The Torni

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date27 April 1932

Court of Appeal

Scrutton, Greer and Slesser, L.JJ.

The Torni

The AdriaticELR 145 L. T. Rep. 580 (1931) P. 241

Anselme Dewavrin fils et Cie. v. Wilsons and North Eastern Railway Shipping Company LimitedUNK (39 Ll. L. R. 289).

Re Missouri CompanyDID=ASPM 6 Asp. Mar. Law Cas. 423 61 L. T. Rep. 316 42 Ch. Div. 321

Cox v. BruceELR 18 Q. B. Div. 147

Frenkel V. MacAndrew and CoDID=ASPM 17 Asp. Mar. Law Cas. 582 141 L. T. Rep. 38 (1929) A. C. 545

Leduc v. WardDID=ASPMELR 5 Asp. Mar. Law Cas. 290 58 L. T. Rep. 908 20 Q. B. Div. 475

Dobell v. RosemoreDID=ASPMELR 8 Asp. Mar. Law Cas. at p. 34 73 L. T. Rep. at p. 75 (1895) 2 Q. B. 408, at pp. 412 and 413

Reg. v. Price 11 Ad. and Ell. 727

Reg. v. HallENR 89 L. T. Rep. 394 (1801) 1 Q. B., at p. 747

Carriage of goods — Bill of lading issued in Palestine — Bill of lading illegal by Law of Palestine

Order of Langton, J. varied and in part affirmed.

