Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food (Agostino Bertani, Cape Rodney, Queen City, Riverton)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE DONOVAN |
| Judgment Date | 28 March 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0328-3 |
| Date | 28 March 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0328-3
Lord Justice Sellers
Lord Justice Willmer and
Lord Justice Donovan
In The Supreme Court of Judicature
Court of Appeal
Mr. EUSTACE ROSKILL, Q.C., The Hon. T.G. ROCHE, Q.C. and Mr. A.J. BATESON (instructed by Messrs. Stokes & Mitcalfe) appeared on behalf of the Appellants the first three Plaintiffs; and (instructed by Messrs. Richards & Butler) on behalf of the Appellant the fourth Plaintiff.
Mr. A.A. HOCATTA, Q.C., Mr. MICHAEL KEER and Mr. ANTHONY DIAMOND (instructed by the Treasury Solicitor) appeared on behalf of the Respondent-Defendant the Ministry of Agriculture, Fisheries & Food; and (instructed by Messrs. William A. Crump & Son) on behalf of the Respondent-Defendant the President of India.
: Only four of the five separate actions which were tried together before Mr. Justice McNair in the Summer Term of 1959 are under appeal to this court. The case of the "Moderator", a vessel chartered by the Government of South Africa, has not been further pursued.
The four cases were selected and have been retained on appeal in order to raise in their varying circumstances, including slightly varying provisions in a common form of charterparty, a number of important and disputed questions which arose between tramp shipowners and the charterers, the Ministry of Agriculture, Fisheries and Food in three cases and the President of India in the latest dated charterparty concerning the s.s. "Agostino Bertani", during and following the strike of no more than some two hundred and sixty men who worked the grain elevators at Vancouver. The strike commenced on the 17th February, 1953, in respect of five out of the seven elevators normally available for loading grain in bulk in that port and it lasted until the 7th May, 1953.
All the four plaintiff shipowners claim demurrage and damages against the charterers for the wrongful detention of their ship by them and the fundamental question is who is to bear the loss which undoubtedly arose because the ships awaiting cargo were idle for many weeks. Does the loss remain upon the shipowners concerned or are the charterers liable in whole or in part?
The loading facilities for bulk grain were not entirely closed by the strike as two of the elevators were not affected and continued working. The fact therefore that the inability to load at the port was not total and that some cargo was more or less regularly loaded during the strike through the two working elevators played a prominent part in the argument for the appellants. Such bulk wheat as was loaded during the strike period, no more than 15 per cent. of the total capacity of all the seven elevators when working, was directed by the Canadian Wheat Board's representative in Vancouver, Mr. Smith, to be loaded in small quantities or parcels on to liners, that is ships trading
regularly to time schedules and carrying mixed cargoes, and none at all on to "tramps", that is ships chartered to carry full and complete cargoes such as the plaintiffs' ships were, each with a carrying capacity of roughly 9,000 tons.
The judgment of Mr. Justice McNair sets out clearly and conveniently the relevant provisions of the charterparties between the parties and the material dates relevant to the respective parties and the fulfilment of their obligations thereunder. The judgment also deals in detail with the facts relating to the strike and these findings of fact, as distinct from the inferences to be drawn from them, have not been challenged before this court. I therefore refer to the judgment for these matters and for the summary of the respective arguments which were somewhat modified but not I think enlarged in the sub-missions made to us and I do not formally repeat them.
At the times when the lay or working days would have commenced to run and to count in respect of each of the four ships and when in the ordinary course the intended cargo of wheat in bulk would have begun to be loaded in each ship or at least when each ship would have come under an elevator in its turn if all the elevators had been working, the strike was on. In the circumstances the charterers loaded nothing on to these four ships until the strike was over and have throughout relied on clause 31 of the charterparty to relieve them from demurrage in each case - "lay or working days shall not count at ports of loading during any time when…the loading of the cargo or the intended cargo or any part thereof is delayed by…force majeure… strikes or any other hindrance of whatsoever nature beyond the charterers' control…"
As the learned judge pointed out, the whole clause is a wide one. It covers delay in the supply or bringing down of cargo as well as with delay in loading. It brings in many causes of delay and it is not disputed that the provision "any other hindrance of whatsoever nature beyond the charterer's control" is not limited to causes ejusdem generis with the earlier specified causes and the words must be given their literal meaning.
