Renton (G H) & Company Ltd v Palmyra Trading Corporation of Panama (Caspiana)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE HODSON |
| Judgment Date | 20 December 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1220-3 |
| Date | 20 December 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J1220-3
Lord Justice Singleton.
Lord Justice Jenkins and
Lord Justice Hodson.
In The Supreme Court of Judicature
Court of Appeal
MR EUSTACE W. ROSKILL, Q.C. and MR ANDREW BATESON (instructed by Messrs Richards Butler & Co.) appeared on behalf of the Appellants (Defendants).
MR A. A. MOOATTA, Q.C. and MR R. A. Mac ORINDLE (instructed by Messrs William A. Crump & Son) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal from a Judgment of Mr Justice McNair given on the 7th October. The case is one of importance, and, we were given to understand, one of some urgency; so that it is better that we should give judgment forthwith.
The Defendants are a Company carrying on business in the State of Panama, and they are the owners of the steamship "Caspiana". The Plaintiffs were indorses of four bills of lading relating to the shipment of timber at ports in British Columbia for delivery at London or, in one case, at Hull. The bills of lading provided for carriage of the goods to London (or Hull) "or so near thereunto as the vessel may safely get". The dispute between the parties arises upon one of the clauses in print on the bills of lading. It is clause 14, and the ports of it with which we are directly concerned are sub-clauses (c) and (f). Sub-clause (c) (so far as is material) reads: "Should it appear that …. labour troubles, strikes …. would prevent the the vessel from …. reaching or entering the port of discharge or there discharging in the usual manner and leaving again, all of which safely and without delay, the Master may discharge the cargo at port of loading or any other safe and convenient port"; and sub-clause (f): "The discharge of any cargo under the provisions of this clause shall be deemed duo fulfillment of the contract". The cargo covered by two bills of lading was taken on board the "Caspiana" at Vancouver, and in the other two cases at Nanaimo, and the vessel left the last-named port on the 3rd September, 1954.
The history is shown in the agreed Statement of Facts, from which I road paragraphs 3 to 9: "3. At the time of sailing from Nanaimo aforesaid, labour relations were tranquil at United Kingdom ports generally, including London and Hull. Vessels were being loaded and discharged at all those ports in the normal way, unhindered by any strikes or stoppage of work by dock labour. There was at that time no special indication that any suchstrike or stoppage might shortly arise.
"4. The vessel passed through the Panama Canal on 22nd September, 1954, and proceeded upon her voyage across the Atlantic On 18th September, 1954, following a dispute between certain London dockers and their employers, the work of unloading the motor vessel 'Haparangi' at the Royal Albort Docks was stopped. On 30th September, 1954, workmen in the Royal Group of London Docks struck in sympathy with the workmen involved in the above dispute. During the ensuing days this strike spread to other London Docks, and by 13th October, 1954, the Port of London was virtually at a standstill. At this date there was no similar strike at other United Kingdom Ports, though at all major United Kingdom Ports (including Hull) and at some Continental Ports dockers while freely unloading cargo originally destined to the Port in question were refusing to unload cargo diverted to that port from London. Representatives of the London strikers were urging dockers at other ports to strike in their support; the men at other ports had not at this stage either gone on strike or agreed to do so but were refusing to handle diverted cargoes.
"5. On 12th October a meeting of London dockers voted to continue the strike. The vessel was due to arrive off Dungeness at 4 p.m. on 13th October, 1954, and to dock in London on 14th October, The Defendants by cable dispatched at 1 p.m. on 12th October ordered the vessel to proceed to Antwerp to discharge the London cargo there. On that afternoon they learnt that the dockers there would not unload cargo diverted from London and at 5.30 p.m. they cabled the Master not to proceed to Antwerp. They made enquiries as to what other port would discharge diverted cargo but it was not till about noon on 13th October that they learnt it would be possible to discharge the London cargo at Hamburg and at 12.15 p.m. the Defendants by radio cablegram instructed the Master to proceed to Hamburg and there discharge the London cargo. The vessel proceeded accordingly. The Defendantsdid not consult the Plaintiffs before giving the said order but as soon as the arrangements for Hamburg were made the Defendants instructed the ship's agents to notify the receivers of cargo and by letter dated 13th October, 1954, the Defendants' agents informed the Plaintiffs that they were diverting the vessel to Hamburg to discharge the London portion of her cargo, relying upon the rights allegedly conferred upon them by clause 14 (c) of the said Bills of Lading. The vessel arrived at Hamburg on 15th October, 1954, and began to discharge the cargo originally destined for London on 16th October, 1954.
