P & O Nedlloyd BV v Utaniko Ltd; Dampskibsselskabet AF, 1912 Aktieselskab v East West Corporation [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Thomas J,Brooke,Laws,Mance L JJ. |
| Judgment Date | 12 February 2003 |
| Neutral Citation | [2002] EWHC 83 (Comm) |
| Date | 12 February 2003 |
| Court | Queen's Bench Division (Commercial Court) |
[2002] EWHC 83 (Comm)
Queen's Bench Division (Commercial Court)
Court of Appeal (Civil Division).
Thomas J; Brooke, Laws and Mance L JJ.
Nicholas Hamblen QC and Michael Davey (instructed by Stallard and Hill Taylor Dickinson) for the appellants.
Stephen Males QC & Richard Waller (instructed by Clyde & Co) for the respondents.
The following cases were referred to in the judgments:
Albacruz v Albazero (The Albazero)ELR[1977] AC 774.
Asiatic Prince, The(1901) 108 Fed Rep 287.
Barber v MeyersteinELR(1870) LR 4 HL 317.
Barclays Bank Ltd v C & E CommrsUNK[1963] 1 Ll Rep 81.
Borealis AB v Stargas Ltd (The Berge Sisar)[2001] CLC 1084; [2002] 2 AC 205.
British Road Services Ltd v Arthur V Crutchley & Co LtdUNK[1968] 1 All ER 811.
Cia Portorafti Commerciale SA v Ultramar Panama Inc (The Captain Gregos) (No. 2)UNK[1990] 2 Ll Rep 395.
Deyong v ShenburnELR[1946] KB 227.
Dublin City Distillery (Great Brunswick Street, Dublin) Ltd v DohertyELR[1914] AC 823.
Edwards v West Herts Group Management CommitteeWLR[1957] 1 WLR 415.
Elder, Dempster & Co Ltd v Paterson Zochonis & Co LtdELR[1924] AC 522.
Enichem Anic SpA v Ampelos Shipping Co Ltd (The Delfini)UNK[1988] 2 Ll Rep 599; [1990] 1 Ll Rep 252 (CA).
Finlay v Liverpool and Great Western Steamship Co(1870) 23 LT 251.
Freedom (Owners) v Simmond Hunt & CoELR(1871) LR 3 PC 594.
Future Express, TheUNK[1992] 2 Ll Rep 79; [1993] 2 Ll Rep 542 (CA).
Gallaher Ltd v British Road Services LtdUNK[1974] 2 Ll Rep 440.
Garnham Harris and Elton Ltd v Alfred W Ellis (Transport) LtdUNK[1967] 2 Ll Rep 22.
Gatewhite Ltd v Iberia Lineas Aereas de Espana SAELR[1990] 1 QB 326.
Gilchrist Watt and Sanderson Pty Ltd v York Products Pty LtdWLR[1970] 1 WLR 1262.
Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (The Antwerpen)UNK[1994] 1 Ll Rep 213.
Glyn Mills v The East & West India Dock CoELR(1882) 7 App Cas 600.
Hansen-Tangens Rederi III A/S v Total Transport Corp (The Sagona)UNK[1984] 1 Ll Rep 194.
International Factors v RodriguezELR[1979] QB 351.
James Buchanan & Co Ltd v Hay's Transport Services LtdUNK[1972] 2 Ll Rep 535.
Jarvis v WilliamsWLR[1955] 1 WLR 71.
Kuwait Petroleum Corp v I & D Oil Carriers Ltd (The Houda)[1994] CLC 1037.
Leigh & Sillivan Ltd v Aliakmon Ltd (The Aliakmon)ELR[1986] AC 785; [1986] 2 Ll Rep 1.
Libyan Arab Foreign Bank v Bankers Trust CoELR[1989] QB 728.
London Joint Stock Bank v British Amsterdam Maritime AgencyUNK(1910) 16 Com Cas 102.
Maynegrain Pty Ltd v Compafina Bank[1982] 2 NSWLR 141; (1984) 58 ALJR 389 (PC).
MB Pyramid Sound NV v Briese Schiffahrts GmbH & Co KG MS Sina (The Ines) (No. 2)[1995] CLC 886.
Mears v London & South Western Railway CoENR(1862) 11 CB(NS) 850; 142 ER 1029.
Morris v C W Martin & Sons LtdELR[1966] 1 QB 716.
Motis Exports v Dampskibsselskabet AF 1912 AS[1999] CLC 914; [2000] CLC 515 (CA).
Moukataff v British Overseas Airways CorpUNK[1967] 1 Ll Rep 396.
Obestain Inc v National Mineral Development Corp Ltd (The Sanix Ace)UNK[1987] 1 Ll Rep 465.
Okehampton, TheELR[1913] P 173.
Pagnan SpA v Tradax Ocean Transportation SAUNK[1987] 2 All ER 565.
Patten v ThompsonENR(1816) 5 M & S 350; 105 ER 1079.
Petrocochino v BottELR(1874) LR 9 CP 355.
Pioneer Container, TheELR[1994] 2 AC 324.
Regaalite International Limited v Air Cargo Consolidation Service (UK) Ltd[1966] 3 HKLR 453.
Sewell v BurdickELR(1884) 10 App Cas 74.
Sucre Export SA v Northern River Shipping Ltd (The Sormovskiy 3068)[1994] CLC 433.
