Sennar, The (No. 2) (Merawi)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE KERR,SIR DENYS BUCKLEY |
| Judgment Date | 24 May 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0524-4 |
| Docket Number | 84/0213 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 1984 |
[1984] EWCA Civ J0524-4
Lord Justice Cumming-Bruce
Lord Justice Kerr
and
Sir Denys Buckley
84/0213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMIRALTY COURT)
(Mr. Justice Sheen)
Royal Courts of Justice
MR. STEVEN M. GEE (instructed by Messrs Holman Fenwick & Willan) appeared on behalf of the Appellants/Defendants.
MR. J. MANCE, QC. and MR. J. COOKE (instructed by Messrs Sinclair Roche & Temperley) appeared on behalf of the Respondents/ Plaintiffs.
I have had the advantage of reading the judgments about to be delivered by Lord Justice Kerr and Sir Denys Buckley. I agree with both judgments and move that the appeal be allowed and the action stayed.
The plaintiffs are the successors in title of a German company to whom I will refer as "GfG" and the defendants are Sudan Shipping Line Ltd., the national shipping line of the Sudan, to whom I will refer as "the shipowners". This is an appeal from a judgment of Mr. Justice Sheen given on 24th June 1983 in which he refused an application by the shipowners that the present action against them should be stayed. That judgment is reported as The "Sennar" (No.2)in (1983) 2 L1.Rep. 399. An earlier judgment also given by Mr. Justice Sheen on 2nd November 1982, in which he refused the shipowners' application for a stay on different grounds, is reported as " The "Sennar" (No.l) in (1983) 1 L1.Rep.295. There was no appeal from that judgment and it now only forms part of the long history of this litigation, first in the Dutch courts and now here. The facts arise in connection with a bill of lading covering a cargo carried in the "Sennar"; the Dutch proceedings were based on the arrest of a sister ship in the same ownership in Rotterdam; and the English proceedings are based on the arrest of yet another sister ship in Liverpool. Both the Dutch and the English proceedings arise out of the same facts, and the main issue on this appeal is whether the Dutch proceedings have given rise to an issue estoppel against GfG and, if so, whether the present proceedings should be stayed.
THE FACTS
The case has a long history. On 22nd June 1973 GfG agreed to buy from a Swiss company, to which I will refer as Pagco, 2,000 metric tons of Sudanese Groundnut Expellers c.i.f. Rotterdam, of which 1000 tons were to be shipped in July/August 1973. The seller to Pagco was evidently a Sudanese company called Malik Industrial Co. Ltd., to which I will refer as "Malik", and it appears that this contract also required shipment by the end of August 1973. The "Sennar" loaded groundnut expellers in Port Sudan for Rotterdam at the end of August and the beginning of September 1973, and various bills of lading were issued. The bill of lading which has given rise to the controversy was No. 7, covering just over 1000 tons of expellers, partly in bags and partly in bulk, which was issued to Malik and made the goods deliverable in Rotterdam to "order". This bill of lading was dated 30th August 1973 and was evidently signed by an employee of the shipowners. However, a statement subsequently made by the Master shows that, although the full cargo appears to have been alongside on the quay, only a small quantity of this bill of lading was in fact shipped before the end of August and that completion of the shipment did not take place until 6th September 1973. The bill of lading was accordingly antedated by reference to the time when all the goods covered by it were in fact on board. It was issued in Port Sudan and bore a stamp that it was subject to the Sudan Carriage of Goods by Sea Ordinance. It also contained two relevant printed clauses:
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"25. Law of application. Insofar as anything has not been dealt with by the provisions of this Bill of Lading the Law of the Sudan shall apply.
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27. Jurisdiction. All actions under this contract of carriage shall be brought before the Court of Khartoum or Port Sudan and no other Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto".
