Oldendorff (E. L.) & Company G.m.b.H. v Tradax Export S.A. (Johanna Oldendorff)
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Diplock,Lord Simon of Glaisdale |
| Judgment Date | 18 July 1973 |
| Judgment citation (vLex) | [1973] UKHL J0718-1 |
| Date | 18 July 1973 |
| Court | House of Lords |
[1973] UKHL J0718-1
House of Lords
Lord Reid
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Diplock
Lord Simon of Glaisdale
Upon Report from the Appellate Committee, to whom was referred the Cause E. L. Oldendorff & Co. G.m.b.h. against Tradax Export S.A., that the Committee had heard Counsel as well on Thursday the 22d, as on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th, days of March last, as on Monday the 2d day of April last, upon the Petition and Appeal of E. L. Oldendorff & Co. G.m.b.h. praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 16th of June 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet: as also upon the Case of Tradax Export S.A., lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 16th day of June 1972, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the First Question of Law in the Special Case be, and the same is hereby, Answered, by Declaring that laytime for discharge started at 8 a.m. on Thursday, the 4th of January 1968: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
By a voyage charter party of 1st December, 1967, the Appellants undertook that their ship the Johanna Oldendorff should load a bulk grain cargo in the United States and "therewith proceed to London or Avonmouth or Glasgow or Belfast or Liverpool/Birkenhead (counting as one port) or Hull". The charterer, the Respondents duly gave instructions to proceed "to the port of Liverpool /Birkenhead to discharge". The charterers were informed that the vessel was due at Mersey Bar anchorage at 17.00 hours on 2nd January, 1968, but no berth was nominated by them. When she arrived she anchored there. The next day she proceeded to Princes Pier landing stage, Liverpool, and cleared with the Customs. She was then ordered by the Port Authority to leave and proceed to anchor at the Bar light vessel. She did so arriving at that anchorage at 14.40.
Meanwhile the owners gave to the charterers notice of readiness. This was received at 14.30 on 3rd January. The vessel lay at anchor at the Bar from 3rd to 20th January ready, so far as she was concerned, to discharge.
The question at issue is who is liable to pay for the delay. The owners claimed demurrage and the matter was submitted to arbitration in accordance with the charter party. The decision was made by the umpire in the form of a special case dated 21st April, 1970. He decided in favour of the owners and awarded them £7,800 with interest. The question of law stated is whether on the facts found the laytime for discharge started on 4th January or on 22nd January.
The argument before your Lordships turned on the time when the vessel become an arrived ship. The main contention for the owners is that she became an arrived ship when she anchored at the Bar anchorage because that is within the Port of Liverpool, it is the usual place where vessels lie awaiting a berth, and it was the place to which she had been ordered to go by the Port Authority. The reply of the charterers is that that anchorage is at least 17 miles from the dock area, or commercial area of the Port, that arrival at that anchorage is not arrival at the Port of Liverpool/Birkenhead and that the ship did not arrive until she proceeded to her unloading berth in the Birkenhead Docks.
If a berth is not available when a ship reaches her destination the ship must wait. Waiting costs money and for a very long time the question who is to pay has been a prolific source of litigation. The risk of foreseeable and no doubt in an ideal world the parties to every contract would settle the matter when they contracted. But experience shows that business is not done in that way. Parties are inclined to adopt well tried forms leaving it to the Court to determine their meanings. There appear to be three common forms of voyage charter-party where the destination is said to be a port or a dock or a berth. To say when a vessel arrives at a dock or a berth may be easy, but it is not easy when the destination is a port.
Until the decision of the Court of Appeal in Leonis S.S. Co. v. Rank [1908] 1 K.B. 499 the law was in some confusion. For the charterers Mr. Scrutton was able to argue (p. 505):
"The weight of authority is in favour of the view that demurrage does not commence till the vessel has arrived at the usual place of loading nominated by the charterers. The risk of berths being occupied by other ships falls on the vessel, not on the charterers."
Mr. Hamilton for the owners relied (at p. 503) on Carver on Carriage by Sea, 4th edition:
"When the place named is a port, or other wide district, the lay days begin when the ship is ready, and at the freighter's disposal, within the named place; though she may not be in a position to take in or discharge cargo, and though she may not be at the wharf, dock, or other part of the place to which the charterer may have properly required her to go,".
And later (p. 509) he said:
"It is clear from the decision in ( Pyman v. Dreyfus 24 Q.B.D. 152) that the vessel is at the usual place of discharge if she arrives at the business part of the port."
A little later he referred to the commercial area of the port. When the Leonis arrived at Bahia Blanca other ships were alongside the pier and the Leonis waited "only a few ships' lengths off the pier"; nevertheless the charterers argued that she was not an arrived ship.
So the question at issue in Leonis was very different from the question in the present case. There it was whether the ship did not arrive until she was actually at the loading berth or whether it was enough that she had arrived in the immediate vicinity; and it was held that it was enough that she had come within a few ships' lengths of the pier. Here it is admitted that the vessel would have been an arrived ship if she had been allowed to wait anywhere in the dock area of the port but it is said to make all the difference that she was required to wait in a more remote area of the port.
The present state of the law is rather unusual. It has always been held that the Court of Appeal in Leonis laid down general principles which must be followed.: The difficulty has been to find out what those principles are. Buckley L.J. and Kennedy L.J. each delivered long judgments and Lord Alverstone C.J. agreed with both. So he must have thought that there was no substantial difference between them. And that has been the view of almost all the many judges who have since then had to consider the matter. The judgment of Kennedy L.J. has generally been regarded as the leading judgment, perhaps because it is rather less obscure than that of Buckley L.J. The charterers in this case invited us to concentrate on the judgment of Buckley L.J. I would agree that it is capable of being read as being more favourable to the charterers than that of Kennedy L.J. But I am far from being satisfied that it ought to be so read, and I would adopt the general view hitherto held that there is no substantial difference between them.
So I turn to enquire what principles Kennedy L.J. intended to lay down. In pursuing that enquiry I think it necessary to repeat the familiar caution that the language of judges is always quite properly coloured by the facts of the particular case they are deciding and must not be treated as if it were the language of an Act of Parliament.
It is argued for the charterers that this House finally determined the meaning of the judgment of Kennedy L.J. in The Aello [1961] A.C. 135 and that we ought not to reopen the question. Whether it is proper for this House to reconsider its earlier decision is a matter which has now been considered several limes. I trust that it is now clear that in reaching a decision on that matter we must have in mind all the circumstances of the particular case and I shall therefore postpone my consideration of it until I have dealt with all the circumstances which appear to me to be relevant.
There are a number of passages in the judgment of Kennedy L.J. which must be considered. First, he says at p.517:
"First, the ship must have arrived at her destination, and so be within the designation of an 'arrived' ship".
Then he says that her destination is that point which the parties have chosen to designate as the destination, and says that in practice this is generally a port or dock with a berth. Then having said that the limits of a port may be very wide he continued at p.519:
"In the case of a port, and nothing more, being designated in a charterparty as the point of destination our Courts have acted in accordance with those dictates of reason and practical expediency which ought to be paramount especially in the region of mercantile business. Just as a port may have one set of limits,...
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