A/S Gunnstein & Company K/S v Jensen (Alfa Nord)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 23 June 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0623-5 |
| Date | 23 June 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0623-5
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal from Order of Mr. Justice Kerr.
Lord Justice Roskill
and
Lord Justice Cumming-Bruce
Mr. BRUCE REYNOLDS (instructed by Messrs Sinclair, Roche & Temperley) appeared on behalf of the Appellants (Plaintiffs).
Mr. NICHOLAS MERRIMAN (instructed by Messrs William A. Crump & Son) appeared on behalf of the Respondents (Defendants).
This appeal comes before this Court, in somewhat unusual circumstances, from an Order made by Mr. Justice Kerr on the 7th December last, when he granted the Defendants a stay, under Section 1 of the Arbitration Act, 1975, of an action brought by the Plaintiffs by writ dated the 11th June, 1976, claiming the balance of lump-sum freight of 72,000 United States dollars, that balance amounting at the time the writ was issued to 12,500 dollars.
I can take the history of the matter quite shortly. The Plaintiffs are Norwegian shipowners and own a Norwegian ship, the "Alfa Nord". They chartered her under a charterparty in the Gencon form to a Mr. Jensen of Copenhagen. There were thus Norwegian shipowners on the one hand and a Danish charterer on the other, and the charterparty was in the Gencon form. The charterparty was for a lump-sum freight, free in and out fully stowed, the freight to be fully prepaid on signing bills of lading. The loading ports were Dar Es Salaam and Basrah, and the discharging port was Jeddah. Apparently delays arose in the course of the voyage. The full facts are set out in an affidavit sworn by Mr. Henthorne of Messrs William A. Crump, the Defendants' Solicitors, and as a result the Defendants withheld the balance of freight amounting to $12,500, claiming to offset a much larger amount which they claimed as damages for alleged failure to prosecute the voyage with reasonable despatch.
The learned Judge, we are told, did not give any reasons for his decision, and I readily understand why. Well before the matter came before him, this Court had given its decision in The Brede, (1974) Queen's Bench, 233; but it had also given its decision in Nova (Jersey) Knit Limited. v. Kammgarn, reported in 1976 2 Lloyds Law Reports, 155. The learned Judge thereforefound himself impelled, on the strength of the authority of Russell v. Pellegrini, (1856) 6 Ellis & Blackburn, 1020, which this Court in its judgment in the Nova Knit case had revived from obscurity to hold that the Defendants were entitled to a stay notwithstanding the earlier decision of this Court in The Brede. That was conceded very properly by Mr. Reynolds for the Plaintiffs before Mr. Justice Kerr; but it was then known that the Aries case and the Nova Knit case were both awaiting judgment in the House of Lords, and accordingly the learned Judge gave leave to appeal against his decision notwithstanding the concessions that were made.
Now, the Aries case (now reported (1977) I Weekly Law Reports, 185) was decided by their Lordships on the 27th January, 1977, when they upheld the earlier decision of this Court in The Brede. Their Lordships' judgments in the Nova Knit case were given on the 16th February, 1977, when (Lord Salmon dissenting) they reversed the judgment of this Court. Accordingly, the foundation upon which the concession had been properly made before Mr. Justice Kerr disappeared; and Mr. Reynolds, on behalf of the shipowners, has now come to this Court and asked us to reverse Mr. Justice Kerr's decision on the ground that the combined effect of the Aries and The Brede which it approved, on the one hand, and Nova Knit, on the other, compels the result that there cannot be any set-off against the Plaintiffs' claim for the balance of freight of the Defendants' unliquidated claim for damages for failure to proceed with reasonable despatch. Mr. Reynolds invited us to say that Russell v. Pellegrini...
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