Re Arbitration between F. A. Tamplin Steamship Company Ltd and Anglo-Mexican Petroleum Products Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1916 |
| Date | 24 July 1916 |
| Court | House of Lords |
House of Lords
Lord Chancellor (Lord Buckmaster), Earl Loreburn, Viscount Haldane, Lord Atkinson, and Lord Parker of Waddington
Re Arbitration between F. A. Tamplin Steamship Company Limited and Anglo-Mexican Petroleum Products Company Limited
Horlock v. BealDID=ASPM 13 Asp. Mar. Law Cas. 250 114 L. T. Rep. 193 (1916) 1 A. C. 486
Dahl v. NelsonELR 44 L. T. Rep. 381 6 App Cas. 38
Geipel v. SmithDID=ASPM 1 Asp. Mar. Law Cas. 268 26 L. T. Rep. 361 L. Rep. 7 Q. B. 404
Jackson v. Union Marine Insurance CompanyDID=ASPM 2 Asp. Mar. Law Cas. 435 31 L. T. Rep. 789 L. Tep. 10 C. P. 125
Appleby v. Myers 16 L. T. Rep. 669 L. Rep. 2 C. P. 651
Paradine v. JaneENR Aleyn, 26
Taylor v. CaldwellENR 3 B. & S. 826
Poussard v. SpiersELR 34 L. T. Rep. 572 1 Q. B. Div. 410
Tully v. HowlingELR 36 L. T. Rep. 163 2 Q. B. Div. 182
Admiral Shipping Company v. Weidner and Co.DID=ASPM 13 Asp. Mar. Law Cas. 246 114 L. T. Rep. 171 (1916) 1 K. B., at pp. 437.8
Time charter-party — Oil tank steamer — Period of charter unexpired
Decision of the Court of Appeal (13 Asp. Mar. Law Cas. 284; 114 L. T. Rep. 259; (1916) 1 K. B. 485) affirmed.
MARITIME LAW CASES. 467 H.L.] Arbit F. A. Tamplin SS. Co. & Angalo-Maxican Petroleum Products Co, [H.L. JlfareA 23.27,28. and July 24, 1913. (Before tbe Lord Ch - .ncsli.ob (Lord Baok-niBster), Earl Lobxbubn, Vieconnt Haldanb, Lord Atki - son, and Lord Pabkbb of Waddingtow.) Be Abbizsatioh bstwbbit F. A. Tamplin STf!AMeUIP COUPANT LIMITED AND AK0L0 MbXIOAH PATBOLEUfil PbODVCIS COUPANT Limited, (a) ON APFXAL FfiOH THE COUBT OF APPEAI, IN rOLAND. Time charUr-party - Oil tank sleamer-Period of charttr unexpir - Requisition by British Oovem-ment - - Structural alterationt to adai4 htr for ute as transport - jRtsiraint of piincesFruelra-lion of adventure - Efitct on contract. By a eharter'iparty, ilated in May 1912, the otonera of a ship designed to carry cargoes of oil in bulk agreed to ki and the chatterers agreed to hire the ship for a period of sixty calendar months - which fteriod vx - dd txpin in Dec. 1917 - to he employed in lawful trades for voyages between certain specified ports for the carriage of refined ptlrdeum and (or) crude oil and (or) its products as the charlerirs or their agents should direct. Thschartirers teere to pay as freight a fixed sum per month. Under certain rcslrictions the carriage of other suitable cargo than oil v - ' to be aUomd. Power ims conferred on ine charterers to underlet the ship on Admirally or other service, but without prejudice to the chcrkr,' party. The eharle also contained thi usval exception of restraint of princes. The ship una requisitioned by lAe Gov.nmetii in Dec, 1914 and again in Feb. 1915. kI'a she was altered to fit her for the transport of troops. The dwiHtrirshaid paid and were uMing to cunft'tve fo pay the stipulated freight. In these circumstances the oumera ((he appellants) claimed they were enlitlid to treat (he contract as at an end. U(ld (Viscount Ualdaneand Lord AtMnson dissenting), that under the circumstances this charter' party uns noildetermined wJien the sleamir fvas requisitioned, and that the requisiiinn did not suspend it or affect the rights of the oicners or charterers under it. Query: Dc.s the doctrine of frustration apply tj a time charier P Decision of the Court of Appeal (13 Asp. Mar. Law Cas. 28; 114 L. T. Hep. 259; (1910) 1 A'. B. 4S5) a/firmed. AprsAi. bj ibe steaiDBhip company from a deoUion of tbe Ooort o( Appeal (Lord Cozens-Hardy, MA. and Bankes and Warrington, L.J J.), rpporced 13 Asp. Mar. Law Cas 284; 1I4L. T. fiep. 259; (1916) 1 K. B. 485, which aOBroed a jadgment (1915) 3 K. B. 668) of Atkin, J. npon an award stated in the form of a special case by an arbitrator. The qaestion arising on the faotp, which are fally stated in tbe jndgments of their Lordships, was whether a charter-party of a tank steamer bad bien determined (or saepended) by the req'jisiliouing of tbe vesEel by the British Qoreromentj and by ber strnctnral alteration and conversion into, and use as. a troopship. The appellants, the owners, affirmed this; the respondents, the charterers, denied it. The arbitrator awarded, snbjebk to the opinion of the ooQi t, that the charter-party was terminated by the reqaisition. but Atkin, J. hcJd that it remained in force, and the Court of Appeal affirmed that decision. George Wallace, K.O. and Baeburn for the appellants Sir B. Finlay, K.O., MacKinnon, KC, and B. A. Wright for the respondents. The foUowiLg cases were referred to: AppJebv T. Myert, 16 L. T. Bep. 669; L. Bep.2 c.p.'esi; Kicholl T. Athton, 84 L. T. Eep. 804; (1901) 2 K. B.120; Krell f. Henri/, 89 L. T. Eep. 328 j (1908) 3 K. B. 740. 