Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food (Agostino Bertani, Cape Rodney, Queen City, Riverton)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Radcliffe,Lord Cohen,Lord Keith of Avonholm,Lord Evershed,Lord Devlin
Judgment Date07 Feb 1963
Judgment citation (vLex)[1963] UKHL J0207-1

[1963] UKHL J0207-1

House of Lords

Viscount Radcliffe

Lord Cohen

Lord Keith of Avonholm

Lord Evershed

Lord Devlin

Cape of Good Hope Motor Ship Company Limited
and
Ministry of Agriculture, Fisheries and Food
Carlton Steamship Co. Limited and Others
and
Ministry of Agriculture, Fisheries and Food
Reardon Smith Line Limited
and
Ministry of Agriculture, Fisheries and Food
[Consolidated Appeals]

Upon Report from the Appellate Committee, to whom was referred the Cause Cape of Good Hope Motor Ship Company Limited against Ministry of Agriculture, Fisheries and Food, Carlton Steamship Co. Limited and others against Ministry of Agriculture, Fisheries and Food, Reardon Smith Line Limited against Ministry of Agriculture, Fisheries and Food, (Consolidated Appeals), that the Committee had heard Counsel, as well on Monday the 15th, as on Tuesday the 16th, Wednesday the 17th, Thursday the 18th, Monday the 22d, Tuesday the 23d, Wednesday the 24th, Thursday the 25th and Monday the 29th, days of October last upon the Petition and Appeal of Cape of Good Hope Motor Ship Company Limited, of 36 Renfield Street, Glasgow, Scotland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th of March 1961, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of Carlton Steamship Co. Limited and Cambay Steamship Co. Limited, of Maritime Buildings, in the City and County of Newcastle-upon-Tyne, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th of March 1961, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of Reardon Smith Line Limited, of Colum Buildings, Mount Stuart Square, Cardiff, Glamorgan, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th of March 1961, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet (which said Appeals were, by an Order of this House of the 1st day of November 1961, ordered to be consolidated); as also upon the Case of the Ministry of Agriculture, Fisheries and Food, lodged in answer to the said Appeals; and due consideration had this day of what was offered on either side in these Appeals:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal, of the 28th day of March 1961, complained of in the said Appeals, be, and the same are hereby Discharged except as to Costs: And it is hereby declared, That Clause 1 of the Charter-parties imposed on the Respondents an obligation to load full cargoes of wheat in bulk subject to an unfettered option, exercisable at their will, to load full or part cargoes of flour and/or barley instead, and that the Charterers were under no obligation to exercise any of such option: And it is hereby further declared, That "weather working days" in Clause 15 of the Charter-parties meaning "days of 24 hours on which weather permits working", Saturdays must be counted in the computation of lay-days:

And it is further ordered, That the Appellants do pay, or cause to be paid, to the said Respondents three-quarters of the Costs incurred by them in respect of the said Appeals to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Viscount Radcliffe

My Lords,

1

The three consolidated appeals upon which we are now to give judgment arise out of a strike at the Port of Vancouver, British Columbia, which prevented any loading work being done at five out of the seven grain elevators at that port between the night of 16th/17th February, 1953, when the strike began, and the 17th May, 1953, when the strike came to an end. The dispute to which they relate is between shipowners, who are claiming demurrage, and the Ministry of Agriculture, Fisheries and Food, who were the charterers of the three ships concerned in the appeal.

2

There were originally five separate actions by five different owners involving five ships. These ships were themselves selected by agreement as offering test cases upon which rights and liabilities affecting numerous other ships could be determined. Of these five all questions relating to two, the Agistino Bertani and the Moderator are now at rest. The present appeals do not relate to them. What we have before us are three ships, the Queen City, the Riverton and the Cape Rodney, all of whom are the subject of substantial demurrage claims in respect of the detention at Vancouver until after the elevator strike was over.

3

The demurrage claims as put forward in the shipowners' actions raised a number of issues both of law and of fact, which have been dealt with in the massive and luminous judgment delivered by McNair, J. at the trial in the High Court. The upshot of his decision was to dismiss the claims for demurrage in all cases but to allow to the charterers on counterclaim certain claims, not of substantial amounts, for dispatch money. His judgment was taken to the Court of Appeal, and after what was evidently a far-ranging argument the shipowners' appeals were dismissed, the charterers' freedom from demurrage and their title to dispatch money being affirmed. This dispute now reaches your Lordships' House, but in a form which has been refined by the course of the earlier proceedings. There are now only two issues, both, I think, issues of law, which survive for determination: one is concerned with the right of a charterer to adhere to what I will call his preferred cargo under a charterparty which admits of several kinds of cargo when circumstances at the port hold up the loading of that which he prefers to ship, and the other concerns the method and principle of computing lay time when the phrase "weather working days" is used as the measure of the time allowance. I do not put forward these descriptions as adequate or precise for the purpose of analysing the arguments which have been before us, but in fact it is not possible to reach precision until I have said something about the relevant clauses of the charter-parties and the facts upon which they bore. I have no doubt that each issue is of some general importance and deserves some care in presentation.

4

A great many of the facts that were originally in controversy are now either the subject of unchallenged findings or are immaterial to the particular point of construction upon which all your Lordships, I believe, are satisfied that the Appellants' case on the first issue must founder. I shall, therefore, confine myself to a bare statement of the facts that are needed for the elucidation of that point and, to do so, it will be convenient to take only the case of the Queen City, the first of the three ships to arrive at Vancouver, and, having dealt with that, to ask whether there is any effective difference between her case and that of the two other ships.

5

The Queen City, then, was chartered by the Respondents on 12th November, 1952, ordered to Vancouver on 12th February, 1953, and gave notice of readiness to load on 18th February.

6

She was chartered on the terms of the Pacific Coast grain charter. There are six clauses of her charterparty which are essential to the understanding of the present issue, and I set them out below in exactly the same form as that employed in the judgment of McNair, J., that is, I leave out words that I regard as immaterial and I indicate in italics those words which were inserted by the parties in typescript in the printed form:—

Clause 1 … vessel … shall proceed in ballast and, upon arrival, be made ready, and shall receive on board at Tacoma and / or Seattle or Portland. Oregon, Vancouver, B.C., or New Westminster, or Victoria, B.C., or other loading places, as hereinafter provided … a full and complete cargo … of wheat in bulk, any bags and/or bagging required for safe stowage to be supplied and paid for by the shipowners, and/or barley in bulk, and/or flour in sacks as below which the said parties of the second part (—viz., the charterers—) bind themselves shall be shipped, and being so loaded, shall therewith proceed to one safe port in the United Kingdom … or on the Continent between Antwerp and Hamburg … or as near thereunto as she may safely get, and there deliver the same and be paid freight as hereinafter provided: 80/-per ton wheatCharterer has the option of loading up to one-third cargo of barley in bulk, in which case the above rate of freight to be increased by 2/6per ton on the quantity of barley loaded. Charterer has the option of loading up to one-third cargo of flour in bags at 10/- … per ton extra over the rate for wheat, on the quantity of flour loaded, if loaded at British Columbia, and 12/6per...

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