The 'Starsin'
| Jurisdiction | England & Wales |
| Judge | Sir Andrew Morritt V-C,Chadwick,Rix L JJ |
| Judgment Date | 23 January 2001 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2001 |
Court of Appeal (Civil Division).
Sir Andrew Morritt V-C, Chadwick and Rix L JJ.
Nigel Jacobs (instructed by Clyde & Co) for the claimants.
Steven Berry (instructed by Holmes Hardingham Walser Johnston Winter) for the defendants.
The following cases were referred to in the judgments:
Anns v Merton London Borough CouncilELR [1978] AC 728.
Berkshire, TheUNK [1974] 1 Ll Rep 185.
Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (“The Mineral Transporter”)ELR [1986] 1 AC 1.
Cartledge v Jopling & Sons LtdELR [1963] AC 758.
D and F Estates Ltd v Church Commissioners for EnglandELR [1989] 1 AC 177.
Darley Main Colliery Co v MitchellELR (1886) 11 App Cas 127.
Donoghue v StevensonELR [1932] AC 562.
English Industrial Estates Corp v George Wimpey & Co LtdUNK [1973] 1 L1 Rep 118.
Fetim BV & ors v Oceanspeed Shipping Ltd (“The Flecha”)UNK [1999] 1 Ll Rep 612.
Gadd v HoughtonENR (1876) 1 Ex 357.
Gold v Patman & Fotheringham LtdWLR [1958] 1 WLR 697.
Hedley Byrne & Co Ltd v Heller & PartnersELR [1964] AC 465.
Irene's Success, TheELR [1982] 1 QB 219.
Jalamohan, TheUNK [1988] 1 Ll Rep 443.
Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (“The Aliakmon”)ELR [1986] 1 AC 708.
Mahkutai, The [1993] 2 HKC 71; [1996] CLC 799; [1996] AC 650 (PC).
Margarine Union GmbH v Cambay Prince Steamship Co Ltd (“The Wear Breeze”)ELR [1969] 1 QB 219.
MB Pyramid Sound MV v Briese Schiffahrts GmbH & Co KG (“The Ines”) [1995] CLC 886.
Nea Tyhi, TheUNK [1982] 1 L1 Rep 606.
New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (“The Eurymedon”)ELR [1975] AC 154.
Nippon Yusen Kaisha v International Import & Export Co Ltd (“The Elbe Maru”)UNK [1978] 1 Ll Rep 206.
NW Metropolitan Regional Hospital Board v TA Bickerton & Son LtdWLR [1970] 1 WLR 607.
Pagnan SpA v Tradax Ocean Transportation SAUNK [1987] 2 Ll Rep 342.
Pirelli General Cable Works Ltd v Oscar Faber & PartnersELR [1983] 2 AC 11.
Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (“The New York Star”)WLR [1981] 1 WLR 138.
Rewia, TheUNK [1991] 2 Ll Rep 325.
Samuel v West Hartlepool Steam Navigation CoUNK (1906) 11 Com Cas 115.
Sunrise Maritime Inc v Uvisco Ltd (“The Hector”) [1998] CLC 902.
Swan, TheUNK [1968] 1 L1 Rep 5.
Universal Steam Navigation Co Ltd v James McKelvie & CoELR [1923] AC 492.
Venezuela, TheUNK [1980] 1 Ll Rep 393.
Vikfrost, TheUNK [1980] 1 Ll Rep 560.
Wehner v Dene Steamship CoELR [1905] 2 KB 92.
Weller & Co v Foot and Mouth Disease Research InstituteELR [1966] 1 QB 569.
Zinnia, TheUNK [1984] 2 Ll Rep 211.
Shipping — Carriage of goods — Bills of lading — Timber cargoes damaged by pre-shipment wetting and negligent stowage — Time charterer operating liner service issued bills of lading as carrier — Whether bills were owners' bills or charterers' bills — Effect of identity of carrier and demise clauses — Whether owners liable in contract — Whether owners liable in tort — Whether damage to timber caused by negligent stowage occurred and cause of action complete before claimants acquired title — Whether owners could rely on Himalaya clause in bills.
These were an appeal by owners and a cross-appeal by charterers from a judgment of Colman J ([1999] CLC 1769) holding that bills of lading were charterers' bills, that owners were liable in tort for damage to timber cargoes caused by negligent stowage, and that owners could rely on the Himalaya clause in the bills but only to the same extent as the carrier who was not protected against negligent stowage.
