Société Franco-Tunisienne D'Armement-Tunis v Government of Ceylon
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE PILCHER,LORD JUSTICE MORRIS |
| Judgment Date | 29 May 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0529-2 |
| Court | Court of Appeal |
| Date | 29 May 1959 |
[1959] EWCA Civ J0529-2
Lord Justice Morris and
Mr. Justice Pilcher
In The Supreme Court of Judicature
Court of Appeal
Mr. MICHAEL KERR and Mr. M. J. MUSTIL (instructed by Messrs. Holman, Fenwick & Willan) appeared for the Appellants, Applicants below.
Mr. RALPH MILLNER (instructed by Messrs. T. L., Wilson & Co.) appeared for the Respondents, Respondents below)
: This is an appeal from a judgment of Mr. Justice McNair on the hearing of a motion to set aside or remit an award. The matter arises out of an arbitration between the Socioto Eranco Tunisionno d'Armomont - Tunis, who are the owners of the steamship "Massalia", and the Government of Coylon, who were the charterers of that ship.
The disputes arose under a charterparty datod 16th July, 1956, which was in the Goncon form. Clause 1 of the charterparty, so far as is material, roads as follows: "It is this day mutually agreed" between the managing owners of the steamship "Massalia" "(five holds, eleven winches)"… "carryying about 5,000 tons of dead-weight carge… and expected ready to load under this charter about 2nd./10th. August, 1956" and the Government of Coylon as charterers. "The said vessel shall proceed to Antwerp and Bordeaux, two loading ports, in this rotation (one good and safe place at each port) … and there load a part cargo of 4,450/4,700 long tons… of flour in bags, quantity in owners' option". When loaded "the vessel shall proceed to Colombo (to good and safe berth) as ordered on signing bills of lading… and there deliver the cargo on being paid freight on not weight as follows: 115s. per ton of 2,240 1bs. Freight to be paid in pounds sterling, 90 per cent. on signing bills of lading and balance after right and true delivery of not delivered weight".
In reading that clause, I have endeavoured to omit words immaterial for the present purpose. Clause 6 of the charter refers to Clause 16, which is in these terms: "Cargo to be loaded and stowod, free of expense to the vessel, at the rate of 1,000 tons of 2,240 1bs. per weather working day, Sundays and holidays excepted, and to be discharged at receivers' risk and expense at the rate of 750 tons of 2,240 1bs. per weather working day, Sundays and holidays excepted".
Then Clause 6 reads: "Time to commence at 2 p. m. if notice of readiness to discharge is given before noon, and at 8 a. m. next working day if notice given during office hours after noon. Time lost in waiting for borth to count as discharging time".
Clause 7 roads: "Any demurrage at the rato of £250 per day or pro rata for any part of a day comparable day by day, at ports of loading and discharge Owners to pay chartorors' despatch money for all working time saved at half demurrage rato at loading and discharging ports".
Clause 25 reads: "Charterers' agents and stovederes at loading and discharging ports at customary rates. At discharging port, vessel to be consigned to Ceylon Shipping Linos, Ltd. as agents to attend to all ship's business".
Then Clause 27 has an arbitration clause in these words: "All disputes from time to time arising out of this contract shall, unless the parties agree forthwith on a single arbitrator, be referred to the final arbitrament of two arbitrators carrying on business in London who shall be members of the Baltic and engaged in the shipping: and/or grain trades, one to be appointed by each of the parties, with power to such arbitrators to appoint an umpire. Any claim must be made in writing and claimant's arbitrator appointed within six months of final discharge and where this provision is not complied with the claim shall be deemed to be waived and absolutely barred. No award shall be questioned or invalidated on the ground that any of the arbitrators is not qualified as above, unless objection to his acting is taken before the award is made."
Then Clause 30 is in these terms: "Owners to have the liberty to complete cargo 'en route' with other goods. If shipped in same holds as flour goods, those goods to be well separatod of flour carge to avoid mixing or damage to the said cargo. Cost of separation boing for owners' account and owners to be also responsible of damage, if any, done to the flour cargo." I think those are the material provisions for present purposes.
In August, 1956, the ship loaded at Antwerp and also at Borddeaux for the charterers' account. Some 4,338 long tons of flour in bags were loaded. That cargo was distributed over the five holds of the ship.
