Sociedad Financiera de Bienes Raices S.A. v Agrimpex Hungarian Trading Company for Agricultural Products; The Aello
| Jurisdiction | England & Wales |
| Judge | Lord Radcliffe,Lord Cohen,Lord Keith of Avonholm,Lord Jenkins,Lord Morris of Borth-y-Gest |
| Judgment Date | 02 June 1960 |
| Judgment citation (vLex) | [1960] UKHL J0602-1 |
| Date | 02 June 1960 |
| Court | House of Lords |
[1960] UKHL J0602-1
Lord Radcliffe
Lord Cohen
Lord Keith of Avonholm
Lord Jenkins
Lord Morris of Borth-y-Gest
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Sociedad Financiera de Bienes Raices S.A. against Agrimpex Hungarian Trading Company for Agricultural Products, et è contra, that the Committee had heard Counsel, as well on Monday the 29th day of February last, as on Tuesday the 1st, Wednesday the 2d, Thursday the 3d, Monday the 7th, Tuesday the 8th, Wednesday the 9th and Thursday the 10th, days of March last, upon the Petition and Appeal of Sociedad Financiera de Bienes Raices S.A. of Panama City, in the Republic of Panama, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 27th of June 1958, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Agrimpex Hungarian Trading Company for Agricultural Products, of Nador-u 22, Budapest V, Hungary, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 27th of June 1958, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Cross Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Agrimpex Hungarian Trading Company for Agricultural Products; and also upon the printed Case of Sociedad Financiera de Bienes Raices S.A., lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 27th day of June 1958 complained of in the said Original and Cross Appeals, be, and the same is hereby, Affirmed, and that the said Original and Cross Appeals be, and the same are hereby, dismissed this House.
My Lords,
The appeal and cross-appeal in this case relate to small sums of money in themselves, but the issues they raise are of considerable general importance and are not at all easy of solution. The main point to be decided on the appeal is at what date the Appellants' ship the "Aello" became an "arrived ship" in the Port of Buenos Aires on a voyage to River Plate ports during the months of September/November, 1954, that date determining the start of her lay-days for loading cargo in the port. The cross-appeal, on the other hand, turns on the issue whether, if she did not become an arrived ship on the date claimed by the Appellants, the 12th October, 1954, the Respondents incurred liability as charterers for the voyage to pay damages in respect of the detention of the ship in the circumstances which I will later narrate.
Both these questions involve consideration of certain earlier decisions either of this House or of the Court of Appeal. Those decisions are well known and of long standing. It is not my intention in anything that I shall say to depart from the principles there established: nor, I am sure, is that the intention of any other of your Lordships. But I am bound to say that after listening to the careful and sustained argument that we heard from Counsel on both sides I have been left with the conviction that it is not as easy as I could wish to say what those principles are when they have to be applied to the incidents of the present case; and, moreover, I have found very considerable difficulties in reconciling all that has been said in their formulation, either in different judgments on the same case or in different decisions in different cases. The unfortunate situation that I describe is not altogether a novelty in this tangled branch of commercial law.
I will set out the relevant facts as shortly as I can. By a charterparty dated 24th August, 1954, the "Aello" was chartered by the Respondents from the Appellants to load grain "at one or two safe loading ports or places in the River Parana not higher than San Lorenzo … quantity at Charterers' option, but not more than the Steamer … can safely carry over Martin Garcia Bar … and the balance of the cargo in the Port of Buenos Aires or Eva Peron (La Plata) or Montevideo." The charterparty was in the "Centrocon" form, subject to considerable variations. There was a stipulated rate of loading at so many tons per day, with exceptions, and a fixed rate of demurrage at £200 per running day. Despatch rebate for all time saved in loading was at the rate of £100 per day.
The first port to which the "Aello" was ordered was Rosario on the River Parana. This river and the River Uruguay are the two main contributories whose confluence forms the River Plate. Rosario therefore lies inland, to the north-west of Buenos Aires itself. The "Aello" took on a part cargo of maize at Rosario, having obtained there free pratique in respect of health and quarantine and also police and customs clearance. This she was bound to do before any loading operations could be begun. On the 11th October she left Rosario for Buenos Aires to complete there the loading of her maize cargo, as the charterparty required. At 1.30 p.m. on the next day, the 12th October, she dropped anchor in the "Free Anchorage" of the Buenos Aires Roads and there remained until the 29th October waiting for the permission of the Port authority to proceed nearer to her eventual destination, a loading berth in the Inner Harbour. The clue to this case lies in an appreciation of the reasons why the "Aello" had to wait for this period at this anchorage and of the relationship of the anchorage to the Port of Buenos Aires as a whole. I must therefore deal with this matter in some detail.
The River Plate is the estuary of the two rivers, Parana and Uruguay, which meet a few miles north of Buenos Aires. It thus forms a very large expanse of fresh water of no great depth. On its south shore lies the Argentine port of La Plata: opposite to that, on the north shore, is the Uruguayan port of Colonia and on the same shore, near the mouth, Montevideo. At the western or inner end of the River Plate some 200 kilometers up from the mouth is the city and port of Buenos Aires, which itself grew up round the spot where the River Riachuelo runs into the River Plate.
The Inner Harbour of Buenos Aires consists of a long frontage of basins and docks, equipped with very large installations for warehousing and loading and unloading goods. The Nuevo Porte, at the north end of this harbour, has an outer wall or mole built in the river. Access from the River Plate is provided by two dredged channels, the North and South channels, which themselves join to form a single channel at a point 9 kilometers outwards from the Inner Harbour. This channel continues seaward and at a point in it between Kilometer 29 and Kilometer 37 there is stationed a hulk for the use of pilots in the open waters of the estuary. This is the point known as "Intersection", because it is in effect a cross-roads for the various channels in the River Plate. Along this strip of water between Kilometer 29 and Kilometer 37 are formed two anchorages where vessels lie upon entering Argentine territorial jurisdiction, one to the north being known as the "Zone for steamers awaiting orders" or the Free Anchorage, the other, to the south, "Zone for steamers awaiting sanitary visit". It is in the Free Anchorage, as I have said, that the "Aello" lay from the 12th to the 29th October, 1954. This part of the estuary is known generally as the Roads or the Outer Roads of Buenos Aires, and has a long-established connection with the port as a place of maritime commerce.
The purposes served by these two anchorages are various. The quarantine zone speaks for itself: a vessel whose first Argentine port is Buenos Aires or La Plata lies there until she obtains health clearance by receiving her free pratique. The Free Anchorage is primarily a waiting place serving these two ports on occasions when waiting is necessary. Vessels lying there are subject to customs and police clearance, are under the control of the pilotage authority and the maritime police and cannot proceed further into the port of destination until the Berthing Office of the Harbour Authority has designated a berth or place in the Inner Harbour (I speak of Buenos Aires), the designation constituting the necessary permit of entry to load or discharge. Apart from its use as a watting place, the Free Anchorage is also used by vessels who wish to lighten by off-loading there part of their cargoes of oil or coal; vessels bunker and take in stores there; and dangerous cargo, which is not allowed to be taken into the Inner Harbour, must be discharged into lighters at this point. On the other hand grain itself is not loaded in the anchorage.
A ship lying in the anchorage at the Roads pays anchorage dues to the Harbour Authority of the port to which she is bound: if merchandise is discharged there for the port or loaded from the port additional harbour dues are payable on the same tariff as would be applicable if the ship had entered and berthed in second tier. By Articles 1702 and 1703 of the Maritime and River Digest there is constituted a joint Port of...
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