"6. The stowage of the cargo was such that it was not practical to begin the discharge of the cargo destined for Hull and Immingham without first discharging the greater part of the cargo destined for London. On 19th October, 1954, the Defendants' agents sent a circular letter to the Plaintiffs and other receivers of the cargo originally destined for Hull and Immingham in these terms: 'We beg to advise you that this vessel is discharging her London cargo in Hamburg and is expected to leave Hamburg on the 2lst instant. As you are aware, efforts are being made to spread the dock strike to Hull and Immingham, If this should eventuate, the carriers have asked us to inform you they may elect to exercise their rights under clause 14 of the Bill of Lading and discharge Hull and Immingham cargo at Hamburg' The Plaintiffs replied on 21st October, 1954: 'With reference to your letter of 19th instant addressed to our Hull office and notifying them of owners intentions in the event of the strike spreading to Hull and Immingham, as it has done, to divert the above vessel from Hull to Hamburg, we give you formal notice we do not admit the owners rights so to divert the vessel. The acceptance or reception of goods at any port other than the port named in our Bill of Lading and the payment of any freight or charges in respect of our goods shall not be doomed to be a waiver of any of our rights whatsoever but shall be entirely without prejudice and in reserve of all our rights to recoverfrom the owners any damage we may sustain as a result of their action'. The discharge of the cargo originally destined for London was not in fact completed until 26th October, 1954. This wad not due to any voluntary delay in unloading on part of Defendants.
"7. While the vessel was discharging cargo at Hamburg as aforesaid, the strike in the London Docks continued, By October 20th, 1954, the strike had spread to certain other ports and on that date the strike affected Hull. On 25th October, 1954j; "the dockers at both Hull and London still being on strike and there being no information as to the probable duration of the strike the Defendants' agents by letter dated 25th October, 1954, informed the Plaintiffs that the Hull cargo would be discharged at Hamburg. The discharge of this cargo was begun on 26th October and completed at 6.45 a.m. on 1st, November, 1954.
"8. On 30th October, 1954, dockers at the eight United Kingdom ports then affected by the strike, namely. London, Liverpool, Birkenhead, Garston, Manchester, Hull, Southampton and Rochester, voted to return to work on let November, 1954. On 1st November, 1954, work accordingly resumed at these ports. On the same day a further, though smaller, strike broke out in London, but by 4th November, 1954, there was a full resumption of work in London. After completing discharge of the Hull cargo at 6.45 a.m. on 1st November the vessel sailed for Immingham where she arrived on 2nd November to discharge the cargo for that port.
"9. After the discharge in Hamburg as aforesaid of the said quantities of timber destined for London and Hull respectively, the Defendants took no steps to forward or transship the same to the relevant port of destination nor have they paid the cost of such transshipment or forwarding, or of storage at Hamburg during the period between discharge and such transshipment or forwarding. The cost of such forwarding and storage has been or will be borne by the Plaintiffs. The Plaintiffs have, expressly without prejudice and under reserve of all rights against theDefendants in respect of the above matters, paid the freight due under each of the said Bills of Lading".
The Plaintiffs brought this action against the Defendants claiming damages in respect of the expense to which they had boon put by the Defendants' failure to deliver the goods at the port of London (or Hull). Mr Justice McNair held that the Plaintiffs were entitled to recover and gave judgment for them, with damages to be assessed. The Defendants appeal.
Before dealing with the questions of law which arise, I must road paragraphs 11 and 12 of the agreed Statement of Facts: "11. If the Defendants were entitled to discharge the cargo originally destined for London and/or Hull at some other port it is not alleged that Hamburg was not a safe port, nor that it was not a port at which it was convenient to the Defendants to discharge. It was, however, a port which was not convenient to the Plaintiffs to the extent that they had bought the goods under contracts made upon 'c.i.f. London' and 'c.i.f. Hull' terms respectively, that it was their intention and that of their sellers (the shippers) to have the goods discharged at London and Hull only, that...
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