Tankexpress A/S v Compagnie FinanciŠre Belge Des Petroles S.A.

JurisdictionEngland & Wales
JudgeLord Porter,Lord Wright,Lord Uthwatt,Lord du Parcq
Judgment Date09 November 1948
Judgment citation (vLex)[1948] UKHL J1109-1
Date09 November 1948
CourtHouse of Lords
A/S Tankexpress
and
Compagnie Financière Belge Des Petroles S.A.

[1948] UKHL J1109-1

Lord Porter

Lord Wright

Lord Uthwatt

Lord du Parcq

Lord Morton of Henryton

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause A/S Tankexpress v. Compagnie Financiere Belge des Petroles S.A., that the Committee had heard Counsel, as well on Tuesday the 8th, as on Wednesday the 9th, Friday the 11th, Monday the 14th, Tuesday the 15th, Wednesday the 16th and Thursday the 17th, days of June last, upon the Petition and Appeal of A/S Tankexpress, of Suhmsgate 18, Oslo, in the Kingdom of Norway, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 1st of April, 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Compagnie Financiere Beige des Petroles S.A., lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 1st day of April, 1947, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Porter

My Lords,

1

This appeal comes to your Lordships from the Court of Appeal consisting of two Lords Justices, who differed as to the result to be arrived at, and consequently the finding of the learned Judge who tried the case was confirmed. The dispute concerns the right of the owners of the Norwegian Tank Vessel "Petrofina" to withdraw that vessel from the service of the respondents from and after the 30th September, 1939.

2

By a charter party dated the 18th March, 1937, the owners let that vessel to the respondents for 7 years. Under that charter party the rate of hire was 5s. 6d. per ton on the vessel's dead weight capacity commencing on and from the day of her delivery and at and after the same rate for any part of a month, and was to be paid in cash monthly in advance in London. In default of such payment the owners were to have the faculty of withdrawing the vessel from the service of the charterers.

3

By Clause 13 of that charter party it was provided that the whole reach of the vessel's holds, decks and burthen should be at the charterers' disposal.

4

By Clause 14 the captain was to prosecute his voyages with the utmost despatch.

5

By Clause 16 he was to be under the orders and direction of the charterers, as regards employment, agency or other arrangements.

6

By Clause 27 in the event of deficiency of men or stores, repairs, breakdown of machinery or boilers (whether partial or otherwise), collision or'stranding, or damage preventing the efficient working of the vessel for more than 48 hours, or breach of orders or neglect of duty on the part of the captain causing delay, the payment of hire was to cease from the commencement of such loss of time until the vessel should again be in an efficient state to resume her service.

7

Clause 34 contained the usual exceptions in favour of the owners but ended by providing that nothing in it should limit the charterers' right to suspension of hire for any period the vessel might not be at the charterers' disposal for a period exceeding 48 hours. The charter party also contained an arbitration clause and incorporated the Chamber of Shipping War Clause and a special War Clause both of which made provision as to the mutual obligations of the parties in the event of war breaking out during the currency of the charter, but their contents are immaterial so far as this case is concerned and it is not necessary to set out their terms. Some dispute indeed arose when war broke out as to what those obligations were, but the arbitrator to whom that dispute was referred under the terms of the charter party, whilst recording its existence and its settlement, has not stated in what it consisted, and accordingly your Lordships, like the arbitrator, must regard the question as to who was right and who wrong in this dispute as irrelevant.

8

It appears, however, that on the 3rd September, 1939, the vessel was in the neighbourhood of Venezuela, that the dispute which took place between the owners and charterers was with regard to the voyage which the charterers then intended to make and that the owners declined to allow the vessel to be at the charterers' disposal until this dispute had been settled. Eventually however it was settled on the 25th September, 1939, at which time the vessel was lying in Guiria Roadstead in ballast, the captain having received instructions from his owners not to commence loading until instructed by them.

9

The settlement was effected by two telegrams both dated the 25th September—the first of which was sent by the owners to the charterers in the following terms:—

"Yours Mejlaender we awaiting your telegraphic confirmation direct that Petrofina not to be sent to belligerent ports without our consent stop further understood we cover kroner 4 1/2 million your account any delay caused at Venezuela not to be considered off hire stop we reserve right divert vessel safe ports if agreement discussed Copenhagen not reached telegraph".

10

The reply was in the following terms:—

"Confirm Petrofina not to be sent to belligerent ports without your consent stop other terms your cable all right stop please hurry despatch."

11

Thereupon the owners on the same date again telegraphed to the charterers "Yours to-day instructed master to commence loading", and followed this up with a telegram to the master running "Commence loading for Lisbon". Unfortunately that cable which was addressed to "Master Petrofina c/o Stanocoven Guiria" never reached the master, with the result that the ship was never placed at the charterers' disposal for loading.

12

The owners had been requested by the charterers on the 17th September to cable the captain c/o Stanocoven Caripito and did send one cable so addressed on the 19th, but all other cables were addressed to him c/o Stanocoven Guiria and with the exception of the cable of the 25th September reached him safely. That cable by some mistake was delivered to the charterers' agent at La Guaira who thought it referred to a vessel about to load at that port and awaited her arrival. The result was that the master was, so far as he knew, still under orders not to allow the charterers to load.

13

The vessel appears to have been delivered to the charterers on the 27th of the month. At any rate hire normally became due on the 27th of each month.

14

Accordingly as soon as the dispute had been settled the charterers despatched from Brussels to Hambro's Bank Ltd. a letter containing a cheque for £3,766 13s. 0d., being the agreed net amount due on the 27th September for the month's hire in advance, and by other letters informed the owners at Oslo and their brokers in Paris of the despatch of the cheque. In so doing they were acting in accordance with the procedure previously adopted in transmitting the hire. The letter, however, was not received by Hambro's Bank until the 3rd October, and meanwhile on the 29th the owners telegraphed to them in London, "Have you received Petrofina hire from Compagnie Financiere—please telegraph yes or no eventually stating amount".

15

To this telegram Hambro's Bank replied on the 30th "Yours yesterday cannot trace receipt of hire Petrofina". In fact the remittance was not received until the 3rd October owing to the delay in post caused by war conditions, and was then returned on the owners' instructions by the Bank to the charterers. Upon receiving this telegram the owners wired to the charterers "Accordance telegram received from Hambro's Bank to-day hire not received consequently consider charter party cancelled", and to the captain "c/o Stanocoven Guiria. Hire not paid stop loading await instructions acknowledge." This message was received by the master on the 30th September.

16

The charterers did not accept the owners' claim to cancel and replied by a telegram saying "Cannot understand your telegram payment hire having been made as usual according our letter 25th. Hold you responsible for all eventual damage".

17

In addition to the matters stated above, the arbitrator also found (i) that the practice between owners and charterers was for the latter to pay the hire on the 27th of each month, deducting from the hire any amount for time off hire during the currency of the previous month, (ii) that both parties were unaware that in consequence of the non-receipt of the telegram of the 25th September the master had not placed the vessel at the disposition of the charterers and (iii) that the accepted method between the parties during the currency of the charter with regard to the payment of hire had been for the charterers to make payment of hire in London at the office of Hambro's Bank by sending a cheque in favour of that Bank, drawn on the Italo-Belgian Bank of London, to be placed by them to the credit of the owners with the Kristiana Folkbank, Oslo, and the payment of hire had been regularly and properly paid in this way during the currency of the charter and had always been paid on its due date until this payment of the hire due on the 27th September.

18

On these facts and findings the Arbitrator, subject to a...

To continue reading

Request your trial
44 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT