Tor Line A.B. v Alltrans Group of Canada Ltd (TFL Prosperity)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DILLON,SIR DENYS BUCKLEY |
| Judgment Date | 30 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0330-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 1983 |
| Docket Number | 83/0141 |
[1983] EWCA Civ J0330-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR. JUSTICE BINGHAM)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Dillon
and
Sir Denys Buckley
83/0141
MR. K. ROKISON, Q.C. and MR. S. TOMLINSON (instructed by Messrs. Ingleden Brown Bennison & Garrett) appeared on behalf of the (Claimants) Respondents.
MR B. RIX, Q.C. and MR. M. TUGENDHAT (instructed by Messrs. Clyde & Co.) appeared on behalf of the (Respondents) Appellants.
This appeal is concerned with the scope of clause 13 of the "Baltime" charterparty. The relevant facts and the issue can be briefly stated.
The appellant shipowners chartered a Ro-Ro (roll-on roll-off) vessel to the respondent charterers on the Baltime form. The description of the vessel, normally contained in lines 2–8 of the print, were struck out and instead the parties agreed upon a typed clause 26 which dealt with all the matters contemplated by the struck out print and, in addition, a large number of other details. Included amonst these additional details were certain measurements, including the free height of the main deck which was shown as being 6.10 metres. In fact, in way of frame 19, the free height was only 6.05 metres or about 2 inches less than described.
The charterers found that they were unable to load the vessel in the way which they had intended, namely with two 40' long containers one on top of the other and the pair on a trailer. Their claim for loss and damage consequent upon this breach of the warranty of description given by the owners was referred to arbitration and the owners relied upon clause 13 by way of defence.
Clause 13, which is in the following terms, is more intelligible if divided into four sentences, as it was in the judgment of Lord Denning, M.R. in the " Charalambos N. Pateras" (1972) 1 Lloyd's List Reports 1, 3 to which I must return.
First
The owners only to be responsible for delay and delivery of the vessel or for delay during the currency of the charter and for loss or damage to goods on board, if such delay or loss has been caused by want of due diligence on the part of the owners or their manager in making the vessel seaworthy and fitted for the voyage or any other personal act or omission or default of the owners or their manager.
Second
The owners not to be responsible in any other case nor for damage or delay whatsoever and howsoever caused even if caused by the neglect or default of their servants.
Third
The owners not to be liable for loss or damage arising or resulting from strikes, lock-outs or stoppage or restraint of labour (including the master, officers or crew) whether partial or general.
Fourth
The charterers to be responsible for loss or damage caused to the vessel or to the owners by goods being loaded contrary to the terms of the charter or by improper or careless bunkering or loading, stowing or discharging of goods or any other improper or negligent act on their part or that of their servants.
The umpire was a highly experienced maritime arbitrator, Mr. Alan H. Kent, whose recent death has been a great loss to London Maritime arbitration. In his award, he held that clause 13 had no application. The relevant passage reads as follows:
"Turning to clause 13 of the charter-party, the Owners try to escape liability for their breach of clause 26 as to the height in the main deck. Reliance on clause 13 does not appear to me to have been pleaded in the Amended Points of Defence for any such breach. Nevertheless, I do not believe such a defence can succeed. In my opinion, clause 13 was intended to cover cases of damage or delay occurring after the charter-party came into force. It does not cover breaches of warranty in the charter-party. If this were so, any warranties given by the Owners would be completely worthless and I hold that the defence of clause 13 fails."
The owners appealed to the High Court by leave of Mr. Justice Bingham, who reached the same conclusion as the learned umpire. He said:
"At the conclusion of the argument (which I have summarised) on the effect of clause 13 I was of the opinion that a strong prima facie case had been made out that the Umpire was wrong on this point. Further consideration persuades me that he was not. The particular incidents mentioned in the clause suggest that the clause is concerned with claims arising from and during the operation of the vessel under the charterparty, but the second sentence is (as the Court of Appeal held in The Charalambos N. Pateras, supra) drawn in very wide terms. The dicta which I have quoted did not in any way restrict the effect of the second sentence. On the other hand, the facts of that case were very far from the present and the members of the court could scarcely have been thinking of facts such as arise here. It is, of course, true that the departure from the stipulated dimensions in the present case is very slight, but the owners' construction of clause 13 (if correct) would protect them even against a major departure from specification. Reference to clause 26 of the charter-party (of which only a very short excerpt has been quoted above) reminds one that it occupies two whole pages of typescript and contains very precise details of a large number of structural, mechanical and other features. A great variety of particulars are set out, not only concerning the height and breadth dimensions but also the number of trailers which could be accommodated, the degree of slope at certain points, the capacity of a lift, the bearing strength of various decks, the available equipment for securing trailers and containers and then details of the engines, generators, speed, consumption, deadweight and so on. All this the parties carefully and deliberately added to the printed form of contract. Was the result devoid of contractual effect? On the owners' argument it would not even have an effect such as Wright J. found in the Istros case, setting out in plain terms what the master's duty was, since there could be no practical virtue in recording the physical characteristics of the vessel which the owners had contracted (but without responsibility) to supply. Nor would the charterers' rights in misrepresentation be dependent on these details in the charterparty.
'The object sought to be achieved in construing any commercial contract is to ascertain what were the mutual intentions of the parties as to the legal obligations each assumed by the contractual words in which they (or brokers acting on their behalf) chose to express them; or, perhaps more accurately, what each would have led the other reasonably to assume were the acts that he was promising to do or refrain from doing by the words in which the promises on his part were expressed.' (per Lord Diplock in The Nema, supra, at p. 297D). Adopting that approach, I find it impossible to conceive that the parties intended the owners to be immune from liability in respect of breaches of clause 26, at least so far as the structural statistics of the vessel are concerned. I say nothing about the clauses which follow clause 26, nor about the effect of any descriptive detail which would ordinarily be contained within the printed parts of the form. But just as in The Brabant, supra, McNair J. was led by the reference to the owners' risk in an added clause to conclude that a breach of that clause was not protected by clause 13, so here I conclude that a breach of these detailed provisions, relating to matters outside the apparent scope of clause 13, must be regarded as falling outside the ambit of the protection afforded by that clause. In the result, therefore, I arrive at the same conclusion as the Umpire and dismiss the appeal."
Mr. Justice Bingham then certified that the question of law in issue was one of general public importance and gave leave to appeal to this court.
The deficiency in height complained of has no effect on seaworthiness and the breach of warranty was not due to any personal act or omission or default of the owners or their manager. It was in fact the result of the owners, not unreasonably, relying upon the shipbuilders' plans and drawings for the vessel. Furthermore the breach caused no delay in delivery of the vessel or during the currency of the charterparty and no loss or damage to goods on board. Accordingly the first sentence of clause 13 has no application. Nor, for different reasons, have the third and fourth sentences. The issue, and the sole issue, is whether the second sentence on its true construction provides the owners with a defence.
That sentence bears repetition. It reads:
"The Owners not to be responsible in any other case nor for damage or delay whatsoever and howsoever caused even if caused by the neglect or default of their servants."
In The Charalambos N. Pateras ( supra) Lord Denning, M.R. with the agreement of Lord Justice Cairns held, at page 3 of the report, that the opening words of the sentence excluded liability for the four types of delay, loss or damage specified in the first sentence, when not due to the default of the owners or their manager. In other words, it is the converse of that sentence and the two provisions deal comprehensively with the specified categories of delay, loss and damage. This leaves...
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