S.A. Maritime et Commerciale v Anglo-Iranian Oil Company (Driade; Nayade., Nayade; Driade.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 15 February 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0215-1 |
| Court | Court of Appeal |
| Date | 15 February 1954 |
[1954] EWCA Civ J0215-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Birkett
Lord Justice Romer
MR. J. MEGAW, Q.C., and MR. MICHAEL KERR (instructed by Messrs. William A. Crump & Sons) appeared as Counsel on behalf of the Appellants (Defendants).
MR. EUSTACE ROSKILL, Q. C., and MR, B. GCODEN (instructed by Messrs, Stokes & Metcalfe) appeared as Counsel on behalf of the Respondents (Plaintiffs).
LORD JUSTICE SOMERVELL: We need not trouble you Mr. Roskill.
This is an appeal from a decision of Mr. Justice Devlin on a point of law arising on a Special Case decided by an arbitrator. It arose under a charter party under which the owners agreed with the charterers, being the owners of a ship called the "Driade", to charter that ship to the Anglo-Iranian Oil Company Limited. The freight was to be "139/9dper ton of 20 cwt. of oil intake quantity". The ship was a tanker. This was neither a voyage charter in the ordinary sense nor was it a time charter in the ordinary sense, but it was on these terms: "This charter party is to remain in force for as many consecutive voyages as vessel can perform on the basis of giving notice of readiness to load on the last voyage on or before 30th September, 1952", Readiness to load in respect of the first voyage was 1st September, 1951.
The clause on which the controversy arises is clause 38 though I think I should read clause 37 also. Clause 37 says: "Owners have the liberty of effecting periodical drydocking 6/9 months after vessel was last drydocked and owners undertake to give charterers reasonable notice of such intention". Clause 38 says: "Owners have the liberty of substituting a coiled vessel of similar size and position at any time before or during this charter party and owners undertake to give charterers reasonable notice of such intention". It will be seen, therefore, that the general layout of the contract was that subject to contingencies this vessel during those 12 months was to perform as many voyages as she could.
The charter party is dated 27th March, 1951, which was some six monthsbefore the first voyage began. On the 7th August, 1951, the agents for the owners wrote to the charterers: "Driade" or Substitute Charter Party dated 27th March, 1951. The 'Nayade' will be performing this Charter Party and this vessel, as far as we can see, is a much more suitable vessel or your purposes, in that she is younger and .is now drydocking and repairing at La Spezia in order to present herself in absolutely first class condition for the first voyage under this Charter Party. It is calculated that the 'Nayade' will leave La Spezia about the 20th August and E.T.A. Persian Gulf will be about the 5th/10th September. That went on for some time. On the 5th August, 1952, advice had been given of the drydocking of the "Nayade" and the letter says, "In the circumstances owners wish us to propose substitution of the Nayade with the Driade" — that goes back to the original vessel named in the charter party — "whichunder clause 38 will assure you of uninterrupted service under the present consecutive voyage charter".
The charterers objected to that on the ground that under this clause there should be only one substitution. There is what I will call a subsidiary point which I at one time thought might be conclusive. I will mention it though it is not necessary for me to deal with it. It was argued below by Sir Robert Aske that on the basis for which the charterer's contend, that the clause only allows one substitute, there was here only one substitute because there were only two vessels involved, the original "Driade" named in the charter party and the "Nayadc". As was pointed out, however, the original substitution was indefinite in period and would have been effective if the "Nayadc" had done all the voyages in the twelve months. There had therefore to be a further notice to replace the "Nayade" by the "Driadc"in the 12 months. If there had been a substitution which was expressly for one voyage or for one month only different considerations might have arisen. I therefore do not think there was clearly only one substitution.
I will proceed, as did the learned Judge, on the basis that the point to be decided is whether this clause provides for only one substitution or whether it provides for...
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Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd
...should be treated as inoperative or surplus: see, for example, S.A.Maritime et Commerciale of Geneva v Anglo Iranian Oil Co Limited [1954] 1WLR 492. 11 On at least one occasion during his submissions, Mr Livesey QC, on behalf of Fitzpatrick, pointed out that the contract did not say in clea......