Rendal (A/S) v Arcos Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 1937 |
| Date | 19 July 1937 |
| Court | House of Lords |
House of Lords
Lords Atkin, Thankerton, Macmillan, Wright, and Maugham
A/s Rendal v. Arcos Limited
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Sharpe v. Foy 19 L. T. Rep. 541 L. Rep. 4 Ch. App. 35
Chaplin v. Cave 42 L. T. Rep. 730 15 Ch. Div. 639
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James Morrison and Co. Limited v. Shaw Savill and Albion Company LimitedDID=ASPMELR 13 Asp. Mar. Law Cas. 504 115 L. T. Rep. 508 (1916) 2 K. B. 783
Hain Steamship Company Limited v. Tate and Lyle LimitedDID=ASPM 19 Asp. Mar. Law Cas. 62 155 L. T. Rep. 177
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Lucas v. NovosilieskiENR 1795, 1 Esp. 296
Hetherington v. KempENR 1815, 4 Camp. 193
Macgregor v. KeilyENR 1849, 3 Ex. 794
Charter-party — Claim for damages for delay caused to ship by ice — Notice of claim
Decision of the Court of Appeal reversed
126 ASPINALL'S MARITIME LAW CASES. H. of L.] A/s Rendal v. Arcos Limited. [H. of L. House of Lords. June 14, 15, 17, and July 19, 1937. (Before Lords Aram, Thankerton, Macmillan, Wright, and Maugham.) A/s Rendal v. Arcos Limited. (a) ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Charter-party-Claim for damages for delay caused to skip by ice-Notice of claim- Separate claim for damage caused to ship- Whether sufficient evidence that notice to an agent is notice to the principal-Meaning of " notice of any claim." (a) Reported by Edward J. M. Chaplim, Esq., Barrister-at-Law. A charter-party expressed to he between the appellants, as owners of the Norwegian steamship R., and the respondents, Arcos Limited of London, as charterers, provided by clause 24 : " Notice of any claim under this charter or under any bill of lading given hereunder must be given within twelve months of the date of the vessel's arrival at final port of discharge, otherwise all claims shall be deemed to be waived." The charter-party also contained an ice clause. Upon arrival at the port of discharge the owners' agents gave notice to the Russian Trade Delegation in Norway, who were acting as agents for the respondents' principals in Moscow, of a claim for damages in respect of delay in the ice, and they made a further claim for the cost of repairing the damage sustained by the steamer. Held, (1) that" notice of any claim " in clause 24 of the charter-party did not mean a precisely formulated claim with full details, but it must be such a notice as would enable the party to whom it was given to take steps to meet the claim by preparing and obtaining appropriate evidence for that purpose; (2) that there being a general claim for damages for breach of the ice clause, and a further claim for damage to the ship herself, clause 24 required a separate notice of the further claim; (8) that in the circumstances notice of claim was given to the agents of the charterers and that those agents had authority to receive it on behalf of their principals. Decision of the Court of Appeal reversed. Appeal from the decision of the Court of Appeal, The plaintiffs, as Norwegian steamship owners, claimed compensation for damage sustained by their steamship Rendal during a voyage from Leningrad to Sarpsborg (Norway) with a cargo of pulpwood, and for breach of a chattel party expressed to be made in December, 1980, between A/s Rendal and the defendants, Arcos Limited, of Bush House, Aldwych, W.C. 2, as charterers. The charter-party was in the common form described as the Chamber of Shipping Baltic Wood Charter, 1926. Goddard, J. having given judgment for 2495/. for the plaintiffs, the Court of Appeal reversed that decision. The facts are fully set out in the opinion of Lord Wright. The plaintiffs appealed. C. T. Le ??esne, K.C., Cyril Miller, and Richard Hurst, for the appellants. D. N. Pritt, K.C. and Harry Atkins, tor the respondents. The House took time for consideration. Lord Atkin-I have had the opportunity of reading the opinions which are about to be delivered by my noble and learned friends, Lord Wright and Lord Maugham. The facts and the law are so fully considered in those opinions, and I am in such complete agreement with them, that although we ASPINALL'S MARITIME LAW CASES. 127 H. of L.] A/s Rendal v. Arcos Limited. [H. of L. are differing from the Court of Appeal, I am satisfied with saying nothing more than that I agree with the opinions about to be delivered. Lord Macmillan.-I also have had the advantage of perusing in print the opinions about to be read by my noble and learned friends and I agree with them entirely. Lord Atkin.-I am asked by my noble and learned friend Lord Thankerton to say that he also agrees. Lord Wright.