The Aramis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BINGHAM,LORD JUSTICE STUART-SMITH,LORD JUSTICE O'CONNOR |
| Judgment Date | 17 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1117-5 |
| Docket Number | 88/0964 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 1988 |
[1988] EWCA Civ J1117-5
Lord Justice O'Connor
Lord Justice Bingham
Lord Justice Stuart-Smith
88/0964
1981 Folio No.508
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. CIVIL DIVISION.
ON APPEAL PROM THE HIGH COURT OP JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
MR JUSTICE EVANS
Royal Courts of Justice
MR NICHOLAS HAMBLEN (instructed by Messrs Clyde & Co.) appeared on behalf of the appellants.
MR ALAN PARDOE. Q.C. (instructed by Messrs William A. Crump) appeared on behalf of the respondents.
This appeal is from a decision of Evans J. reported at [1987] 2 Ll.L, 58. Applying Brandt V. Liverpool, Brazil and River Plate Steam Navigation Company Limited [1924] 1 K.B., 575 he found an implied contract between the owners of the ship ARAMIS and the holders and indorsees of two bills of lading signed by the ship's master. The main question arising on the appeal is whether the judge was right so to find. The shipowners as appellants contend that he was not. They also challenge the judge's approach, in principle, to damages. The cargo owners support the judge's reasoning and decision and, in respect of one of the bills of lading, contend that the holder is able to rely on section 1 of the Bills of Lading Act 1855.
The trial was conducted without oral evidence and without full discovery. The facts found are as a result (through no fault of the judge) somewhat sparse.
In April 1980 the. owners chartered the ship ARAMIS to S.A Orionbel N.V. for one time charter trip from South America to Europe for the carriage of grain and agricultural products. The charterparty was on the Baltime form. Under the charterparty the owners were to pay for provisions, crew, wages, stores and insurance. The charterers were to pay for bunkers, port charges and costs of discharge and delivery. The master was to be under the orders of the charterers as regards employment and the owners were not to be responsible for shortage of cargo.
In May 1980 the ship loaded 3,209 metric tonnes of linseed expellers at Necochea in Argentina. This cargo was stowed in two of the ship's holds. She then loaded over 4,000 metric tonnes of linseed expellers and a similar quantity of sunflower pellets at Buenos Aires, using all four holds. Now fully loaded, the ship sailed for Rouen where she discharged part of her cargo of linseed expellers and sunflower pellets. She then sailed to Rotterdam and speedily discharged the rest of her cargo of linseed expellers. Finally she sailed to Hamburg and discharged the remaining cargo of sunflower pellets. The ship was redelivered under the charterparty in early July 1980.
The appeal concerns two parcels of linseed expellers (amounting together to 459 metric tonnes), part of the much larger bulk cargo loaded on the ship at Necochea. One parcel was the subject of bill of lading No. 5 (204 tonnes), the other of bill of lading No.6 (255 tonnes). The shippers under each bill of lading were the same. Under each the goods were consigned "to order". Each showed the loading port as Necochea and the discharge port as Rotterdam. Each showed the freight as having already been paid. Each bore a printed statement that the weight of the goods shipped was unknown, but there was evidence that the quantity of 3,209 metric tonnes mentioned above was loaded at Necochea and it was not disputed that that bulk quantity included these parcels. Each bill was signed on behalf of the master. Each bill contained a large number of scarcely legible conditions including a clause paramount incorporating the Carriage of Goods by Sea Act 1924 and a submission by the shipowners to the jurisdiction of the English court. Our attention was particularly drawn to the following conditionson which reliance was placed:
"1. DEFINITION
The term 'Merchant' includes the Shipper, the Consignee, the Holder of the Bill of Lading and the Owner of the goods, who are jointly and severally liable.
20. FREIGHT
Freight is due upon the receipt of the goods by the carrier and shall be considered as fully earned upon shipment and non-returnable in any event, ship and or goods lost or not lost, or the voyage changed, broken up, frustrated or abandoned, whether the goods arrive in sound, damaged or in leaking condition.
In any event the shipper, receiver, consignee, holder of the bill of lading and owner of the cargo to be jointly and severally liable for freight, additionals and any charges due in connection with the performance in this contract of carriage.
