The Indian Endurance [QBD (Admiralty)]

JurisdictionEngland & Wales
JudgeClarke J
Judgment Date23 May 1994
CourtQueen's Bench Division (Admiralty)
Date23 May 1994

Queen's Bench Division (Admiralty Court)

Clarke J.

The Indian Endurance

Timothy Charlton QC and Alan Roxburgh (instructed by Clyde & Co) for the cargo owners.

Jeffrey Gruder (instructed by Ince & Co) for the defendants.

The following cases were referred to in the judgment:

Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank LtdELR [1982] QB 84.

Arnold & Ors v National Westminster Bank plcELR [1991] 2 AC 93.

August 8, TheELR [1983] 2 AC 450.

Bengal, TheENR (1859) Swab 468; 166 ER 1220.

Bold Buccleugh, TheENR (1850) 7 Moo PC 267; 166 ER 944.

Burns, TheELR [1907] P 137.

Carl Zeiss Stiftung v Rayner & Keeler Ltd & Ors (No. 2)ELR [1967] 1 AC 853.

Cella, TheELR (1888) 13 PD 82.

Compania Naviera Vascongado v Steamship Cristina & OrsELR [1938] AC 485.

Deichland, TheELR [1990] 1 QB 361.

Dictator, TheELR [1892] P 304.

Gemma, TheELR [1899] P 285.

Gibbs v Cruikshank & OrsELR (1873) LR 8 CP 454.

Griefswald, TheENR (1859) Swab 430; 166 ER 1200.

Henderson v HendersonENR (1843) 3 Hare 100; 67 ER 313.

Henrik Sif, The. Pacol Ltd v Trade Lines Ltd [1982] 1 LI Rep 456.

Hiscox v OuthwaiteELR [1992] 1 AC 562.

Joannis Vatis, The (No. 2)ELR [1922] P 213.

John and Mary, TheENR (1859) Swab 471; 166 ER 1221.

Jupiter, TheELR [1924] P 236.

Kherson, The [1992] 2 LI Rep 261.

Lanarkshire, TheENR (1855) 2 Spinks 189; 164 ER 380.

Letang v CooperELR [1965] 1 QB 232.

Linda, The [1988] 1 LI Rep 175.

Lokumal (K) & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (The August Leonhardt) [1985] 2 LI Rep 28.

MaciejRataj, The [1992] 2 LI Rep 552.

Malilvo, TheELR (1869) LR 2 A & E 356.

Monica S, TheELR [1968] P 741.

Moorgate Mercantile Co Ltd v TwitchingsELR [1977] AC 890.

Nelson & Ors v Couch & OrsENR (1863) 15 CB (NS) 99; 143 ER 721.

Nordglimt, TheELR [1988] QB 183.

RenaK, TheELR [1979] QB 377.

Sardinia Sulcis, The, and The Al Tawwab [1991] 1 LI Rep 201.

Sennar, The, DSV Silo — und Verwattungs-Gesellschaft MbH v Owners of the Sennar and 13 other ships (No. 2)WLR [1985] 1 WLR 490.

Spiliada Maritime Corp v Cansulex LtdELR [1987] AC 460.

Stolt Loyalty, The [1933] 2 LI Rep 281.

Sylt, The [1991] 1 LI Rep 240.

Taylors Fashions Ltd v Liverpool Victoria Trustees Co LtdELR [1982] QB 133.

Tervaete, TheELR [1922] P 259.

Vistafford, The. Norwegian American Cruises AIS v Paul Mundy Ltd [1988] 2 LI Rep 343.

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & AnorELR [1975] AC 581.

Yeo & Anor v Tatem & Anor (The Orient)ELR (1871) LR 3 PC 699.

Young (Master of SS Furnesia) v SS ScotiaELR [1903] AC 501.

Admiralty — Res judicata — Action in rem — Carriage of cargo from Sweden to India — Fire on board vessel resulted in loss and damage to cargo — Cargo owners brought action in India for short delivery of cargo — Action for total loss of cargo brought in England — Judgment in India for cargo owners — Whether causes of action and parties the same — Whether claim in England res judicata — Whether cargo owners entitled to plead waiver or estoppel — Civil Jurisdiction and Judgments Act 1982, s. 34.

This was a trial of preliminary issues of law to determine whether the cargo owners' action in rem was barred by res judicata under s. 34 of the Civil Jurisdiction and Judgments Act 1982 as a result of a decision of a court in India, or whether the shipowners were estopped from relying on that section.

A cargo of munitions owned by the Republic of India was being carried from Uddevala in Sweden to Cochin in India on board the vessel the “Indian Grace” when fire broke out on 1 July 1987. As a result part of the cargo of munitions was jettisoned and part of the remainder was damaged. The cargo owners brought proceedings for short delivery under the bills of lading in Cochin. On 25 August 1989 the cargo owners issued a writ in rem for the total loss of the cargo. In December 1989 the action was tried in India. The judge, in giving judgment for the cargo owners on the shortage claim, specifically referred to a much larger claim by the cargo owners in respect of the same cargo, which did not arise for consideration in that suit.