If the charterers were justified in ordering the ships to Vancouver in the first place and in not removing them to any other port so that Vancouver was and remained a properly nominated port or were not required to provide at Vancouver or elsewhere within the range of ports specified in the charterparty any other cargo but wheat in bulk, all of which matters call for consideration later, then in my opinion the clause amply protects the charterers against the claims in these cases. The learned judge made a finding early in his judgment that the respective charterers had made reasonable and proper arrangements for securing the delivery of the cargoes to the ships in due time and it was not disputed that the quantities of bulk wheat required from the Board for each of the ships were properly notified in due time by each of the charterers. What did cause the delay? When the strike came on February 17th as it was not complete it involved of necessity and in the ordinary course of events that all the tonnage which was available for loading could not be loaded as it normally would be and that some arrangement would have to be made in respect of the limited loading capacity which alone remained available.
In so far as only a small percentage could be loaded and no more, it would I think clearly be right to say that the balance of about 85 per cent. could not be loaded from Vancouver because of the strike. That would be so from the point of view of the shippers or of one consignee for the whole of the shipments if such had been the case. Is the matter to be viewed differently when many ships awaited cargo and in respect of each ship? It is true that some wheat in bulk up to 63,435 tons was loaded in parcels on a number of liner vessels (but for 17,000 tons, into cargo space reserved by the defendants), and if it had not been so loaded, and if it could have been loaded on some of the tramps, would it have made any difference? In quantity it would have filled perhaps five or six of them. Then the other available tramps could have complained that if some had been filled so could any other of them have been loaded instead and the liners could have complained that no parcels were received by them.
In such circumstances, when a reasonable and sensible arrangement was made for loading what could be loaded by distributing small parcels between the liners I think those who are shut out from receiving cargo can properly be said to be shut out by the strike.
The passages quoted by the learned judge from Lord Justice Fletcher Moulton in ( Leonis v. Rank (No.2) 13 Commercial Cases, page 295, at page 297) and from Lord Dunedin's speech in ( Leyland Shipping Co. v. Norwich Union 1918 Appeal Cases page 350, at page 362) serve as guides and I think justify his conclusion that there is insufficient ground to differentiate between the strike and the emergency action taken in view of the strike. But if this view is to be rejected I feel no doubt that the charterers could rely on the loading having been delayed by a hindrance beyond their control, especially as they can rely on a hindrance of whatsoever nature.
The appellants' submission that the charterers are to be held responsible for what Mr. Smith did is quite untenable. The argument was based on the fact that the charterers had bought wheat in bulk from the Canadian Wheat Board f.o.b. Vancouver and therefore in fulfilling their obligation to the charterers, as the buyers, they were at the same time fulfilling the charterers' obligation to put on board a full and complete cargo on each of the ships concerned. Apart from that no contract of agency was established between the Canadian Wheat Board or Mr. Smith, its representative, and the charterers.
The Canadian Wheat Board Act, 1935, set up a body known as the Canadian Wheat Board with wide powers and duties. By section 4 sub-section 2 of the Act the Board is, for all purposes, an agent of Her Majesty in right of Canada and its powers under the Act may be exercised by it only as an agent of Her Majesty in the said right. Section 4 sub-section provides as follows: "The Board is incorporated with the object of marketing in an orderly manner, in interprovincial and export trade, grain grown in Canada, and possesses the following powers: (a) to buy, take delivery of, store, transfer, sell, ship or otherwise dispose of grain…(i) to authorize any officer or employee of the Board or any other person to act on behalf of the Board in the conduct of its operations...
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