading 'spot' (be it quay or wharf, or pier, or mooring) and in a place where ships waiting for access to that spot usually lie, or, if there be more such loading spots than one, as near as circumstances permit to that one of such spots which the charterers prefer".
Applying that test, the actual loading "spot in the Port of Liverpool/Birkenhead was in one of the berths. The Master of this vessel took her as near as circumstances permitted, to the actual loading spot. He anchored her in the place where ships waiting for access to that spot usually lie. She was, therefore, an "arrived" ship. But it is said that, by the decision of the House of Lords in The Aello (1961) A.C. 135, we are prevented from adopting that common sense view.
I do not think we are so prevented. My reasons are as follows:-
I. The facts in The Aello were very special. The commercial area of the Port of Buenos Aires was the inner harbour. That is where vessels usually lay when waiting for a berth. A ship in ordinary circumstances would not be regarded as an "arrived" ship at Buenos Aires until she got into the inner harbour. But at this particular time, when The Aello sailed up the River Plate,there was acute congestion in the Inner Harbour. It was purely temporary and only lasted a few weeks. So she had to wait 22 miles downstream at a free anchorage in the roads. She was held not to be an "arrived" ship until she was allowed into the Inner Harbour.
Two points are crucial on the facts. They distinguish it from the present case. They are stated at the very outset of Lord Keith's speech which led the majority view (at page 187):-
1. The free anchorage was not an area within the port in which grain ships usually lay when waiting to load.
2. The laying of The Aello in the roads was a purely temporary incident, the result of a temporary restriction imposed by the port authorities".
Those two points are crucial. At the time when the Charter was made the parties would not have regarded the ship as an "arrived" ship at Buenos Aires until she reached the Inner Harbour. I do not see how the position can be altered by a purely temporary incident which arose after the charterparty was entered into. The others, too, of the majority stressed this point - see by Lord Jenkins at page 206, and Lord Morris of Borth-y-Gest, at page 216. It is the same as if there had been a physical obstruction in the fairway preventing the vessel from getting into the Inner harbour. (That is what Lord Keith thought, see P. 187(2)). Whereas, In the present case the vessel had reached the usual waiting place which was the only waiting place. She was not allowed to go any further, and this was a permanent restriction, not a temporary one.
Seeing that the facts are so different, I do not think that the decision in The Aello can be regarded as a binding authority covering the present case.
II. The House of Lords did not think they were changing the law: but the Judge thinks they made a radical change in it. All theLaw Lords accepted the principles laid down by Lord Justice Kennedy in The Leonis v. Bank (1908) 1 K.B. 499, as accurately stating the law; see Lord Radcliffe at page 165; Lord Cohen at page 181; Lord Keith at page 187; Lord Jenkins at page 199; Lord Morris of Borth-y-Gest at pages 211/217. They regarded themselves as applying those principles to The Aello. The difference between them was as to the application of the law to the facts, not as to the law itself. I cannot think it right to hold that the House of Lords changed the law when they had no thought of doing so. If they did so, it must have been per incuriam: and, on recent authority, it would be lese majeste to suggest that they acted per incuriam. Rather than hold that the House changed the law, I would think it right to do in this case what the House did in The Aello. and that is to apply the principles of Leonis v. Bank. On those principles, this vessel was beyond doubt an "arrived" ship at the Port of Liverpool/ Birkenhead when she anchored at the Mersey Bar.
III It was suggested that in The Aello their Lordships had accepted the sentence of Lord Justice Parker in the Court of Appeal (1958) 2 Q.B. at page 411, that "the commercial area of a port was intended to be that part of the port where a ship can be loaded when a berth is available, albeit she cannot be loaded until a berth is available." That sentence was quoted with approval by two of their Lordships - Lord Jenkins at page 208, and Lord Morris of Borth-y-Gest at page 216: but not by any of the others. As I read Lord Keith, he did not approve it. At page 187, he agreed with Lord Jenkins' analysis of the opinions in Leonis v. Bank. But it does not follow that he approved the dictum of Lord Justice Parker.
I do not think that the dictum of Lord Justice Parkerrepresents the law. If it were correct, it would mean that we decided the Delian Spirit (1971) 2 W.L.R. 1434, wrongly. In that case the vessel anchored outside the breakwater. She waited at the allotted, customary and usual place for tankers waiting to get in. But it was not "that part of the port where a ship can be loaded". Nevertheless, we held, affirming Mr. Justice Donaldson, that she was an "arrived" ship, and our decision was accepted. In this Court we should follow that decision, showing, as it does, that Lord Justice Parker's dictum was wrong; and that the interpretation put upon The Aello in some quarters was also wrong.
IV This is a port charterparty and not a dock charterparty nor a berth charterparty. If the decision below is right, it means that, in the Port of Liverpool/Birkenhead, a ship can never be an "arrived ship" until she gets into a dock or a berth. In short, a port charterparty is turned into a dock or berth charterparty. That cannot be right.
V This charterparty contains a provision which was not in The Aello. It shows that it was intended by the parties that at Liverpool/Birkenhead the ship should be regarded as an "arrived ship" when she arrived at the Mersey Bar and lay there waiting for a berth. The printed clause 3 said:-
"Time to count from the first waiting period on the next day following receipt during ordinary office hours of written notice of readiness to discharge".
But then there was an express addition typed In:-
"…whether in berth or not".
Reading those additional words in their ordinary meaning, they seem...
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