7i8; Paradine v. Jatix, Aleyn, 26; Taylor ?. Oatdwell, 3 6. & S. 82C ; Brown V. Tamer, BrigMman, and Co., 105 L. T. Bep. 562; (1912)A. C. 12; Qiiprl V. BmitK, 1 Asp. Mar. Law Caa. 268; 26 h. T. Bep. 361; L. Bep. 7 Q. B. 404; JacJcSon r. Union Marina Insurance Company Limited, 'I Asp. Mar. Law Cas. 435; 31 L. T. Bep. 789; L. Bep. 10 C. P. 125 ; HMdson v. Hl, 30 L. X. Eep. 555 ; 43 L. J. 273. C. P. Dahl-r.'Nehon, 44 L. T. Eep. 381; 6 App. Cas. 38; Tulhi V. HowUns, 36 L. T. Eep. 163 j 2 Q. B. Dly- 1D2; Vousiard ?. Spien, 34 L. T. Bsp. 572; 1 Q. B. DiT. 410; B'ritith and Foreign yariw) Insurance Company Limited v. Sanday and Co., 13 Asp. Mar. Law Cas. 28; 114 L. T. 3ep. 521; (1916) 1 A.C. 050 ; affirmiogr 0. A., 13 A - p. Mm. Law Caa, 116; 113L. T.Bep,4075 (1915)2K. B.781! Horlock V. Btoi, 114 L. T. Rsp 193 ; (1916) 1 A. 0. 486) (t) BepottM by W, S. Buv, B, Surbter-At'Akir. 468 MARITIME LAW CASES. H.L.] Arbit F. A. Tamplin SS. Co. & Angalo-Maxican Petroleum Products Co. [H.L. M Admiral Shipping Compatiy v. Weidnar and Co., 13 Asp. Mar. Law Cas. 246; 114 L. 1'. £ap. 171; (1916) 1 K. B. 129. The Hooae, having taken time for oonsideiaticnj dismissed the appd. Earl LoBBBUUN. - !fc ia unneoeaeary to repeat the naniatire of what has happened in this case or to analyse again the charter-party. This ship was chartered for five years. She war to be managed and controlled by the owners, bat the use to be made of her in carrying merchandise within prescribed limitations depended upon the direction of the charterers. From Deo. 191£; till Dec. 1914 she was employed accordingly. From that date till the hearing of the case she has beeu employed by His Majesty's Government for purposes connected with the war. There are, therefore, nineteen months of the five years unexpired. No one knows how lone the Grovem-ment will continue to use this vessel, but, so long as they do use her, neither party to the contract can carry out their common adventure. It may be as well to say that the first requisition of this ship was in Dec. 1914 and the second in F. b. 1915, but she was not released from the day she was first taken over._ In these circumstances the owners maintain that Mr. Leek's award, t olding that this charter-party came to an end when the staamer was requisitioned in Feb. 1915, is right. In order to decide this question it is necessary to ascertain the principle of law which underlies the authorities. I believe it to be as follows. When a lawful contract has been made and there Is no default, a court of law has no power to discharge either party from the performance of it unless eilbor the rights of someone else or some Act of Parliament give the necessary jurisdiotion. But a court can and ought to examine the contract and circumstances ;n which it was made, not, of course, to vary, bet only to explain it, in order to see whetner ui not from the nature of it the parties must he.ve made their bargain on the footing tbaf a particular thing or itate of things iwonld continue to exist. And if they must have done so, then a taiay to that effect will be implied, '.hough it be not expressed in the contract. In applying this rn!e it is manifest that such a term can rarely be implied except where the discontinuance is such as to upset altogether the purpose of the contract. Some delay or seme change is very common in all human affairs, and it cannot be supposed that any bargain has been mado on the tacit condition that such a thing will not happen ir any degree. In the recent case of Horhck v. Beat (13 Ap. Mar. Law Oas. 250; 114 L, T. Bep, 193; (1916) 1 A. 0. 6) this Qonse considered the law upon this subject, and previous decisions weK - fully reviewed, esuecielly in the opiaioa delivered by Lord Atkinson. An ezamine-tion of those decisions confirms me in the view that, when osr courts have ueld innocent contracting parties absolved from further performance of their promisee, it has been upon the ground that there was sn implied term in the contract which entled them t be absolved. Sometimes it is put that performance 'as beer me impossible avil that h. party concerned did not piomire topekfoim anim"'3sifoilitj'. Sometimsa ' it is pnt that the parties contemplated a oertaia state of things v. hich fell oct otherwise. In most of the cases it is said that there was an implied condition in the contract which operated to release the parties from performing it, and in all of them I think that was at bottom the principle npon which the court proceeded. It is, in my opinion, the tme principle, for no court has an aVsulving power, but it can infer from the nature of the contract and the surrounding oiroumatancea that a condition which is not expressed was a foundation on which the parties contracted. When this question arises in regard to commercial contracts, as happened in Dahl v. Nehon (44 L. T. Bep. 381; 6 App. Oas. 88). Geipel r. Smith (1 Asp. Mar. Law Oas. 268; 26 L. T. Bep. 361), and JacTtion v. JJniori Martne Jnturanes ComTpany (2 Asp. Mar. Law Oas. 435; 31 L. T. Bep. 789; L. Bsp. 10 0. P. 125), the principle is the same, and the language used as to " frustration of the adventure" merely adapts it to the class of cases in hand. In all these three oases it was held, to use the language of Lord Blackburot "that a delay in...
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