-This appeal raises questions of some general importance on the construction of a common clause in charter-parties, and also on what is sufficient evidence to found the inference that notice to an agent is notice to the principal. The respondents also claimed in the alternative to uphold the judgment of the Court of Appeal as to some port of the damage. The questions arise on a charter-party dated the 3rd December, 1930, expressed to be between the -appellants as owners of the Nor wegian steamship Rendal, and the respondents Arcos, Limited (for Exportles, Moscow), of London, us charterers. The charter-party, which was in the common form described as the Chamber of Shipping Baltic Wood Charter, 1920, was for the carriage of a cargo of pulpwood from Leningrad to Sarpsborg (Norway). It is not necessary to refer to more than a few of the clauses of the contract. By clause 2 the master or owners were to telegraph to the shippers of the cargo (described as Exportles, Moscow) giving at least seven days' notice of the probable date of arrival at loading port. For delay in loading or discharging demurrage was payable at 30l. a day. There was the usual cesser clause and the usual lien clause for freight, dead freight, demurrage, lighterage at port of discharge and average. Clause 35 was the clause known as the Ice Clause, under which the charterers were to supply the steamer with ice-breaker assistance if required to enable her to enter and (or) leave the port of loading free of all expenses to owners. Clause 24 must be set out in full. It runs : " Notice of any claim under this charter or under any bill of lading given hereunder must be given within twelve months of the date of the vessel's arrival at final port of discharge, otherwise all claims shall be deemed to be waived. " The vessel loaded her cargo and arrived at Sarpsborg on the 27th February, 1931. Thereupon the owners' agents, the Nordisk Skibsrederforening (referred to hereafter as the Nordisk), gave notice to the U.S.S.R. or Russian Trade Delegation in Norway (referred to as the delegation) who were acting, at least in some respects, as agents at Oslo for Exportles, the principals of the respondents in regard to the charter, that they claimed 1532l. for thirty-nine days one-and-a-half hours loss of time at 30/. a day and extra coal consumption 200 tons and 100l. for extra call at Reval to replenish the bunkers, which had been depleted by the delay in the ice. At that time the true effect of the Ice Clause hud not been decided by the courts but was in dispute. It was agreed between Nordisk and the delegation that the latter should deposit with a -Norwegian bank in joint names 1532/., the amount claimed, to abide the decision of the Norwegian court in a suit between the appellants and the delegation brought to decide the question. This action was finally decided by the Norwegian Supreme Court on the 9lh February, 1933, in the -appellants' favour. But the appellants also claimed as further elements of damage for the same breach - of the Ice Clause the cost of repairing the damage Alleged to have been sustained by the steamer through being delayed in the ice for want of proper ice-breaker assistance. There was delay in commencing the action for these claims until the construction of the Ice Clause had been decided, as it was, by the House of Lords, in Ugleexport Charkow v. Owners of Steamship Anastasia (151 L. T. Rep. 261). This decision was in favour of the shipowners, and so far as principle goes, covered the claims of the appellants in this case in respect of ship damage. The main defence raised in this action, apart from questions of amount, was that notice was not given of the claim in accordance with the requirements of clause 24. Goddard, J., who tried the case in the Commercial Court, held that this objection failed, but the Court of Appeal, reversing the learned judge, have held that it ought to prevail. It will accordingly be necessary to examine the matter in some detail. The counter-objections of the respondents as to part of the damage I shall consider later. The issues principally debated on the appeal are two. There is first the dispute as to the true construction of clause 24. Then there is the question whether notice, if proper notice was given, was given to the proper parties. It might appear strange that in an ordinary shipping transaction of this nature there should be any difficulty on a simple question of fact such as this latter question. But the respondents have called no evidence and given no discovery as to documents or correspondence or interviews between the three parties concerned on their side, the Trade Delegation, the respondents, and Exportles. The matter is left to be decided on the communications' between Nordisk, the Trade Delegation and the respondents. It is, therefore, necessary to examine this scanty material to sec if it is sufficient to establish the appellants' case. The onus is on the appellants to show compliance with clause 24, but if they show a prim - facie case there is no rebutting evidence to displace it. It is...
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