The shipowners applied to strike out the writ in rem on the ground that the claim was barred by res judicata under s. 34 of the 1982 Act because it was between the same parties and arose out of the same cause of action as the action in which judgment had been given in India. Sheen J struck out the action. The Court of Appeal upheld that decision. The House of Lords allowed the cargo owners' appeal on the ground that, although the cause of action was the same, the parties might not be since the Cochin action was in personam whereas the present action was in rem. Further, the defence of waiver or estoppel might be available to prevent the shipowners from relying on s. 34 of the 1982 Act. Preliminary issues were tried to determine those questions.

Held, allowing the cargo owners to proceed with their action in rem:

1. The cargo owners were, to the knowledge of the shipowners, proceeding in Cochin on the basis that the claim was limited to the shortage claim and that the larger claim would proceed in England. The shipowners' failure to react to the basis of the cargo owners' claim in the Cochin proceedings amounted to a manifestation of their consent to that basis. Accordingly they were estopped either by convention or acquiescence from relying on the Cochin judgment to prevent the cargo owners from proceeding in England in respect of the larger claim. The shipowners were therefore not entitled to rely on s. 34 of the 1982 Act.

2. On the true construction of s. 34 of the 1982 Act the causes of action relating to the same subject-matter in an action in personam and an action in rem were the same, but the parties were different, an action in rem being against a ship, not a person. The defendant did not become a party to an action in rem until he chose to acknowledge service. The action remained an action in rem at least in part after the defendant had acknowledged service. The cargo owners' action in England was accordingly not barred by s. 34 of the 1982 Act as a result of the Cochin judgment.

3. In the special circumstances of the case, it would not be an abuse of the process of the court to allow the cargo owners to proceed with their larger claim in England notwithstanding the judgment in Cochin, on condition that the cargo owners paid any extra costs incurred by the shipowners by the fact that there had been two sets of proceedings.

JUDGMENT

Clarke J: This is the trial of certain preliminary issues in an action brought by the Republic of India and the Ministry of Defence of the Government of India (“MOD”) as the owners of cargo which was carried from Uddevala in Sweden to Cochin in India between 26 June and 4 September 1987 on board the defendants” ship INDIAN GRACE. There has been a good deal of interlocutory activity in this action. The writ was issued on 25 August 1989 and was served on the defendants” vessel INDIAN ENDURANCE at Middlesborough on 4 May 1990. On 12 December 1990 Sheen J, with some reluctance, struck the action out on the ground that the plaintiffs” claim was barred by res judicata under s. 34 of the Civil Jurisdiction and Judgments Act 1982, as a result of the decision of the subordinate judge's court of Cochin in India which had been made on 16 December 1989 by the principal sub-judge of that court. The plaintiffs” appeal to the Court of Appeal from the decision of Sheen J was dismissed, but on 18 February 1993 the House of Lords allowed their further appeal and set aside the order striking the action out.

The House of Lords' decision is reported at [1993] AC 410. It held that, subject to one point, these proceedings are brought on the same cause of action as those before the court in Cochin within the meaning of s. 34 of the 1982 Act, but that a party may be deprived of its right to rely on that section by waiver or estoppel. The one point is the question whether the judgment of the court in Cochin is on the same cause of action, and between the same parties or their privies, as the plaintiffs' claim in this action having regard to the fact that the judgment was given in an action in personam whereas the present action is an action in rem.

This trial is concerned with these main questions, namely:

  1. (1) whether the plaintiffs have agreed not to rely upon s. 34 or have waived their right to do so or are estopped from doing so; and

  2. (2) if not,

    1. (a) whether the section has any application having regard to the fact that this action is an action in rem; and

    2. (b) if the section does not apply, whether these proceedings should be struck out in accordance with the principle in Henderson v HendersonENR(1843) 3 Hare 100, on the ground that the present claim could and should have been raised before the court in Cochin.

Waiver and estoppel

The issues for decision under this head are summarised in the plaintiffs' outline submissions as follows:

  1. (1) Did the parties agree that the present claim could be litigated in England?

  2. (2) Are the defendants estopped from relying upon s. 34 of the 1982 Act or from relying upon issue estoppel based on the Cochin decision? In particular are they estopped:

    1. (a) by representations made in August 1989?

    2. (b) by a failure to give information to Mr Wilson of Clyde & Co which the circumstances required?

    3. (c) as a result of a “convention” established or evidenced:

      1. (i) by the exchanges in August 1989 between Mr Wilson and Captain Singh of the defendants' P & I club and/or

      2. (ii) by the conduct of the trial in Cochin?

In order to resolve those questions it is necessary to find the relevant facts. They were as follows. The action arises out of the carriage of a part cargo of munitions which were loaded in the No. 3 hold of the INDIAN GRACE. They were loaded above a cargo of wood pulp which was destined for other consignees. On 1 July 1987 a fire was discovered in No. 3 hold which was extinguished by water. The...

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1 cases
  • The Indian Endurance (No 2); Republic of India and Another v India Steamship Company Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 April 1996
    ...Or Estoppel — civil Jurisdiction And Judgments Act 1982, S. 34. This was a shipowners' appeal against a decision in the Commercial Court ([1994] CLC 967) on preliminary issues in an action in rem. Clarke J held, inter alia, that the cargo owners' action in rem was not barred by res judicata......

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