The merchant shall be liable for expenses of fumigation and gathering and sorting loose cargo and of weighing on board and expenses incurred in repairing damage to and replacing of packing and for all expenses caused by extra handling of the cargo for any reason whatsoever. Furthermore any dues, duties, taxes and charges which under any denomination may be levied on any basis, such as amount of freight or cargo or tonnage of the vessel shall be paid by the merchant.
24. LOADING, DISCHARGING AND DELIVERY:
Of the cargo shall be arranged by the carrier's agent unless otherwise agreed…..
(b) The merchant shall pay the expenses of loading inclusive of the quay and port dues charged on the cargo as far as the ship's rail…..
(f) Regardless of any customs of the port to the contrary, delivery of the goods has to be taken at merchant's risk as soon as the ship is ready to discharge, wherever she may be lying as the goods come to hand, by day and by night, on Sundays and on holidays. The merchant shall bear the expenses of discharge incurred after the goods have passed the ship's rail. Provided, however, that the merchant according to the custom of the port is liable for the expenses, incurred prior to the goods having passed the ship's rail such custom has preference in favour of the carrier.
(g) All costs charged by stevedore on account of delay by weighing or measuring on deck to be for account of the merchant notwithstanding any custom of the port to the contrary always being subject to the carriers consent.
(h) The ship shall be at liberty to discharge on the quay, midstream or in open road, into lighters or otherwise. If the merchant for whatsoever reasons fail to take delivery of the goods in accordance with these rules or if they fail to do so promptly, the ship shall be at liberty to deposit the goods in lighters, warehouses, customhouses or the like at the risk and expense of the merchant.
(i) Notwithstanding these rights, carrier shall remain entitled to demurrage for the delay with which delivery has been taken of the goods in the amount of US $0.50 per Gross Register Ton for each day of 24 hours or pro-rata thereof.
Any expenses incurred after the goods have left the ship, in particular expenses for controlling, sorting as delivering as well as for transportation of the goods from the ship to the quay in the event of discharge midstream or in open roads, shall be borne by the merchant.
Furthermore the quay and port dues charged on the cargo shall be for merchant's account, the same as any additional expenses resulting from the ship or discharge being delayed, from the construction of the ship or the way of stowing.
In any event all carrier's obligations shall be deemed to be fulfilled upon delivery of the goods to the customs or other port authorities or any public or private companies.
Loading and discharge may commence without previous notice, all wharfage quay dues, carriage and cranage charges, tonage and shed dues, canal tolls and charges are to be paid by the merchant.
Discharging and loading expenses at the current rates to be paid by the merchant at Dutch ports whether taking deliver overside or on the quay…..
The carrier at all ports shall have the rights to discharge the goods to the quay and/or into shed and deliver them from there. All quay dues and discharging expenses at current rates to be paid by the merchant.
27. CHARGES
The merchant has to pay the expense of discharging the goods, and all expenses arising after their discharge. Also quay dues and apart from the costs of sorting, tallying, measuring, weighing, sampling, repairing and any other costs, charges, duties or stamps whatsoever, also the expenses for delay caused by anything delaying the discharge. Weighing on board during discharge is only allowed by permission of the vessel's agents. If permission be given for additional expenses incurred by the vessel in consequence of such weighing on board and whether in respect of extra stevedoring charges or otherwise shall be for account of the receivers notwithstanding any custom incurred because of existing dues or charges and new dues or charges imposed by the Government or other Authorities of the country of loading, discharging or transhipment since the date at which the contract of carriage was entered into, will be collected separately from the merchant.
46. LIEN
The carrier shall have a lien for any amount due under this contract and costs of recovering same and shall be entitled to sell the goods privately or by auction to cover any claims.
47. In accepting this bill of lading, the shipper, consignee, owner of the goods and the holder of the bill of lading expressly agree to all its terms, conditions and exceptions whether written, printed stamped or incorporated".
Bill of lading No.5 was indorsed by the shippers and by George Schilinski B.v. who were forwarding agents appointed by Unigrain Sud West Getreide Handelgesellachaft m.b.h to obtain delivery of the goods at Rotterdam and arrange their onward carriage to Mannheim, for which purpose a barge was hired to lie alongside the ship. Schilinski's representative presented bill No.5 to the vessel's...
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