The market price of these goods fell sharply after August 1973 and remained below the relevant contract prices at all material times, but it is unnecessary to go into the figures. The antedated bill of lading was then passed up a line of "string" contracts, from Malik to Pagco to GfG and by them to their buyers, an English company called European Grain & Shipping Ltd. GfG accepted the bill of lading and paid Pagco the contract price on about 2nd October 1973, and it is clear that they would not have done so if the bill of lading had not been dated in August. The shipowners contend that any cause of action by GfG against them accrued at that time, since the market price had fallen and GfG had suffered a loss at that point by taking up the bill of lading. GfG deny this for the reasons explained below. They negotiated the bill of lading to European Grain a few days later, and the "Sennar" discharged her cargo in Rotterdam on about 13th October 1973 where it remained in the custody of the shipowners' agents, F.A. Voigt & Co. ("Voigt"). By then, or shortly thereafter, European Grain evidently discovered that the bill of lading had been antedated and claimed to reject it and the goods. The "Sennar" was then arrested but released on an undertaking that security would be given. There then followed GAFTA arbitration proceedings between the four parties in the string, and on 8th February 1974 the various awards were published confirming that bill of lading No. 7 had been antedated and upholding the claim of rejection by each buyer against his seller. GfG contend that it was only at that point that their cause of action against the shipowners accrued, because under the terms of their contract of purchase from Pagco they were obliged to go to arbitration before they could claim rejection and recover the price paid. However, in this they were unfortunately unsuccessful. When they made their claim against Pagco in June 1974 on the basis of the GAFTA award, Pagco failed to pay and went into liquidation. The Dutch proceeedings were then instituted in January 1975. However, before dealing with these in some detail, as is necessary, it should be mentioned that in October 1975 GfG presented the bill of lading to Voigt and obtained delivery of the goods on payment of the substantial storage charges which had by then accrued. The shipowners contend that GfG thereby affirmed the contract contained in the bill of lading so as to be bound by this contract in any event: see Brandt v. Liverpool, Brazil Riverplate Steam Navigation Co. Ltd. (1924) 1 KB 575 (C.A.). As explained hereafter, this issue was not argued before us, and GfG maintained that by taking delivery of the goods and then selling them at a considerable loss, quite apart from having to pay the storage charges, they were merely mitigating the loss which they had suffered due to their acceptance of the bill of lading in ignorance of the fact that it had been antedated.
THE DUTCH PROCEEDINGS
These began on 16th January 1975 and only ended with the decision of the Dutch Court of Appeal on 21st March 1980. In connection with the question if issue estoppel it is necessary to review their history in some detail.
On 16th January 1975 GfG instituted proceedings against the defendants in the District Court of Rotterdam on the basis of the arrest of the "El Gezira", a sister ship of the "Sennar". The writ and subsequent statement of claim gave a summary of the history which I have already set out. The act of antedating the bill of lading was described as a "forgery" and as an "unlawful act", and it was contended that by accepting it GfG had suffered loss "as a result of deception by a false statement". It was agreed before us that "unlawful" act is equivalent to a tort in English law, and it was accordingly common ground that the Dutch proceedings, in the same way as the English proceedings to which I come later, had been wholly framed in tort. It is also important to note that it was common ground that the Dutch courts had jurisdiction to entertain the action. Although we were not referred to the relevant provisions, it was common ground that the Dutch courts derived their jurisdiction from the International Convention Relating to the Arrest of Sea-going Ships, signed in Brussels on 10th May 1952. The corresponding jurisdictional provisions enacted in this country in the light of this Convention were in section 1(1) of the Administration of Justice Act 1956 when these proceedings were instituted and are now set out in section 20(2) of the Supreme Court Act 1981. The admitted jurisdiction of the Dutch courts was evidently based on the same ground as the basis of jurisdiction in rem which Mr. Justice Sheen accepted in The "Sennar" (No.1)when the "Merawi", another sister ship, was subsequently arrested in Liverpool, viz. the Dutch equivalent of section 1(1)(h) of the 1956 Act, which confers jurisdiction in respect of "any claim arising out of any agreement relating to the carriage of goods in a ship….". It is therefore important to bear in mind throughout that the Dutch proceedings were in tort and that under our rules of private international law the Dutch courts had jurisdiction, with the result that any judgment of the Dutch courts would qualify for recognition and, if necessary, enforcement in this country.
I then turn to the history of the Dutch proceedings. The "El Gezira" was released...
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