Owners of cargo lately laden on board Tatry v Owners of Maciej Rataj ; (Case C-406/92)

JurisdictionEngland & Wales
JudgeLORD JUSTICE NEILL,LORD JUSTICE SCOTT,SIR CHRISTOPHER SLADE
Judgment Date05 June 1992
Judgment citation (vLex)[1992] EWCA Civ J0605-11
Docket Number92/0640
CourtCourt of Appeal (Civil Division)
Date05 June 1992
Owners of Cargo Onboard—ship "Tatry"
Respondents (Claimants)
and
Owners of Ship "Tatry"
Appellants (Owners)

[1992] EWCA Civ J0605-11

Before:

Lord Justice Neill

Lord Justice Scott

and

Sir Christopher Slade

92/0640

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Royal Courts of Justice

MR. STEPHEN TOMLINSON QC and MR. CHARLES PRIDAY (instructed by Messrs Lawrence Graham) appeared on behalf of the Appellants (Owners).

MR. ALISTAIR SCHAFF and MR. DAVID BAILEY (instructed by Messrs Clyde & Co.) appeared on behalf of the Respondents (Group 2 and Group 3 Claimants).

The First Claimants did not appear and were not represented.

and
1

LORD JUSTICE NEILL
2

The appellants in these appeals are the Polish owners of the ships TATRY and MACIEJ RATAJ. I shall call them "the owners".

3

In September 1988 a cargo of soyabean oil was loaded on the TATRY in Brazil for delivery in Europe in Rotterdam and Hamburg. Part of the cargo was discharged in Rotterdam on 1 or 2 October 1988. This part of the cargo had been shipped under two groups of bills of lading which require to be considered separately. Group 1 consisted of the parcels of cargo carried under bills of lading Nos 7, 9B, 11, 13 and 14. Where necessary I shall refer to the owners of these parcels of cargo as "the Group 1 claimants". Group 2 consisted of the parcels of cargo which had been shipped under bills of lading Nos 3, 6, 8, 9A and 12. Where necessary I shall refer to the owners of these parcels of cargo as "the Group 2 claimants".

4

The balance of the cargo was discharged in Hamburg on 4 October 1988. The parcels of cargo discharged in Hamburg had been shipped under bills of lading Nos 1, 2, 4 and 10. Where necessary I shall refer to the owners of these Hamburg parcels as "the Group 3 claimants".

5

The respondents in these appeals are the Group 2 claimants and the Group 3 claimants. The Group 1 claimants are not parties. All the cargo owners, however, allege that on arrival at Rotterdam and Hamburg the soyabean oil was found to have been contaminated by diesel oil or other hydrocarbons.

6

The first cargo owners to complain were the Group 1 claimants. On 6 October 1988 Dr. Bitter, a Dutch lawyer acting on behalf of the Group 1 claimants, sent a fax to the owners' agents making a claim for US$845,000 and requesting a guarantee on the Rotterdam 1985 form in the sum of US$1.098,500 to cover the claim and costs. Dr. Bitter stated that he would not take steps to arrest the owners' motor vessel BUDOWLANY, then in Rotterdam, provided a P and I Club guarantee were issued as requested and on condition that it was agreed on behalf of the owners "that the Rotterdam District Court shall be competent to hear all disputes as referred to in the guarantee" (I 83). On 7 October the owners' agents replied confirming that the P and I Club had authorised the issue of a guarantee on the Rotterdam form and that the owners had agreed that "the Rotterdam District Court is the competent court".

7

Action on behalf of the Group 3 claimants was taken also on 7 October 1988. On that date Comexas NV., the insurers of the Hamburg cargo, instructed agents in Hamburg to arrest the TATRY. But they were too late; the ship had already left. Comexas then got in touch with the owners' agents in Rotterdam; subsequently communications took place between the Club and London solicitors instructed by Comexas relating to the provision of security for a claim by Comexas for US$2 million. On 15 November 1988 the solicitors requested an undertaking from the Club in lieu of security and stipulated that the owners should agree that the claims in respect of the Hamburg cargo should "be submitted to the jurisdiction of the English High Court" (I 97).

8

Further communications followed but no undertaking as requested by the solicitors was given. On 18 November 1988, however, Dutch lawyers acting on behalf of the owners and the Club issued proceedings in the Rotterdam District Court for a declaration that the owners were not liable "for the alleged contamination with hydrocarbons of the consignments of soyabean oil, belonging to the individual defendants, or at least received by them at Rotterdam and Hamburg respectively against presentation of the relating bills of lading, which were shipped from Rio Grande to Rotterdam and Hamburg respectively with the seagoing vessel TATRY,…" (I 121). The defendants named in these proceedings were—

  • (a) IGEB International BV., the company which took delivery of the Group 1 cargo in Rotterdam. It is accepted for the purpose of the present proceedings that IGEB are appropriate defendants to represent the companies who were interested as owners in the Group 1 cargo.

