The Antonis P. Lemos
Jurisdiction | England & Wales |
Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE PARKER |
Judgment Date | 14 February 1984 |
Judgment citation (vLex) | [1984] EWCA Civ J0214-4 |
Docket Number | 84/0059 |
Court | Court of Appeal (Civil Division) |
Date | 14 February 1984 |
[1984] EWCA Civ J0214-4
Lord Justice Cumming-Bruce
and
Lord Justice Parker
84/0059
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. BERNARD A. RIX, QC. and MR. PETER A. HAYWARD (instructed by Messrs Holman, Fenwick & Willan) appeared on behalf of the Appellants/Plaintiffs.
MR. MARK O. SAVILLE, QC. and MR. JONATHAN N.C. GAISMAN (instructed by Messrs Richards Butler & Co.) appeared on behalf of the Respondents/Defendants.
I hand down the judgment of Lord Justice Parker, with which I agree.
By a Charterparty dated 16th October 1981 between the appellants as charterers and Sammisa Co. Ltd. of Seoul, described as owners, the appellants chartered the vessel "ANTONIS P. LEMOS", owned by the respondents, for one time chartered trip. The Charterparty provided that the charterers were to have liberty to sub-let the vessel but were to advise owners of any sub-letting.
At that time the vessel was on time charter to Sammisa Co. Ltd., under a charterparty dated 22nd February 1980 between Sammisa and a company called Containertank Corporation, who were described therein as disponent owners. That charterparty too contained a liberty to sub-let with an obligation to advise of any sub-letting.
All that is known of the relationship between Containertank and the respondents is that the respondents had by agreement entrusted the operation of the vessel to them.
Shortly before the Charterparty of 16th October, namely on 21st September, the appellants had entered into a voyage charterparty with Agri Industries for the carriage of a cargo of 25,000 metric tons of heavy grains and/or sorghums and/or soybeans 10% more or less in the appellants' option from America to one or two safe berths/anchorages Alexandria or in Charterer's option one or two safe berths/anchorages Port Said. By such charterparty the appellants guaranteed the vessel's maximum arrival draught not to exceed 32 feet in salt water. The charterparty did not name the vessel but provided that the performing vessel was to be declared "at least 10 days prior to ETR load port".
The vessel "ANTONIS P. LEMOS" was duly declared under the voyage charter and on 20th and 21st October loaded a cargo at Houston. She arrived in Alexandria on 11th November but her draught then exceeded 32 feet. As a result she was unable to berth until lightened and delay was thereby caused.
As a result of the breach of the guarantee of maximum draught, the appellants had to pay the costs of lightening and incurred certain other expenses and loss. In order to recover such losses they issued on 20th May 1983 a writ in rem in the Admiralty Court against the respondents, at the same time obtaining a warrant for the arrest of the vessel pursuant to which she was duly arrested.
The endorsement on the writ is in the following terms:
"The Plaintiffs, as sub-charterers of the Defendants' ship ANTONIS P LEMOS under a time charter dated 16 October 1981 made between Sammisa Co. Ltd. as Owners and the Plaintiffs as charterers, claim damages for the loss suffered by them by reason of the negligence of the Defendants, their servants or agents in causing permitting or suffering the said ship to load a quantity of corn at Houston, Texas, USA on 20 and 21 October 1981 such that her draft on arrival at Alexandria, Egypt on 11 November 1981 exceeded 32 feet rendering her unable to berth without lightening."
It will be observed that the claim is a straight-forward claim in tort and that the negligence alleged relates solely to the loading into the vessel of such a quantity of corn that her draught on arrival exceeded 32 feet.
By notice of motion dated 24th May 1983, the respondents sought an order that the writ and warrant of arrest be set aside and the vessel released from arrest on the ground that the High Court had no jurisdiction in respect of the appellants' claim and/or that such claim did not fall within Section 20(2) of the Supreme Court Act 1981.
The respondents' motion was heard by Mr. Justice Sheen on 26th May 1983. He made the order sought, giving his reasons for so doing on 7th June 1983. The appellants now appeal by leave of the judge.
Subject to a new point raised by leave in this court, with which I shall deal briefly at the end of this judgment, the sole question for determination is whether the appellants' claim falls within s.20(2) (h) of the Supreme Court Act 1981(the Act).
Section 20(1) of the Act, so far as presently material provides:
"The Admiralty jurisdiction of the High Court shall be as follows, that is to say—
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2).
(b)…..
(c) any other Admiralty jurisdiction which it had immediately before the commencement of the Act
(d)….."
By Section 20(2) the questions and claims referred to in subsection 1(a) include:
"(g) any claim for loss of or damage to goods carried in a ship.
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship."
The judge held that in order to fall within that paragraph the claim must have its origin in an agreement between the plaintiffs and the defendants and that, since there was no such agreement the court had no jurisdiction. The appellants submit that the judge erred in law and that it is sufficient to bring a claim within paragraph (h) of the subsection if either:
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(i) there is a general factual connection between the claim and an agreement of the relevant kind, or
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(ii) such an agreement is a material fact for the purposes of pleading the claim, or
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(iii) such an agreement is relevant to establish one or more of the three components of a claim in negligence, namely, duty of care, breach of that duty and resulting damage, or
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(iv) there is a commercial nexus between the claim and such an agreement.
The respondents submit that the judge was right and indeed, albeit faintly, that claims within sub-paragraph (h) are limited to claims in contract between plaintiff and defendant.
Central to the appellants argument was the proposition that Part 1 of the Administration of Justice Act 1956, and in particular Section 1(1), was based on and intended to give effect to The International Convention Relating to the Arrest of Seagoing Ships signed in Brussels on 10th May 1952, and thus that it and its successor, subsection (2) of Section 20 of the Act, should be given a liberal and broad rather than a restricted construction, and so construed, if reasonably possible, to conform to the language of the convention.
That proposition is well established by authority: see e.g. Stag Line Ltd. v. Foscolo Mango & Co. [1932] AC. 328 at 350 and The Eschershein [1976] WLR 430(H.L.) at 435–6.
There were here unquestionably a number of agreements falling within sub-paragraph (h) of Section 20. Unless, therefore, that sub-paragraph must be read as referring only to agreements between the plaintiff and the defendant, the only question for consideration is whether the appellants' claim is a claim arising out of any of those agreements.
The sub-paragraph contains...
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