Sze Hai Tong Bank v Rambler Cycle CoELR[1959] AC 576.
Tallinna Laevauhisus A/S v Estonian State Steamship LineUNK(1946) 80 Ll Rep 99.
Tasman Pulp & Paper Co Ltd v Brambles JB O'Loghlen Ltd[1981] 2 NZLR 225.
Transcontainer Express Ltd v Custodian Security LtdUNK[1988] 1 Ll Rep 128.
Walton (Grain and Shipping) Ltd v British Italian Trading CoUNK[1959] 1 Ll Rep 223.
Waring v CoxENR(1808) 1 Camp 369; 170 ER 989.
Western Digital Corp v British Airways plc[2000] CLC 1276.
Shipping Carriage of Goods Contract Tort Agency Liner services Bills of lading Combined transport bills Goods shipped by claimants on defendant's liners services from Hong Kong to Chile Bills of lading endorsed to Chilean banks named as consignees Goods placed on arrival in Chile in licensed customs warehouse Receivers customs agents obtained release of goods without presentation of original bills Buyers did not pay and bills of lading returned to claimants but not endorsed back to them Whether claimants rights of suit under contracts of carriage transferred to Chilean banks by operation of law Whether claimants could sue as undisclosed principals -Whether claimants could sue in bailment as original bailors of goods to defendants despite transfer of rights under bills of lading Whether claimants could sue in tort on basis of reversionary proprietary interest Whether defendants in breach of duty by delivering goods without presentation of original bills and/or failing to contract with Chilean warehouse operators and port agents on basis that delivery would only be made against original bills Whether defendants could rely on exclusion clauses in bills Whether exclusion of liability subsequent to discharge from vessel covered loss by way of misdelivery without presentation of original bill Carriage of Goods by Sea Act 1992, s. 1, 2, 5.
These were appeals from the judgment of Thomas J holding the defendant carriers liable for the loss of goods in containers cleared through customs and delivered to buyers in Chile without presentation of original bills of lading.
The claimants shipped goods in containers on the defendants' liner services from Hong Kong to Chile. Under Chilean customs law, since duty had not been paid in advance, the goods had to be placed on arrival in a licensed customs warehouse. The defendants' agents arranged for the container loads to be placed in a customs warehouse. The customs agent of the receivers (Gold Crown) then paid the customs duty and the container loads were released to or to the order of the customs agent, without presentation of the relevant bills of lading. Gold Crown failed to pay for the goods.
The bills of lading issued by the defendants named the claimants as shippers and Gold Crown as the notify party, and the goods were consigned to the order of Chilean banks. The claimants had arranged with their Hong Kong bankers to pass the bills of lading to the Chilean banks for them (as the respondents' agents or sub-agents) to collect the price due to the claimants from Gold Crown. The bills were endorsed by the claimants and sent to the Chilean banks accordingly. The goods remained at all times the claimants' property. Neither the claimants' bankers nor the Chilean banks ever had a security interest in them and the banks at all times held the documents to the order and direction of the claimants. Ultimately, at the claimants' request, the bills were redelivered, but not endorsed, back by the Chilean banks to the claimants.
The claimants sued the carriers for delivering the goods without presentation of bills of lading and Thomas J held, first, that the claimants, by identifying the Chilean banks as consignees in the bills and by delivering such bills to the Chilean banks for collection of the price on their behalf, parted with all contractual rights of suit to the Chilean banks by virtue of s. 2 and 5 of the Carriage of Goods by Sea Act 1992. The claimants could not sue as principals of the Chilean banks and, in the absence of any endorsement of the bills, acquired no rights of suit by virtue of the redelivery to them of the bills by the Chilean banks. Secondly, he held that, as a result of the transfer of the bills to the Chilean banks, the claimants had also parted with any right to immediate possession of the goods, and had thereafter no rights in bailment as against the defendants or any other bailees of the goods. However, he held, thirdly, that the claimants, although they had no immediate right to possess as against the appellants or other bailees, could as proprietors of the goods claim, not just for any physical damage to the goods (of which there was none), but for the effective permanent deprivation of their proprietary interest, which had occurred as a result of the delivery of the goods to Gold Crown. The judge further held that there was no impediment under Chilean law or practice to prevent warehouse operators, or to prevent shipping line agents acting as container operators, from insisting upon the presentation by a consignee's customs agent of an original bill of lading before the release of goods and that the defendants should have made a contractual stipulation to that effect and were negligent in not doing so. The defendants could not rely on the exclusion clauses in the bills because they were completed in such a way as to make them combined transport bills, so that the exclusion clauses did not apply; alternatively, even if the relevant clauses applied, they did not cover misdelivery without presentation of the relevant bills of lading.
The defendants appealed arguing that they did not owe any duty of care to the claimants and were not in breach of any duty of care that they did owe, and that the judge was wrong in his conclusions regarding the application and scope of the exceptions clauses in the bills of lading. By a respondents' notice the claimants challenged the judge's decisions on title to sue.
Held, dismissing the appeals:
1. The judge was right that by virtue of s. 2 and 5 of the 1992 Act the claimants' rights of suit under the contracts of carriage were transferred to the Chilean banks when they became holders of the bills delivered to them by or with the authority of the claimants.
2. There was nothing in the statutory scheme of the 1992 Act to lend any support to the idea that, after a statutory transfer of contractual rights by a principal to its agent, the principal could still sue in...
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