Certain disputos arose in regard to demurrage both in reference to Antwerp and in referenco to Bordeaux. When the vessel was at Port Said on her way to Colombo, on the 1st and 2nd Octobor, 1956, the ownors under the right given to thorn by Clause 30, which I have road, loaded certain other cargo for Colombo. The nature of that cargo is immaterial but the quantity was something over 400 tons. That cargo was overstowed in three out of the five holds.
The vessel arrived at Colombo on 18th October, 1956, at 06 hours 12 min. The Master gave a notice of readiness to discharge 9 a. m. But apparently there was no berth available, and the vessel was kept waiting for a berth until 24th October. On that day she berthod. Discharging then bogan. That was at 17 hrs. 30 min. on 24th October. The discharging was completed on the 3rd November at 0300 hrs.
There were certain other disputes between the partios additional to those that I have mentioned concerning demurrage at Antwerp and Bordeaux, and these other disputes included a dispute in regard to the liability of the charterers for demurrage at Colombo. The charterers decided to cover themselves in regard to the claim which they asserted by withholding freight.
In January, 1957, the disputes between the parties were referred to arbitration pursuant to Clause 27 of the charterparty. Mr. Owen Ellis was appointed as arbitrator on behalf of the owners, Mr. Malcolm Browne was appointed by the charterers as arbitrator.
One question that has arisen prominently is as to what were the disputes which were referred to the arbitrament of those two gontlomon. We have not before us many contemporary documents, but it seems to me that the extent and the nature of the disputes submittod to the arbitrators can be ascertained by looking at certain documents to which I will refer.
The arbitrators could not agree. Accordingly an umpire was appointed. Mr. John Chesterman was appointed as umpire and all the matters in dispute were referred to him.
In accordance with the practice so often followed, the arbitrators appeared before the umpire and acted as advocates for the owners and charterers respectively. They appeared before the umpire on the 11th December, 1958. I think there is no doubt that they presented arguments and each arbitrator left with the umpire a document which was by way of being a statement of the case of the party represented by the arbitrator.
Those documents record the submissions made by the respective parties in regard to each item of the claims that were advanced. I have said that the discharging of the cargo at Colombo was completed on 3rd November, 1956. On that date there came into existence a time sheet prepared, presumably, by the Ceylon Shipping Lines, Ltd. as agents for the charterers. That time sheet is before us, and it shows that it was recorded that the vessel was to discharge 750 tons per weather working day, Sundays and holidays excepted. The consignees were referred to as "D.F.S." Which, we are told, were initials denoting the Director of Food Supplies of the Government of Ceylon. This time sheet records certain facts which appear to be beyond controversy. It states that the vessel arrived on the 18th October, 1956, at 06 hrs. 12 min.: it states that the vessel berthed on 24th October, 1956: it states that notice was delivered (which must mean notice of readiness to discharge) at 09 hrs. on the 18th October. Then follow the words: "Time to count from 18th October, 1956, 1400 hrs." Then it is recorded that the discharging started on 24th October at 17 hrs. 30 min. and was completed on 3rd November at 0300 hrs.
There was a calculation on the document as to the laydays and the calculation records that the laydays would amount to 5 days 18 hrs, 47 min. The demurrage rate is set down as being £250 per day. Then certain times are recorded and according to these the laytirne expired on 30th October, that is to say, the period of 5 days 18 hrs. 47 min. The additional time to 0300 hrs. to 3rd Novmber amounted in total to 3 days 9 Mrs. and 37 min. I may say that in reference to some of the early days, notably the 19th, 20th, 22nd. and 23rd October, days when the vessel was in fact not at her berth, the time set down was 9 hrs. 36 min., and we have been told that that time was computed as being two-fifths of 24 hours, the two-fifths being taken apparently because only two out of the five holds were free of some overstowed cargo.
(Adjourned for lunch)
It will be convenient at this stage to refer to a document which same into existence in May, 1957. It was a letter written by the Food Commissioner, presumably on behalf of the charterers, to the owners and it gave some information which had apparently been asked for. That document records that the charterers acknowledged that they were liable for freight to the amount of £24,943 18s. 1d. and that they added to that figure the sum of £829 6s. 10d. being demurrage incurred by the charterers at Colombo calculated in reference to 3 clays 7 hrs. 30 min. That made a total of £25,773 4s. 11d. It was there recorded that that was the amount for which the charterers said that they were liable. As against that they set out that they had paid freight to an...
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