Parsons Corporation v C v Scheepvaartonderneming Happy Ranger
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,Lord Justice Rix,Lord Justice Aldous |
| Judgment Date | 17 May 2002 |
| Neutral Citation | [2002] EWCA Civ 694 |
| Docket Number | Case No: A3/2001/1695 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2002 |
[2002] EWCA Civ 694
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MrJustice Tomlinson
Lord Justice Aldous
Lord Justice Tuckey and
Lord Justice Rix
Case No: A3/2001/1695
Mr Iain Milligan QC & Mr Richard Lord QC (instructed by Messrs Barlow Lyde & Gilbert, Solicitors) for the Appellants
Mr Nigel Teare QC & Mr Nigel Jacobs (instructed by Messrs Holmes, Hardingham, Walser Johnston Winter, Solicitors) for the Respondents
The main questions on this appeal are whether the Hague-Visby Rules apply to the contract of carriage concerned and if they do not whether the carriers have successfully limited their liability to £100 per package. These questions arise on the claimants' appeal from Tomlinson J who decided as one of several preliminary issues that the Hague-Visby Rules did not apply because the contract was "not covered by a bill of lading or any similar document of title". His decision is reported at [2001] 2 Lloyd's Rep. 530. The other question was not argued before the Judge.
The facts can be stated shortly. The contract of carriage was made on the 7 th October 1997 between the first defendants who were the owners of the vessel "Happy Ranger" and the third claimants. It was for the carriage by sea of three reactors from Porto Marghera in Italy to Jubail in Saudi Arabia. On the 11th March 1998 one of the reactors weighing approximately 833 mt. was being loaded aboard the vessel when one of the hooks on one of the vessel's cranes broke, the reactor fell to the ground and was damaged. The claim is for about US$2.4 million.
The contract consists of 3 documents: the signed printed front page, a 6 page printed rider containing 18 clauses and an attached specimen form of bill of lading.
The printed front page is headed "Contract of Carriage". For present purposes I only need refer to clause 5 which says:
"The Carrier's regular form of Bill of Lading as per specimen attached, is applicable and shall form part of this Contract. In the event of a conflict between the Bill of Lading and this Contract, the terms, conditions and exceptions of this Contract shall prevail to the extent of such conflict."
The rider clauses contain, as the judge noted, a number of provisions which one would ordinarily expect to find in a voyage charter party but not in a straight forward contract of carriage contained in or evidenced by a bill of lading. Clause 1 made the lump sum freight payable "on signing Bills of Lading". Clause 11 says:
"The Master will deliver the cargo only upon presentation of duly endorsed original Bill(s) of Lading. In case of non-presentation of these documents all time lost in waiting to count as lay time or time for which damages for detention are due."
Clause 15 provides that "Any dispute arising under this Contract of Carriage and Bill of Lading" is to be decided in London and "English law shall apply."
The printed words on the front of the specimen bill of lading say:
"Shipped onboard the vessel mentioned … the goods mentioned below … to be carried subject to the terms, conditions and exceptions mentioned in this Bill of Lading, which constitutes the contract of carriage between the Merchant and the Owner of the vessel … to the port of discharge … and to be delivered at the aforesaid port, unto the Consignee or to his or their assigns …"
"In witness whereof the Carrier or his agent has signed the number of original Bills of Lading stated below, all of this tenor and date. One Bill of Lading duly endorsed must be surrendered in exchange for the goods upon which the others shall stand void."
The printed terms and conditions on the back of the bill define "Merchant" to include the shipper, the receiver, the consignee, the holder of the bill of lading and the owner of the cargo "who are jointly and severally liable".
The front of the bill contains boxes for the shipper and consignee to be identified and a box saying:
"Issued pursuant to Contract of Carriage dated: … between the Carrier and the Merchant mentioned therein."
The first of the printed terms on the back of the bill says:
"1. PREAMBLE
This Bill of Lading has been issued pursuant to and in accordance with a Contract of Carriage dated as overleaf. All terms and conditions, liberties and exceptions of the Contract of Carriage dated as overleaf are herewith incorporated. In the event of a conflict between this Bill of Lading and the Contract of Carriage, the terms, conditions, liberties and exceptions of the Contract of Carriage shall prevail to the extent of such conflict."
Clause 3 is as follows:
"3. GENERAL PARAMOUNT CLAUSE
The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels 25 August 1924, as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, Articles 1 to VIII of the Hague Rules shall apply. In such case the liability of the Carrier shall be limited to £100.-sterling per package.
Trades where Hague-Visby Rules apply
In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on 23 February 1968—the Hague-Visby Rules—apply compulsorily, the provisions of the respective legislation shall be considered incorporated in this Bill of Lading. The Carrier takes all reservations possible under such applicable legislation, relating to the period before loading and after discharging and while the goods are in the charge of another Carrier, and to deck cargo and live animals.
Trades where U.S. COGSA applies
This Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16 April 1936, which shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act …
Trades where the Canadian Water Carriage of Goods Act, 1936 applies
All the terms, provisions and conditions of the Canadian Water Carriage of Goods Act, 1936 and of the rules comprising the schedule thereto are, so far as applicable, to govern the contract contained in this Bill of Lading and the Shipowners are to be entitled to the benefit of all privileges, rights and immunities contained in such Act and in the schedule thereto as if the same were herein specifically set out …"
Clause 4 applied Dutch law "unless provided otherwise in this Bill".
The bills relating to the shipment of the other 2 reactors the subject of the contract and the bill relating to the subsequent shipment of the damaged reactor are in the same form as the specimen bill. In each case they showed the shipper as Parsons International, the fourth claimant and the consignee as Saudi Arabia Parsons, the fifth claimant.
The Hague Rules are not enacted in Italy so the first sentence of the first paragraph of clause 3 of the bill is not applicable. The argument centres around the second paragraph of this clause. If, as the appellants contend, this paragraph applies the Hague-Visby Rules, it is accepted that there is no scope for the application of the default provision in the second and third sentences of the first paragraph of the clause. To understand the argument it is first necessary to set out some of the rules.
These Rules were given the force of law in the United Kingdom by the Carriage of Goods By Sea Act 1971. The Rules are scheduled to the Act.
Article II says:
"… under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody and the care and discharge of such goods shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth."
Article I (b) says that in the Rules:
"'Contract of Carriage' applies only to contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.
This provision is said to mirror s.1(4) of the 1971 Act which says:
'… nothing in this section shall be taken as applying anything in the Rules to any contract for the carriage of goods by sea, unless the contract expressly or by implication provides for the issue of a bill of lading or any similar document of title."
Article V adds:
"A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and obligations under these rules, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper. The provisions of these rules shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under a charter party they shall comply with the terms of these rules."
Article X says:
"The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if: …
(b) The carriage is from a port in a contracting State. …
whatever may be the nationality of the ship the carrier, the...
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