ASPINALL'S MARITIME LAW CASES. 315 Ct. of App.] The Torni. [Ct. of App. (Supreme Court of Judicature. COURT OF APPEAL. April 26 and 27, 1932. (Before Scrutton, Greer and Slesser. L.JJ.) The Torni. (a) ON APPEAL FROM THE ADMIRALTY DIVISION. Carriage of goods - Bill of lading issued in Palestine-Hill of lading illegal by Law of Palestine - Failure to incorporate the " Hague Rules"-Bill of lading "wherever signed to be construed in accordance with English law " Whether "Hague Rules" incorporated - Government of Palestine Carriage of Goods by Sea Ordinance No. 43 of 1926. By the Government of Palestine Carnage of Goods by Sea Ordinance No. 43 of 1926 it is provided that any bill of lading or similar document of title issued in Palestine which contains or is evidence of any contract to which certain rules scheduled to the Ordinance (which are identical with the rules in the schedule of the Carriage of Goods by Sea Act 1924) apply shall contain an express statement that it is to have effect subject to the provisions of the said rules, and shall be deemed to have effect subject thereto, notwithstanding the omission of such express statement. Bills of lading issued in Palestine in respect of a cargo of oranges shipped on board the appellants' steamship at Jaffa did not contain any express statement as required by the above Ordinance, nor were the rules in any way incorporated therein. The bills of lading provided that, wherever signed, they should be construed in accordance with English law. Held, on an issue as to a preliminary point of law, that the bills of lading sued upon under which the property in the goods was alleged to have passed by indorsement of the bills of lading to the indorsees must be construed subject to the rides scheduled to the Ordinance. The provision contained in such bills of lading that they should be construed in accordance with English law did not mean that the incorporation of the rules should be excluded, but merely meant that the bills of lading with the rules so incorporated should be construed in accordance with English law. Held, further, that as regards certain plaintiffs who had taken delivery of goods and paid the freight, but as to whom it was not alleged that the property in the goods had passed by indorsement, no order could be made until the facts had been proved. Order of Langton, J. varied and in part affirmed. Trial of a preliminary point of law in an action for damage to cargo and short delivery. The plaintiffs were the owners of the cargo of oranges ex the nian steamship Torni. The defendants were the owners of the Torni, which at the time of the matters in question was under time charter to a firm of shipbrokers at Swansea. The cargo of oranges was shipped at Jaffa, where the bills of lading were issued. By their statement of claim the plaintiffs alleged (par. 3) that Messrs. White and Son Limited and Messrs. William Machin and Co., two of the plaintiffs, were respectively the owners of 749 and 340 cases of the said oranges, to whom the property in the oranges passed upon indorsement of the bills of lading relating thereto. It was further alleged (par. 4) that Messrs. I. H. Goodwin Limited, White and Son (Hull) Limited, Humber Fruit Broker. Limited, Connelly Shaw Limited, T. J. Poupart (Northern) Limited, William Machin and Co., William N. Gibson and Co. (Leitn) Limited, T. S. Johnson and Co., Andrew S. Clarke and Co. respectively took delivery of various cases of oranges set forth in the statement of claim under bills of lading held by them and presented to the defendants and paid freight due under such bills of lading respectively. (a) Reported by Groffery Hutchinson, Esq., Barrister-at-law 316 ASPINALL'S MARITIME LAW CASES. Ct. of App.] The Torni. [Ct. of App. By their defence the defendants relied upon - certain exceptions and other provisions contained in the bills of lading. In their reply the plaintiffs alleged the exceptions and provisions upon which the defendants relied were null and void under Art. III., r. 8, of the Government of Palestine Carriage of Goods by Sea Ordinance No. 48 of 1926, which requires rules similar to those scheduled to the Carriage of Goods by Sea Act 1924, to be incorporated in all bills of lading issued in Palestine. The defendants by their rejoinder denied that the bills of lading were subject to the Ordinance, and relied upon the following further provision in the bills of lading in question" This bill of lading wherever signed is to be construed in accordance "with English law." They further alleged that the Torni was at all material times under the flag of Esthonia. The Government of Palestine Carriage of Goods by Sea Ordinance No. 43 of 1020 provides, so far as material, as follows : " An Ordinance to amend the law with respect to the carriage of goods by sea. "Whereas a Convention for the unification of certain Rules relating to bills of lading was adopted by the International Conference on Maritime Law held at Brussels in 1022 and 1923 ; " And whereas it is expedient that the Rules of the Convention as set out in the schedule to this Ordinance should, subject to the provisions hereof, be given the force of law in Palestine with a view to establishing the responsibilities, liabilities, rights and immunities attaching to carriers under bills of lading ; " Be it enacted by the High Commissioner for Palestine [Field-Marshal Lord Plumer] with the advice of the Advisory Council thereof: . . . " 2. Subject to the provisions of this Ordinance, the Rules contained in the Schedule hereto shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Palestine to any other port whether in or outside Palestine. . . . "4. Every bill of lading or similar document of title issued in Palestine which contains or is evidence of any contract to which the Rules apply shall contain an express statement that it is to have effect subject to the provisions of the said Rules as applied by this Ordinance, and shall be deemed to have effect subject thereto, notwithstanding the omission of such express statement." Schedule [contains rules similar to those scheduled to the Carriage of Goods by Sea Act 1924.] The question which the court was asked to determine as a preliminary point was whether the provisions of the Palestine Ordinance applied to the bills of lading in question. Van den Berg, K.C. and Cyril Miller for the plaintiffs. Raeburn, K.C. and Sir Robert Aske for the defendants. The facts and arguments of counsel fully appear from the judgment of Langton, J. Dec. 11, 1931.-Langton, J. read the following judgment: This case belongs to a class which I have already referred to in a judgment which I delivered last term as a kind of case which generally presents difficulties to me. It is no exception to that rule. I Since I have endured in the present ease the refined, but well-merited, torture of listening to almost the whole of my somewhat prolix judgment in the previous ease (The Adriatic, 145 L. T. Rep. 580 ; (1931) P. 241) read to me viva voce, I will say at once that I have found very little in that pronouncement which has been of any assistance to me in this case. Although one of the points to be determined now is the same as in The Adriatic case, namely, which of alternative systems of law applies in interpreting the several contracts between the parties, the facts are wholly dissimilar. In the present case certain parcels of oranges were shipped from Jaffa and carried to Hull upon the steamship Torni. The vessel is owned by the Reval Shipping Company Limited, an Esthonian company, and is an Esthonian ship. At the time in question- Jan. 1930-she was under time charter to Messrs. Stockwood, Rees, and Co., shipbrokers of Swansea, and was employed by them in a service which they advertised to the world in general and Palestine in particular as the Jaffa Union Line. All the bills of lading concerning these oranges were dated in Jaffa and signed in Jaffa by persons purporting to sign as directors of the Jaffa Union Line Limited. It was proved in evidence before me, upon testimony which I accept, that the Jaffa Union Line Limited is a corporation under the law of Palestine, which has been formed by certain gentlemen in that country who act as agents for Messrs. Stockwood, Rees, and Company. Some of the preference shares in the Jaffa Union Line Limited are owned by Messrs. Stockwood, Rees, and Co., and the Palestine Corporation is paid a loading commission by Messrs. Stockwood, Rees, and Company upon all shipments made at Jaffa upon ships which sail in the service known as the Jaffa Union Line. The average number of trips made per season in this service is about sixteen, but in a busy season the number has been as high as twenty-five. There was for a short while some obscurity in my mind as to the precise relationship of the Jaffa Union Line to the corporation known as the Jaffa Union Line Limited. This obscurity was quickly and finally dispelled by Mr. Rees, who explained that...

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    ...lading is to be construed by the law, not of the place where it is made, but by the law of the place to which the ship is going", see The Torni (1932) Probate 78 at page 20I may add that Lord Justice Scrutton with his robust common-sense would not have allowed them to "upset the ......
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    ...cited by Upjohn J. in In re Helbert Wagg & Co. Ltd. [1956] Ch. 323 at p.341: "There were certain differences between that case [ The Torni [1932] P.78] and the present. One was that the bills of lading had a clause that they were ' to be construed in accordance with English law '......
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