  • (b) Comexas, Daehn & Hamann (the company which took delivery of the Group 3 cargo in Hamburg) and three of the four companies who were interested as owners in the Group 3 cargo. The fourth company who were interested as owners, Philipp Brothers Limited ("Phibro"), were not joined as defendants.

9

It is to be noted that not only were Phibro not joined as defendants as owners of part of the Group 3 cargo, but that no claim for any declaratory relief was made at that stage in respect of the Group 2 cargo, either against Phibro (who were interested as the owners) or against ICM BV (the company which took delivery of the Group 2 cargo in Rotterdam).

10

No further proceedings in respect of the TATRY or its cargo were taken in the Netherlands or in the United Kingdom for several months. In September 1989, however, the MACIEJ RATAJ, a ship in the same ownership as the TATRY, docked in Liverpool. On 14 September 1989 the Group 3 claimants issued a writ in rem against the TATRY and the MACIEJ RATAJ. I shall call these proceedings "Folio 2006". On the same day, 14 September, the Group 2 claimants, on whose behalf a claim had been intimated in June 1989, issued a writ in rem against both vessels. I shall call the in rem proceedings by the Group 2 claimants "Folio 2007". On 15 September the writs in both Folio 2006 and Folio 2007 were served on the MACIEJ RATAJ and the ship was arrested.

11

Security in the form of a letter of guarantee was then provided by the Club and the MACIEJ RATAJ was released. In the course of the next year or so other proceedings relating to the TATRY cargo were instituted in the Netherlands.

12

On 18 September 1989 the owners and the Club brought declaratory proceedings in the Rotterdam District Court against ICM BV. as agents for Phibro. These proceedings related to the Group 2 cargo and the relief was similar to that claimed in the action brought ten months earlier relating to the Group 1 cargo and the Group 3 cargo.

13

On 29 September 1989 IGEB and Heinrich Hanno (acting, it seems, on behalf of all the Group 1 claimants) brought a claim for damages in the Rotterdam District Court against the owners and also against the charterers and the sub-charterers of the TATRY. On the same day, 29 September 1989, ICM BV. and Phibro brought a claim for damages in the same court against the owners in respect of the Group 2 cargo. These proceedings were said to be "protective" proceedings. A few days later, on 3 October 1989, the defendants in the declaratory proceedings relating to the Group 3 cargo (other than Comexas) brought a claim for damages in the same court against the owners in respect of the Group 3 cargo. These proceedings also were said to be "protective" proceedings.

14

About a year later, on 26 October 1990, the owners brought proceedings in the Rotterdam District Court to limit their liability in accordance with the International Convention Relating to the Limitation of the Liability of Owners of Seagoing Ships concluded at Brussels on 10 October 1957 ("the 1957 Limitation Convention"). On 17 December 1990 the Rotterdam District Court set the amount of the limitation fund and on 18 January 1991 the owners lodged security with the court in accordance with the court's order. On 27th March 1991 claims in the limitation proceedings were filed on a "without prejudice" basis by claimants in all three groups.

15

. It is to be noted that the Netherlands was a party to the 1957 Limitation Convention but in 1988 had not yet adopted the later International Convention on Limitation of Liability for Maritime Claims concluded in London on 19 November 1976 ("the 1976 Limitation Convention"). The Netherlands did not adopt the 1976 Limitation Convention until 1990. It is further to be noted that, on the basis of the tonnage of the TATRY, the liability of the owners under the terms of the 1957 Limitation Convention would be limited to about US$1.25 million, whereas under the terms of the 1976 Limitation Convention the limitation of liability would be at the substantially higher figure of about US$4.225 million. The United Kingdom was a party to the 1976 Limitation Convention which came into force here on 1 December 1986. The claims for damages by the cargo interests in respect of the contaminated cargo may amount to about US$3.5 million.

16

It is apparent therefore from this history of the matter that there are in existence no less than eight sets of proceedings relating to the cargo ex the TATRY:

17

In the Netherlands

  • (1) The declaratory proceedings brought by the owners and the Club against the Group 1 and Group 3 claimants (other than Phibro) in respect of the Group 1 and Group 3 cargoes on 18 November 1988.

  • (2) The declaratory proceedings brought by the owners against ICM BV. in respect of the Group 2 cargo on 18 September 1989.

  • (3) The proceedings for damages brought by IGEB and Hanno in respect of the Group 1 cargo on 29 September 1989.

  • (4) The protective proceedings...

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