Owners of Cargo Lately Laden on Board the Ship 'David Agmashenebeli' v Owners of the 'David Agmashenebeli' [QBD (Admiralty)]
| Jurisdiction | England & Wales |
| Judge | Colman J. |
| Judgment Date | 20 November 2000 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 20 November 2000 |
Colman J.
Queen's Bench Division (Admiralty Court).
Shipping — Cargo claim — Disclosure — Privilege — Surveyor supervising loading produced report referring to discoloration and contamination of cargo — Master claused bills of lading accordingly — Whether master entitled to clause bills in respect of condition of cargo — Surveyor produced subsequent report on condition of cargo in different terms — Shipowners sought disclosure of correspondence between cargo claimants and surveyor relating to reports — Whether disclosure of such correspondence required.
This was an application by defendant shipowners for further disclosure of documents by the claimant cargo owners.
A cargo of urea was shipped on board the defendant's vessel in Finland in 1995. The loading operation was subject to inspection by a surveyor, “K”, acting on behalf of cargo interests. K produced a contemporary report (“the May report”) which referred to certain discoloration of the cargo and slight contamination. The master claused the bills of lading to the effect that the cargo was discoloured and contained foreign materials. A dispute arose as to whether the master was entitled to clause the bills as he had done and proceedings followed. In the course of disclosure the claimants disclosed a second surveyors' report bearing the same date as the first but produced later (“the September report”) and describing the cargo as a sound normal parcel of urea in bulk. The owners sought further disclosure of correspondence between the claimants and surveyors relating to the reports, on the ground that if the claimants had tried to persuade the surveyors to alter the description of the condition of the cargo in the second report that would suggest that the master had acted reasonably in clausing the bills of lading on the basis of the condition of the cargo described in the first report. The claimants declined to disclose such documents, arguing that they were not relying on the later report and intended to call K to speak about the actual condition of the cargo, and that the correspondence was privileged.
Held, ruling that the defendants were entitled to disclosure of the documents:
1. The documents were relevant on the basis that evidence that the cargo owners were concerned to conceal the condition of the cargo evidenced by an independent surveyor and to substitute a more favourable report, could give rise to an inference that it was their view that it might be held to be reasonable to have claused the bills of lading on the basis of the first report.
2. There was strong prima facie evidence that the claimants procured the issue of the later report by the surveyors for the purpose of creating false evidence. The only source of information available to the surveyors as to the condition of the cargo at the port of shipment was K. When the later report was created K's original report had not been disclosed. There was a strong inference that the claimants considered that their case that the master had acted unreasonably would be undermined if the first report was in evidence and set out to produce a more favourable report. There were three competing public interests: that there should be full disclosure in litigation, that documents directed at obtaining and providing legal advice and evidence should be privileged from disclosure, and that conduct tending to pervert the course of justice was contrary to public policy and should be discouraged. The party resisting disclosure was not entitled to use the second principle to conceal conduct which was within the third principle. On the basis that there was a strong prima facie case of an attempt to concoct untrue evidence, the documents relevant to that attempt, being relevant to an issue in the action, should not be privileged and ought to be disclosed. ( Barclays Bank plc v EusticeWLR [1995] 1 WLR 1238 and Dubai Aluminium Co Ltd v Al AlawiWLR [1999] 1 WLR 1964 applied).
The following cases were referred to in the judgment:
Barclays Bank plc v EusticeWLR [1995] 1 WLR 1238.
Dubai Aluminium Co Ltd v Al AlawiWLR [1999] 1 WLR 1964.
Ventouris v MountainWLR [1991] 1 WLR 607.
Karen Maxwell (instructed by Ince & Co) for the claimants.
Stephen Hofmeyr QC (instructed by Richards Butler) for the defendants.
Colman J: This is an application on the part of the defendant owners for further disclosure of documents by the claimant cargo owners. It raises a point of some importance in the field of disclosure of documents.
The claim arises out of a carriage of cargo of urea on board the defendants' vessel “David Agmashenebeli” and has given rise to an issue as to whether the master was entitled to clause the bills of lading with the following words:
“Master's remarks:
Cargo discoloured also foreign materials e.g. plastic, rust, rubber, stone, black particles found in cargo.”
The claimants contend that, having regard to the true condition of the cargo at the port of loading, the master acted unreasonably in introducing these words onto the face of the bills of lading. The shipowners reply that, in view of the condition of the cargo as it appeared to the master, he was entitled to take the course which he did. This gives rise to two underlying issues:
(1) What was the actual apparent condition of the cargo at the port of leading?
(2) Was that condition such as to...
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