Various consignments of timber were loaded on the defendant's vessel, Starsin, at three load ports in Malaysia for carriage to Antwerp. Parts of the goods were affected by wet damage before shipment. On shipment the stowage was negligently performed. On out-turn widespread damage by wetting was found attributable to the pre-shipment rain damage and to condensation damage occurring during the voyage caused by the negligent stow. The claimants were purchasers and receivers of the timber who obtained title to their respective consignments during the course of the voyage and in one case the voyage commenced. They claimed under liner bills of lading issued by “CPS” who were the charterers of the Starsin, from owners, under a time charter on the NYPE form. The bills were signed by port agents for CPS “as carrier”. In proceedings by the cargo owners, Colman J ([1999] CLC 1769) held, following The Hector [1998] CLC 902 and distinguishing The FlechaUNK [1999] 1 Ll Rep 612, that the bills were charterers' not owners' bills since the effect of the words in the signature box was to identify CPS as the party bound by the bill of lading contracts notwithstanding the inclusion in the bills of a standard form identity of carrier clause (cl. 33) and a “demise” clause (cl. 35). The latter provided that if the vessel was not owned by or demise chartered to the company or line by whom the bill of lading was issued the bill (notwithstanding anything that appeared to the contrary) would take effect only as a contract of carriage only with the owner or demise charterer made through the agency of the company or line who acted solely as agent and would not be personally liable. He further held that the owners were liable in tort for the negligent stowage in respect of the damage which occurred after title in the goods had passed to the claimants in the course of the voyage. Since the bills were charterers' bills the owners could be treated as an independent contractor entitled to rely on the Himalaya clause in the bills but only to the extent of the carrier's own protection under the bills of lading (which did not extend to negligent stowage). The judge refused to permit the claimants to amend to plead a cause of action under the Latent Damage Act 1986. The owners appealed and charterers cross-appealed.
Held allowing owners' appeal in part and charterers' cross-appeal in part (by a majority):
1. (Per Morritt V-C and Chadwick LJ) The description of CPS as carrier in the signature box would lead anyone reading the bill to believe, in accordance with the identity of carrier clause, that CPS was the owner of the vessel, when it was in fact a time charterer with the shipowner's authority to sign bills for and on behalf of the master. Where the bills were issued by a liner company and the vessel was not owned by or demise chartered to that company, the effect of a demise clause in the form of cl. 35 was that the bill of lading took effect only as a contract of carriage with the owner The description of CPS as carrier in the signature box had to yield to the provisions of the bills of lading read as a whole and in particular cl. 33 which identified the carrier as the shipowner by virtue of cl. 35. Accordingly the bills were owners' bills and the owners were liable in contract. (The FlechaUNK[1999] 1 Ll Rep 612applied;The Hector[1998] CLC 902distinguished;Universal Steam Navigation Co Ltd v James McKelvie & CoELR[1923] AC 492considered.)
(Per Rix LJ) Colman J was right to hold that the bills were charterers' bills since the wording in the signature box made it plain that CPS did not act as agent only and signed as carrier. That conclusion was not overridden by the demise clause which despite its wording was not paramount. Therefore the owners were not liable in contract.
2. The cause of action in respect of negligent stowage was completed once and for all when more than insignificant damage was caused by that negligence to the respective parcels of timber not long after the voyage began and before the claimants acquired title. All subsequent damage was merely the continuation of the damage already suffered and there was no new negligence after the transfer of title to the claimants. Therefore the claims in tort failed, except in relation to the claimant who acquired title before the ocean voyage began. (Pirelli General Cable Works Ltd v Oscar Faber & PartnersELR[1983] 2 AC 1applied.)
3. Colman J was right that if the bills were charterer's bills the owner could be an independent contractor for the purposes of the Himalaya clause but that the clause only protected the owner to the same extent as the carrier itself was protected by the bill of lading provisions and that the carrier would have no exemption for negligent stowage.
4. The court would not interfere with the judge's exercise of his discretion not to permit amendment to plead a cause of action under the Latent Damage Act 1986.
Rix LJ:
1. This appeal raises three issues familiar to shipping law: (1) Are the bills of lading in question owners' bills or charterers' bills? (2) If they are charterers' bills, can the owner of the vessel that performed the carriage be sued in tort? (3) If the owner can be sued in tort, to what extent can it be protected by the Himalaya clause contained in the bills of lading?
2. The novelty in the first issue is the presence of a demise clause in the printed terms of the bills of lading combined with a signature for a liner company described as the “carrier”. The novelty in the second issue is the transfer of title in the goods while they are still afloat and the occurrence of damage both before and after the transfer of title. The novelty in the third issue is the reliance placed by a third party to the bill of lading on the opening words of the Himalaya clause, which have not been previously invoked as operating to the benefit of third parties as distinct from the carrier itself.
3. In his judgment below, Colman J held that the bills were charterers' bills, that the owner could be sued in tort, and that it was entitled under the Himalaya clause to the same protection as was available to the...
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