Uniserve (Northern) Ltd v Birkart Globistics Ltd [QBD (Merc)]
| Jurisdiction | England & Wales |
| Judge | Andrew Smith J. |
| Judgment Date | 11 January 2008 |
| Date | 11 January 2008 |
| Court | Mercantile Court |
[2008] EWHC 11 (Mercantile)
Queen's Bench Division (Mercantile Court).
Andrew Smith J.
Jeffrey Bacon (instructed by Clyde & Co) for the claimant.
Nevil Phillips (instructed by Pysdens) for the defendant.
Carriage of goods British International Freight Association terms (2000 edition) Goods delivered to wrong warehouse and accepted Alleged agreement between parties that dealings would be on BIFA terms Goods subsequently stolen Delivery unintended by freight forwarder BIFA terms capable of applying to unintentional delivery Agreement might have been made by agent with ostensible authority Court would recognise and give effect to umbrella agreement that BIFA terms should apply even to unintended delivery.
This was the trial of preliminary issues in a claim in respect of the loss of a consignment of Bluetooth mobile telephone adaptors in January 2003.
Matrix was selling the goods to OCL. It was sending the consignment to Hong Kong and engaged Birkart, a company of freight forwarders, to arrange their carriage by air. Birkart instructed Cheadle to have the goods collected from Matrix's premises in Altrincham, and Cheadle in turn subcontracted that work to a driver, TL. According to Birkart, it instructed Cheadle to deliver the goods to the premises of Robins at Manchester Airport. In fact, TL delivered them to the warehouse premises of Uniserve, which were also near the airport, and Uniserve received them there. The next day there was a burglary there, and the goods were stolen and never recovered.
Matrix and OCL brought proceedings in respect of the loss against both Birkart and Uniserve.
Uniserve brought Part 20 proceedings against Birkart in which it claimed damages for breach of warranty of authority and an indemnity from Birkart in respect of any liability to Matrix. The basis of those claims was Uniserve's contention that it dealt with Birkart on the standard terms of the British International Freight Association, to which both it and Birkart belonged.
In response to the Part 20 claim, Birkart's case was that Uniserve was simply an accidental sub-bailee of the goods, and that the BIFA terms did not apply to a mistaken and erroneous delivery.
The preliminary issues in the Part 20 proceedings were whether delivery to Uniserve's premises of the relevant goods was, as a matter of fact, unintended by either party; and, if so, whether such delivery could have been subject to the BIFA terms.
Birkart's contention was that if it did not intend to deliver the goods to Uniserve, the BIFA terms could not have applied to the delivery. They could not have applied by virtue of an agreement relating specifically to that delivery because there was no contract relating to the delivery if it was unintended, and they could not have applied by virtue of an umbrella agreement because that would have applied only where Uniserve took goods under an agreement with Birkart.
Heldruling accordingly:
1. On the evidence Birkart did not intend that the goods should be delivered to Uniserve. It intended them to be delivered to Robins. Uniserve intended to accept the delivery of the goods.
2. It did not necessarily follow from the fact that the delivery was unintended on the part of Birkart that there was no contract between Birkart and Uniserve relating to it. An agreement might have been made by an agent with Birkart's ostensible authority. It was not fanciful to suppose that, given the nature of the business, it was to be implied that, when the driver collected the goods, he might have accepted instructions about how to deal with them. Neither had Birkart established that the umbrella arrangements could not have applied to an unintended delivery. The BIFA terms were directed primarily to regulating contracts between freight forwarder and customer, but if it was agreed that they should apply to contractual arrangements between Uniserve and Birkart, then the court would make necessary adjustments in their interpretation and apply them mutatis mutandis to the contract of which they were part. Uniserve's pleaded case was that the express agreement between the parties was that the BIFA terms should apply even if Uniserve received an unintentional delivery of goods. If Birkart and Uniserve made an umbrella agreement the terms of which were that the BIFA terms should apply even if there was an unintended delivery to Uniserve by Birkart, the court would recognise and give effect to that agreement. If some manipulation of the wording of the BIFA terms was needed to give effect to the parties' bargain, that would be done. On that basis the delivery could have been subject to the BIFA terms.
Andrew Smith J:
1. These proceedings concern a claim in respect of the loss of a consignment of Bluetooth mobile telephone adaptors in January 2003. Matrix Europe Limited (Matrix) were selling the goods to Adove Trading Company, who were then called Oversea Chinese Limited and to whom I refer as OCL. They were sending the consignment to Hong Kong, and, as they claim and I do not understand to be disputed, they engaged Birkart Globistics Limited (Birkart), a company of freight forwarders, to arrange their carriage by air. Birkart instructed Cheadle Courier Company Stockport Limited (Cheadle) to have the goods collected from Matrix's premises in Altrincham, and Cheadle in turn subcontracted that work to a driver called Trevor Lancashire. According to Birkart, they instructed Cheadle to deliver the goods to the premises of Robins Transport Limited (Robins) at Manchester Airport. In fact, Mr Lancashire delivered them on 10 January 2003 to the warehouse premises of Uniserve Northern Limited (UNL) at Claverton Road, Wythenshawe, which were also near the airport, and UNL received them there. The Claverton Road premises were UNL's principle hub in the North of England. On 11 January 2003 there was a burglary there, and the goods were stolen and have not been recovered.
2. Matrix and OCL have brought proceedings in respect of the loss against both Birkart and UNL, although the proceedings against Birkart are presently stayed. (Proceedings were also brought against Uniserve Holdings Limited but they have been struck out.) UNL have brought part 20 proceedings against Birkart in which they claim damages for breach of warranty of authority and an indemnity from Birkart in respect of any liability to Matrix (and the costs and expenses of the proceedings). The basis of both these claims, as I understand it, is UNL's contention that they dealt with Birkart upon what have been referred to as BIFA terms, the standard terms from time to time of the British International Freight Association, to which both they and Birkart belonged. The relevant BIFA terms, the 2000 edition, provide:
(i) (by clause 3) that The Customer warrants that he is either the Owner or the Authorised Agent of the Owner and also that he is accepting these conditions not only for himself but also as Agent for and on behalf of the Owner.
(ii) (by clause 20) that the Customer shall save harmless and keep the Company indemnified from and against all relevant liability, costs and expenses.
3. In response to the part 20 claim, Birkart's case is that UNL were simply their (accidental) sub-bailees of the goods, and no standard or other terms applied to or were incorporated or implied into the sub-bailment: see para 31(3)(c) of the re-amended defence in the part 20 proceedings. They have argued, inter alia, that whatever the arrangements between them and UNL as to doing business upon BIFA terms, they did not apply in the circumstances of this case because:
(i) It is not possible for an erroneous or uncontemplated delivery to be within the scope of the agreed terms which the parties must necessarily have agreed should apply to deliveries which were foreseen as being within the scope of such agreement there can be no intention that agreed terms should apply to an event which the parties never intend or contemplate will occur; there is no consensus ad idem with regard to any such event': see para. 31(4)(a) of the re-amended defence in the part 20 proceedings.
(ii) The BIFA Terms do not (on a true construction thereof) have the effect of applying to a mistaken and erroneous delivery: see para. 31(4)(b) of the re-amended defence in the part 20 proceedings.
4. It was ordered that there be a...
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