Sucre Export SA v Northern River Shipping Ltd ('the Sormovskiy 3068') [QBD (Admiralty)]
| Jurisdiction | England & Wales |
| Judge | Clarke J |
| Judgment Date | 25 April 1994 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 25 April 1994 |
Queen's Bench Division (Admiralty Court)
Clarke J.
Christopher C Russell (instructed by Turner & Co) for the plaintiffs.
Steven Berry (instructed by Lawrence Graham) for the defendants.
The following cases were referred to in the judgment:
Antclizo, The (No. 2)UNK [1992] 1 Ll Rep 558.
Asiatic Prince, The (1901) 108 F 287.
Barclays Bank Ltd v C & E CommrsUNK [1963] 1 Ll Rep 81.
Bourne & Ors v GatliffeENR (1841) 3 Man & G 643,133 ER 1298; (1844) 7 Man & G 850, 135 ER 345.
British Shipowners' Co Ltd v Grimond & Anor (1876) 3 Sess Cas 4th 968.
Carlberg v Wemyss Coal Co LtdENR 1915 SC 616.
Delfini, TheUNK [1988] 2 Ll Rep 599.
Emilie Marie, The (1875) 44 LJ Adm 9.
Erichsen & Ors v Barkworth & OrsENR (1858) 3 H & N 894; 157 ER 730.
Finlay& Ors v Liverpool and Great Western Steamship Co Ltd (1870) 23 LT 251.
Future Express, TheUNK [1992] 2 Ll Rep 79; [1993] 2 Ll Rep 542 (CA).
Glyn Mills Currie & Co v East and West India Dock CoELR (1882) 7 App Cas 591.
Grange & Co v TaylorUNK (1904) 9 Com Cas 223.
Houda, TheUNK [1993] 1 Ll Rep 333.
Holt & Holt Ltd v Union Castle Steamship Co LtdENR [1901] SC 38.
Jaederen, TheELR [1892] P 351.
London Joint Stock Bank Ltd v British Amsterdam Maritime Agency LtdUNK (1910) 16 Com Cas 102.
Petrocochino & Ors v BottELR (1874) LR 9 CP 355.
Postlethwaite v FreelandELR (1880) 5 App Cas 599.
Ropner & Co v Stoate Hosegood & CoUNK (1905) 10 Com Cas 73.
Sagona, TheUNK [1984] 1 Ll Rep 194.
Stettin, TheELR (1889) 14 PD 142.
Sze Hai Tong Bank Ltd v Rambler Cycle Co LtdELR [1959] AC 576.
Vladimir Vaslyayev, The (unreported, Supreme Court of Cyprus).
Shipping — Bill of lading — Cargo of sugar shipped from Antwerp to Vyborg — Discharge of vessel began although original bills of lading not presented to master — Cargo owners became aware and ordered discharge to stop — Most of cargo already discharged — Balance eventually discharged with cargo owners' consent — Whether breach of contract or conversion by owners of vessel — Whether master entitled to deliver cargo other than in return for original bill of lading — Whether discharge ordered in accordance with law, custom and practice of port — Whether discharge on instructions of agent of plaintiffs.
This was an action by the plaintiffs as cargo owners against the defendants as owners of the vessel “Sormovskiy” on board which the cargo of sugar was shipped. The claim was for damages for breach of contract and conversion in respect of the discharge of the major part of the cargo without the consent of the cargo owners. The issue was whether the master was entitled to deliver the cargo in the absence of an original bill of lading.
A bill of lading dated 22 May 1992 was signed by the master of the “Sormovskiy 3068' evidencing the shipment of 60,000 bags of sugar at Antwerp for carriage to St Petersburg. The bill of lading was consigned to order, the notify address being that of Firma BMH in Moscow. The bill of lading expressly provided that freight was to be payable and “all terms and conditions” were to be as per the charterparty dated 8 May 1992. The charterparty referred to in the bill of lading was between “GSS” as owners and the defendants as charterers on the Sugar Charter-Party 1969 form (1977 revision) on FIOST terms governed by English law. A second charterparty between GSS and the plaintiffs was in the same terms.
The plaintiffs bought 3,000 metric tons of sugar which were shipped on board the Sormovskiy. The plaintiffs sold the same quantity to “F”, but title was not to pass until F had paid in full. F entered into a contract of sale with BMH, as a result of which their address was stated on the bill of lading. BMH paid F for the sugar, but F did not pay the plaintiffs. All parties agreed on 26 May that Vyborg be substituted for St Petersburg as the port of discharge. BMH had contracted on 22 May with the Commercial Sea Port at Vyborg (“the CSP”) for the discharge of goods from vessels. On 26 May the plaintiffs paid for the documents and the original bills of lading were delivered to them indorsed in blank. They then became the owners of the sugar and entitled to possession of it subject to the rights of the defendants as shipowners. F, who had not paid the plaintiffs, did not acquire title so could not pass good title to BMH. The vessel arrived at Vyborg on 27 May. On 29 May discharge of the vessel began without the original bills of lading or the knowledge or consent of the plaintiffs. The CSP carried out the discharge at the request of and in accordance with its contract with BMH. On 3 June the plaintiffs learned of the discharge and gave instruction that it should stop. By that time 2,070 of the 3,000 metric tons had been discharged. After negotiations, substitute bills of lading were issued, presented to the master and the remaining cargo was discharged between 3 and 6 July with the plaintiffs” consent.
The plaintiffs brought an action against the defendant shipowners for damages for loss resulting from the delivery of 2,070 metric tons of sugar without the presentation of an original bill of lading, that loss having been caused by breach of contract or conversion by the defendants.
