The Stolt Loyalty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOFFMANN,LORD JUSTICE HIRST,LORD JUSTICE GLIDEWELL |
| Judgment Date | 12 January 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0112-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 January 1995 |
| Docket Number | QBADF 93/0920/B |
[1995] EWCA Civ J0112-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
(Mr. Justice Clarke)
Before: Lord Justice Glidewell Lord Justice Hirst Lord Justice Hoffmann
QBADF 93/0920/B
MR. J COOKE QC & MR. J SMOUHA (Instructed by Messrs. Ince & Co, EC3R 5EN) appeared on behalf of the Appellant
MR. A SMITH QC & MR. M MACLAREN (Instructed by Messrs. Clyde & Co, EC3M 1JP) appeared on behalf of the Respondent
Thursday 12 January 1995
This is an appeal from a judgment of Clarke J in which he determined by way of preliminary issue that the time for bringing a claim by the plaintiff cargo owners against the defendant demise charterers had been extended, and that the claim was therefore not barred by Article III Rule 6 of the Hague Rules.
The facts are extremely simple. The Plaintiffs shipped palm oil under 3 bills of lading from Papua New Guinea to the United Kingdom on the "Stolt Loyalty". They claim that it was contaminated on arrival. The cargo was fully discharged by 3 April 1987. The period for making a claim therefore expired on 3 April 1988.
The "Stolt Loyalty" was owned and operated by companies in the Stolt Nielsen shipping group of Norway. At the material times the company which was registered as the owner was Soframar SA, but the ship was under a demise or bareboat cargo dated 23 June 1976 to an associated company called Stolt Loyalty Inc ("Stolt Loyalty"). The bareboat charter was part of the financial arrangements under which the purchase of the vessel had been financed by the Société Générale. The bills of lading were signed by the master who was employed by Stolt Loyalty, and there is now no dispute that the contracts of affreightment under which the Plaintiffs' cargo was carried was made with Stolt Loyalty. The bills of lading incorporated the terms of voyage charters between Anthony Radcliffe Steamship Co Ltd ("Anthony Radcliffe") and the respective shippers. Anthony Radcliffe was another Stolt Nielsen company which appears to have been sub-time charterers from Stolt Loyalty. That was the contractual structure.
Clyde & Co acted for the cargo owners and Gard (UK) Ltd ("Gard") represented the P&I Club by which Soframar and Stolt Loyalty were insured. The question of whether or not an extension was granted depends entirely upon the construction of the correspondence passing between Clyde & Co and Gard.
The discharge of the cargo was, as I have said, completed on 3 April 1987. On 7 April Clyde & Co sent a telex to the Stolt Nielsen group in Norway notifying them of the claim and saying:
"We are instructed to request that you furnish security for the claim in the form of a letter of undertaking from your P&I Club…..which should cover the legal liability of the owners of the Stolt Loyalty".
A reply came on the following day from Gard:
[Please] note that we have [received] authority to offer your clients a Gard [letter of undertaking] in wording and amount to be agreed. This [letter of undertaking] is to cover the legal liability of [those] concerned in the 'Stolt Loyalty'….We await proposed wording. [For your information, please] note we are informed that 'Stolt Loyalty' was bareboat chartered to Stolt Loyalty Inc. With this in mind, no doubt you will send us draft wording for consideration."
On 9 April 1987 Clyde & Co proposed a draft which included the following words:
"In consideration of the owners of the cargo….refraining from taking action resulting in the arrest of the ['Stolt Loyalty']….and of the said cargo owners refraining from commencing….proceedings otherwise than before the court referred to below against the owners and/or demise charterers of the above-named ship….we hereby undertake to pay you….on demand such sums as may be adjudged by the English High Court of Justice or as may be agreed to be recoverable from the owners and/or demise charterers of the above-named ship…. We hereby warrant that we have received irrevocable authority from the owners and demise charterers….to instruct solicitors…. We further confirm that the owners and demise charterers….submit to the jurisdiction of the English High Court of Justice."
I have extracted the relevant words. This wording was agreed with immaterial amendments by telex of 14 April 1987, which added:
"Otherwise we are informed that the actual shipowners are Soframar SA and the [bareboat charterers] are Stolt Loyalty Inc."
The actual letter of undertaking, which is dated 27 April 1987, had the words "Soframar SA/Stolt Loyalty Inc" inserted immediately before the words "the owners and/or demise charterers" where they appear for the first time in the extract from the draft which I have quoted.
Once the letter of undertaking was in place, there was no correspondence between the parties for some time. On 3 march 1988 Miss Cresswell of Clyde & Co sent a telex to Mr. Platt of Gard. It said in paragraph 1 that she was instructed to agree to a reduction in the amount of security, and went on as follows:
"(2) We are awaiting one or two outstanding matters from our clients but hope shortly to be in a position to discuss settlement of the claims with you. In the meantime we note that the 1 year anniversary of discharge of the cargo from the 'Stolt Loyalty' is imminent. Would you please confirm owners agree an [extension] of the limit for all above claims up to and including 26/9/88.
(3) We [have] been provided with a copy of the [charterparty] of 19 December 1986 between Anthony Radcliffe S/S Co Ltd and [cargo owners] as [time charterers] owners of the 'Stolt Loyalty' for voyage in question. Are you able to confirm Anthony Radcliffe's agreement to a similar extension of time also? If not [could] you please advise name and address of [party] at Radcliffe who we should contact in this [regard]?"
On 14 March 1988, there having been no reply to this telex, Miss Warwick, an articled clerk at Clyde & Co, telephoned Mr. Platt of Gard to ask whether 'the owners' had agreed to an extension. Mr. Platt said that he had passed on the request to his principals, as indeed he had, and was waiting...
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