Saudi Prince, The (No. 2) (Al Dhahran)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,LORD JUSTICE LLOYD,LORD JUSTICE STOCKER |
| Judgment Date | 14 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0514-4 |
| Docket Number | 87/0503 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1987 |
[1987] EWCA Civ J0514-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Lord Justice O'Connor
Lord Justice Lloyd
Lord Justice Stocker
87/0503
MR C. A. MACDONALD, instructed by Messrs Bentleys Stokes & Lowless, appeared for the Appellant (Defendant).
MR T. P. D. SALOMAN, instructed by Messrs Ingledew Brown Bennison & Garrett, appeared for the Respondents (Plaintiffs).
I will ask Lord Justice Lloyd to give the first judgment.
This is an appeal from a judgment of Mr Justice Bingham (as he then was) sitting in Admiralty given as long ago as 28th October 1985. The facts are so clearly set out in the judgment that I do not intend to repeat them. If this judgment is going to be reported—I do not suggest that it should be—I hope that Mr Justice Bingham's judgment will be reported alongside.
The claim arises out of the shipment of a consignment of ceramic tiles from Italy to Jeddah on board the defendants' vessel "Al Dhahran" under a bill of lading dated 10th July 1976. The tiles were packed in cartons and the cartons were loaded onto pallets. Upon discharge about 14,000—I am speaking in round figures—out of the 49,000 cartons loaded were found to be missing, and a further 7,800 cartons were severely damaged. The judge has found that most of the damage was caused by rough handling in the course of discharge, although some of the damage may also have been caused in the course of loading and stowage. There is no appeal against those particular findings.
The plaintiffs, as owners of the ceramic tiles, bring this claim against the owners of the Al Dhahran. The defendants rely on the terms of clauses 5 and 24 of the bill of lading, to which I shall return later, under which they say the loading, stowage and discharge of the cargo was to be carried out by the plaintiffs or their agents and not by the defendants or their agents. It is thus a typical "damage to cargo" case, the unusual feature being that the bill of lading is governed by Italian law. The reason why the claim is brought here is that the plaintiffs were able to arrest a sister vessel of the Al Dhahran. The owner of both vessels is a Mr Orri, a resident of Saudi Arabia, who, as the judge observed, is no stranger to our courts.
Yesterday when the appeal was called on for hearing Mr Macdonald, who appears for the defendants, found himself in an embarrassing position. He had no papers. His solicitors, Messrs Bentleys Stokes & Lowless, were not on the record. He applied for an adjournment. The explanation was simple. The defendants' original solicitors, Messrs Denby Lloyd & Neill, have come to grief. New solicitors were retained in July 1986. They lodged an incomplete bundle of documents, without any transcript of the evidence, in September 1986. They then applied in March 1987 to be taken off the record. Messrs Bentleys Stokes & Lowless were only retained on Friday of last week. Mr Macdonald is of course familiar with the case because he appeared at the trial. But however familiar he may be with the case he could not present the appeal without any papers. He explained that the papers were retained by Mr Orri's previous solicitors. On that ground we agreed to an adjournment until today so as to give Mr Macdonald and those instructing him the opportunity to obtain the papers. That has now been done and Mr Macdonald has presented the case for the appellants today, saying everything that could be said in support of the appeal with all his usual skill and economy. In addition he has put before us a skeleton argument which is a model of its kind.
There were three main issues to be determined by the judge: the first was whether clauses 5 and 24 are void by virtue of Article III rule 8 of the Hague Rules to which the bill of lading is subject; the second was whether clauses 5 and 24 are void or ineffective by virtue of Article 1341 of the Italian Civil Code; and the third was whether the stevedores appointed by the owners at Jeddah, Orri Navigation Lines, another name under which Mr Orri carries on business, were incompetent. The judge decided all three issues in favour of the plaintiffs and awarded them, as a result, the sum of 402,207 Saudi rials.
Of the three issues the first two depend on Italian law. The third issue was a pure question of fact. There was evidence on which the judge could conclude, as I myself would have concluded, that the stevedores were incompetent, since they attempted to discharge palleted goods by means of hooks. Since the goods were fragile, the operation was bound to end in disaster, which it did. True it is that Mr Colin Papworth of Messrs Perfect Lambert, who gave evidence on the point, did not say in terms that the stevedores were incompetent. But that was a question for the judge rather than for the witness.
In my view the only proper inference which could be drawn from Mr Papworth's report, dated 10th September 1984, as well as from his evidence, was that the stevedores were incompetent. What made them incompetent was the total absence of forklift trucks to handle the pallets. If they had no forklift trucks they were not competent to perform the task which they had in hand. I can see no ground upon which this court could interfere with the finding of fact made by the judge that the stevedores were incompetent. That conclusion is really sufficient to dispose of this appeal in the respondents' favour, as Mr Macdonald accepted.
However, I should go on to consider the other two issues. They are, as I have mentioned, issues of Italian law. As such they are of course also issues of fact, but issues of fact of a rather different kind, as was demonstrated by this court in the case of Dalmia Dairy Industries Limited v National Bank of Pakistan (1978) 2 Ll.L.R. 223. That was a case where there was expert evidence of Indian law. I read a paragraph from the judgment of Lord Justice Megaw, who gave the judgment of the court. He said at page 286:
"The third matter is as to the extent to which the findings of the learned Judge upon the questions of Indian law (which of course in English law are questions of fact) are open to review in this Court. In general, though not in every respect, the learned Judge preferred the evidence of Mr. Sikri to that of Mr. Lall. In certain respects the learned Judge was critical of Mr. Lall's evidence and understandably Mr. Hobhouse laid much stress upon the learned judge's conclusions in this respect, which he rightly said were conclusions of fact. But a finding of fact on an issue of foreign law is a finding of fact of a very different character from the normal issue of fact: we would adopt as correct the observations of Mr. Justice Cairns (as he then was) in Parkasho v. Singh, [1968] P. 233 at p. 250, as to the position of an Appellate Court on a matter of this kind. An Appellate Court must not by uncritical acceptance of a trial Judge's conclusions of fact shirk its function of considering the evidence afresh and forming its own view of the cogency of the rival contentions, whilst of course always remembering that the trial Judge had the undoubted initial advantage of having seen and heard the witnesses."
I would follow the same approach in the present case.
When the case came before the judge, an unusual event occurred. Proofs of Italian law had been exchanged in the ordinary way before the hearing. The plaintiffs' expert was a Doctor Cigolini. He provided a very full proof of evidence, pro veritate, backed up by numerous Italian authorities. The defendants' expert was a Doctor Molisani. But on the first day of the trial Mr Macdonald sought leave to substitute a different expert. The defendants wished to drop Doctor Molisani and applied for leave to call Doctor Mordiglia, a very well-known and distinguished Italian maritime lawyer, in his place. The judge gave leave. But Doctor Mordiglia had very little opportunity to prepare himself for giving evidence, a disadvantage felt not only by him no doubt but also by the judge. However, they did the best they could.
I should now read clauses 5 and 24, on which the case turns. Clause 5 was as follows:
5. Commencement of Carrier's responsibility.
"Loading and stowage of the goods as well as all operations and relative handling in any port shall always be performed at the risk and expense of the goods, but by an enterprise selected by the Master under the express mandate conferred upon him henceforth by the Shippers.…The responsibilities of the Master and of the Carrier commence only after the goods have been...
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