Held, giving judgment for the plaintiffs:
1. In the absence of an express rule in the contract, the master or shipowner was entitled to deliver the cargo only to the holder of the original bill of lading who presented it to him. Where the original bill of lading had been lost or stolen, a term might be implied into the contract to enable the master to deliver cargo in its absence on proof to his reasonable satisfaction both that the person seeking delivery of the goods was entitled to possession and of what had become of the bills of lading.
2. Where the master or shipowner delivered the cargo in breach of contract without presentation of an original bill of lading the person entitled to possession could only recover substantial damages if he proved that he had suffered loss and damage as a result.
3. The defendants were prima facie liable to the plaintiffs because they had delivered goods to the CSP without any explanation as to why the CSP was entitled to possession or what had become of the bills of lading, unless there was either a rule of law or a custom in the strict sense in Vyborg that the master had to deliver the cargo to the CSP as the agent of the plaintiffs without insisting on an original bill of lading.
4. On the evidence the defendants did not comply with their obligations to deliver to the parties entitled to possession under the bill of lading, nor did they deliver in accordance with the law, practice and custom of the port of Vyborg.
5. Under English law the CSP had neither actual nor ostensible authority to act as agents for the plaintiffs. Further, the CSP were not the agent of the plaintiffs according to the local law of Vyborg.
6. Accordingly the defendants were in breach of the contract of carriage in delivering the cargo to the CSP without the production of an original bill of lading, for which breach the plaintiffs were entitled to damages.
Clarke J: The plaintiffs, Sucre Export SA, claim against the defendants, Northern Shipping Ltd as owners of the vessel SORMOVSKIY 3068. They claim damages for breach of contract and conversion as the holders of a bill of lading dated 22 May 1992. That was a bill of lading signed by the master of the SORMOVSKIY 3068 which evidenced the shipment of 60,000 bags of sugar at Antwerp for carriage to St Petersburg. The shippers were named as Beghin Say. The consignees were not named but the bill of lading was consigned to order and the address of Firma BMH (“BMH”) in Moscow was stated in the bill of lading as the notify address. The bill of lading expressly provided that freight was to be payable and “all terms and conditions” were to be as per charterparty dated 8 May 1992.
Three original bills of lading were issued each of which contained the following standard clause on the front:
“IN WITNESS whereof the master or agent of the said Vessel has signed the number of Bills of Lading indicated below all of this tenor and date any one of which being accomplished the others shall be void.”
The bill of lading also included a clause paramount and this further clause printed on the back:
“All the terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, are herewith incorporated. The Carrier shall in no case be responsible for loss of or damage to cargo arisen prior to loading or after discharging.”
It is common ground that the charterparty referred to in the bill of lading was the charterparty dated 8 May 1992 between GSS Georg Schumacher OHG of Bremen (“GSS”) as owners and the defendants as charterers. The charterparty was initially of a vessel to be nominated and was in the event of the SORMOVSKIY 3068 which was chartered by GSS from the plaintiffs as owners under a charterparty dated 15 May 1992. I will call the charterparty between GSS and the plaintiffs “the charter” and the charterparty between the defendants and GSS “the head charter”.
Both charters were on the Sugar Charter-Party 1969 form as revised in 1977 and were for a voyage from one safe berth Antwerp to one safe berth St Petersburg where by cl. 9 the owners were to deliver the cargo “as ordered” They were on FIOST terms and were expressly governed by English law. Clause 46 of each provided:
“In the event that original Bill of Lading are not at discharge port in time for vessel's discharge, then Owners to agree to discharge of the cargo against production of a bank Guarantee.”
I will return to some of the other clauses of the charter below.
On 13 May Beghin Say sold 3,000 metric tons of sugar to the plaintiffs on terms FOB Antwerp payment to be cash against documents with title not to pass until payment. On 18 May the plaintiffs sold the same quantity of sugar to Forfar Investments Ltd...
To continue reading
Request your trial
-
Tradigrain S.A. v King Diamond Shipping S.A. (Spiros C)
...v Syrian Petroleum Co Ltd (“The Varenna”)ELR [1984] QB 599. Sucre Export SA v Northern River Shipping Ltd (“The Sormovskiy 3068”) [1994] CLC 433 [1994] CLC 433. Tagart, Beaton & Co v James Fisher & SonsELR [1903] 1 KB 391. Thomas (T W) & Co Ltd v Portsea Steamship Co LtdELR [1912] AC 1. Til......
-
Motis Exports Ltd v Dampskibsselskabet Af 1912 Akieselskab
...Corp v I & D Oil Carriers Ltd (“The Houda”)[1994] CLC 1037applied;Sucre Export SA v Northern River Shipping Ltd (“The Sormovskiy 3068”)[1994] CLC 433considered.) 2. The delivery of goods to a person who presented a forged bill of lading was an intentional act inconsistent with the true owne......
-
P & O Nedlloyd BV v Utaniko Ltd; Dampskibsselskabet AF, 1912 Aktieselskab v East West Corporation [QBD (Comm)]
...(UK) Ltd[1966] 3 HKLR 453. Sewell v BurdickELR(1884) 10 App Cas 74. Sucre Export SA v Northern River Shipping Ltd (The Sormovskiy 3068)[1994] CLC 433. Sze Hai Tong Bank v Rambler Cycle CoELR[1959] AC Tallinna Laevauhisus A/S v Estonian State Steamship LineUNK(1946) 80 Ll Rep 99. Tasman Pulp......
-
Standard Chartered Bank v Dorchester Lng (2) Ltd and Another
...[2005] 2 CLC 911. Sewell v Burdick (The Zoe)ELR (1884) 10 App Cas 74. Sucre Export SA v Northern River Shipping Ltd (The Sormovskiy 3068) [1994] CLC 433. Shipping — Bills of lading — Title to sue — Letters of credit — Sale of gasoil — Seller presented documents under letter of credit includ......