Tor Line A.B. v Alltrans Group of Canada Ltd (TFL Prosperity)
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook |
| Judgment Date | 15 December 1983 |
| Judgment citation (vLex) | [1983] UKHL J1215-3 |
| Date | 15 December 1983 |
| Court | House of Lords |
[1983] UKHL J1215-3
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Roskill
Lord Brandon of Oakbrook
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it and for the reasons stated in it I would allow this appeal.
My Lords,
I have had the benefit of reading in advance the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I too would allow the appeal.
My Lords,
In this appeal your Lordships' House is invited for the first time to construe clause 13 of the well-known and widely used Baltime Uniform Time Charter. The printed form of this time charter first saw the light of day as long ago as February 1909. It is thus almost three quarters of a century old. Its printed provisions have from time to time since been amended as the list of dates on the top left hand corner of the present printed form shows. The last amendments were made in 1950. What is now clause 13 has from time to time itself appeared in somewhat different forms and with a different number in earlier versions. In what appears to have been the 1920 version, the predecessor of the present clause 13 was numbered clause 12 and was also expressed in slightly different language. But only one of the English cases in which the scope of this clause has been considered has reached the Court of Appeal and the number of decisions at first instance during the last three quarters of a century is surprisingly few having regard to the degree of protection which owners claim that it accords them against claims by charterers.
The present appeal arises in the following circumstances. The respondents ("the owners") were the charterers by demise of a vessel named the T.F.L. Prosperity ("the vessel"). By a time charter dated 24th April 1979 the respondents in that capacity time chartered the vessel to the appellants ("the charterers") for a period of six months and ten days upon the terms of this charter. The version used was that amended with effect from 1st January 1950. To the twenty five clauses of the printed form, some of which were as is usual either deleted or amended, the parties added a massive number of typed clauses numbered 26 to 60 inclusive.
The vessel was of a type known as "roll-on/roll-off" and the charterers required her for their "roll-on/roll-off" liner service which they operated between Europe and the Middle East. It was no doubt for this reason that clause 26, the first of the additional typed clauses, specified in great detail the description of certain fixed structural attributes of the vessel together with particulars of her speed and consumption. I need not set out clause 26 in full. Reference can if necessary be made to the details set out in the report of the present case before Bingham J. at [1982] 1 Lloyd's Rep. 617 at p. 620. Among the provisions of clause 26 under the heading "Free Heights" was "Main Deck 6.10 m". In fact the free height of the main deck at one critical point was only 6.05 metres. As a result a Mafi trailer double stacked with 40 ft. containers could not be loaded into the main deck. The charterers claimed damages from the owners. The damages claimed, so far as now relevant, were mainly for loss of freight but there was also a small claim for damages for delay. The owners raised various defences. One alone remains relevant, that based on clause 13 which bears the rubric "Responsibility and Exemption." The charter contained a London arbitration clause and the dispute was accordingly referred to arbitration, each party appointing an arbitrator. The arbitrators appointed the late Mr. Alan Kent as umpire. The arbitrators disagreed and accordingly Mr. Kent entered upon the reference. In due course he made a long and careful award in favour of the charterers, rejecting their defence based on clause 13 and awarding them damages both for loss of freight and for delay. Mr. Kent also dealt with other matters no longer relevant.
The owners sought leave to appeal on five matters which had been in issue before Mr. Kent. Bingham J. gave leave only on the question whether clause 13 afforded a defence to these two claims. On 20th January 1982 the learned judge in a reserved judgment reached the same conclusion on this issue as had Mr. Kent. But he gave the owners leave to appeal, certifying that this issue was one of general public importance, as indeed having regard to the extent of the use of this form, it clearly was.
On 30th March 1983 the Court of Appeal (Sir John Donaldson M.R., Dillon L.J. and Sir Denys Buckley, allowed the appeal and held that clause 13 did afford a defence to the charterers' claims for damages. See the report in [1983] 2 Lloyd's Rep. 18. The Court of Appeal gave the charterers leave to appeal to your Lordships' House.
A somewhat similar clause to clause 13 appeared in the Gencon Voyage charter which first came into use in 1922. This clause was considered by my noble and learned friend, Lord Diplock, then Diplock J., at first instance in Louis Dreyfus et Cie v. Parnaso Cia Naviera S.A. - The Dominator [1959] 1 Q.B. 498 at pages 514/5. But my noble and learned friend's decision on the central issue in that case was subsequently reversed by the Court of Appeal - see [1960] 2 Q.B. 49. For that reason the effect of the exceptions clause was not further considered - see pages 57/58. I doubt whether that case therefore affords any assistance in resolving the present problem.
Mr. Rokison Q.C. for the charterers advanced three main submissions. First, he contended that clause 13 upon its true construction did not in any event protect the owners against a claim for financial loss suffered by the charterers by reason of the owners' breaches of charter. This submission could not have been successfully advanced in the courts below by reason of the decision of the Court of Appeal to which I have already referred, Nippon Yusen Kaisha v. Acme Shipping Corporation, The "Charalambos N. "Pateras" [1972] 1 Lloyd's Rep. 1. For brevity I shall hereafter refer to that case as the " C.N.P. case". The Court of Appeal there held, contrary to Mr. Rokison's present submissions that Clause 13 did protect the owners against claims for financial loss.
My Lords, let me say at once that I was a party to that decision together with Lord Denning M.R. and Cairns L.J. The correctness of the decision was vigorously challenged by Mr. Rokison for the charterers and equally vigorously supported by Mr. Rix Q.C. for the owners.
Second, Mr. Rokison urged that, even if that case were correctly decided and clause 13 fell to be construed as the Court of Appeal had there held, it did not operate to protect the owners against a claim for damages for breach of the provisions regarding the vessel's description but only in respect of their obligations during the performance of the contractual adventure.
Third, he contended that clause 26, being in type and specially added, must prevail over clause 13 which was in print. Though this argument appears to have appealed to Bingham J. - see page 627 of the report of his judgment - and to have been used by him to reinforce his conclusion that clause 13 did not in any event protect the owners in the event of non-compliance by them with the provisions regarding the vessel's description, Mr. Rokison did not seriously press this third argument. Your Lordships did not find it necessary to hear Mr. Rix upon it. I will only make this observation. In the charter as executed the whole of the printed preamble was struck out and clause 26 with all its details was clearly intended to replace the printed preamble. If physically clause 26 had appeared as a substitute preamble to the charter, that substitute preamble, whether in type or in print, together with all the other clauses of the charter including clause 13, would have fallen to be construed as a whole and if contrary to either of the charterers' two principal submissions, clause 13 does protect the owners, I am afraid I do not follow why a contrary conclusion should be reached merely because the substitute preamble would appear as a typed clause on the first page of the charter and clause 13 would appear as a printed exceptions clause on the second page.
My Lords, I propose first to consider the true construction of clause 13 and to do so without reference to any of the decided cases to which your Lordships were referred in argument. Clause 13 reads as follows:
"Responsibility and Exemption. 13. The Owners only to be responsible for delay in 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. 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. The Owners not to be liable for loss or damage arising or resulting from strikes, lock-outs or stoppage or restraint of labour or vehicles (including the Master, Officers or Crew) whether partial or general.
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...
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