QUEEN'S BENCH DIVISION
COMMERCIAL COURT
B e f o r e :
____________________
MACIEO SHIPPING LIMITED | Claimant | |
-and- | ||
CLIPPER SHIPPING LINES LIMITED | Defendant | |
M.V."CLIPPER SAO LUIS |
____________________
(instructed by Messrs Ince & Co.) appeared on behalf of the Claimant.
MR. MICHAEL TSELENTIS and MR. JULIAN KENNY (instructed by Messrs Bentleys Stokes & Lowless appeared on behalf of the Defendant.
____________________
Crown Copyright ©
The Hon. Mr. Justice David Steel:
Introduction
The common ground
The cause of the fire
Liability for stowage
8. ...The Captain (although appointed by the Owners) shall be under the orders and directions of the Charterers as regards the vessel's employment and agency; and the Charterers are to load, stow and trim and discharge the cargo at their expense under the supervision and responsibility of the Captain, however this responsibility not to have any effect on the stevedore damage clause...
35. Charterers are responsible for damages to the hull, machinery, equipment caused by stevedores in loading and discharging vessel, only when such damage is duly substantiated by the Master's prompt notice of claim served in writing upon the party responsible and to the Charterers or their agents. For stevedore damage not visible, Charterers are not to be responsible unless notified by Master as soon as possible but not later than on completion of discharge of the cargo in question...
Implied terms
Mr. Rokison for the charterers says that clause 23 says nothing about competent stevedores and submits that this qualification should not be implied. Lord Esher M.R. in Harris v. Best, Ryley & Co (1893) 68 L.T. 76...discussing the various ways in which stevedores may be employed under the terms of the charterparties gave one example:
...the charterer makes a contract with the shipowner or captain that the shipowner or captain shall employ a stevedore, to be appointed or nominated by the charterer. In such a case the shipper nominates a good stevedore, and then leaves him to be the servant of the shipowner, just as if he had been nominated by the shipowner...
The emphasis on the word "good" is mine. Lord Esher M.R.. makes the implication and I have no doubt that I should do likewise. A reasonable shipowner may well be prepared to accept the chance that competent stevedores nominated by the charterer will delay the sailing of his ship by some act of foolishness, but surely none would be prepared to accept the risk attendant upon having thrust upon him the services of incompetent stevedores.
a. Whilst it is true that the duty to load and stow involves a contractual duty of care, it is broken if due care is not in fact exercised whether by the contracting party, his servants or his sub-contractors: see The Apostolis [1999] 2 Lloyd's Rep. 292.
b. Furthermore, I accept the limitation on the master's (and thus the owners') responsibility for damage outlined by Leggatt J. in The Argonaut [1985] 2 Lloyd's Rep. 216 at p.224 to the effect that "a master cannot be said to be responsible for damage which he cannot avoid by the reasonable exercise of his powers of supervision and control."
c. Accordingly, it seems to me to be necessary that the master should be entitled to proceed on the basis that the stevedores furnished by the charterers are competent. It is one thing to supervise, quite another to train.
Competence
a. It is not suggested that the general standards of stevedoring in Rio were such as to preclude the legitimacy of an order to proceed here for cargo operations.
b. There is no direct evidence that the fire was attributable to the actions of an unregistered or inexperienced stevedore or that he was an habitual smoker in the presence of inflammable cargoes.
c. There is no evidence that supervision of the stevedores by the loading officers of the vessel presented any difficulty. The only uncontainerised cotton was stowed in Hold No. 5. The Chief Officer gave a direct order to stevedores to cease smoking on one occasion which instruction was obeyed. He did not report the incident.
Off-hire
15. That in the event of the loss of time from deficiency of men and/or default of crew or deficiency of stores, fire, breakdown or damages to hull machinery or equipment, grounding, detention by average accidents to ship or cargo...or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost...
The owners provide the ship and the crew to work her. So long as these are fully efficient and able to render to the charterers the service then required, hire is payable continuously. But if the ship is for any reason not in full working order to render the service then required from her, and the charterers suffer loss of time in consequence, then hire is not payable for the time so lost. The word "other" in the phrase "or by any other cause preventing the full working of the vessel" in my view shows that the various events referred to in the foregoing provisions were also only intended to take effect if the full working of the vessel in the sense just described was thereby prevented and time was lost in consequence. But if, for instance, the cargo is damaged as a result of an accident, but the vessel's ability to work full is not thereby prevented or impaired, because the vessel in herself remains fully efficient in all respects, the I do not that the charterers bring themselves within the clause.
Dangerous cargo
The Inter-Club Agreement
(8) Cargo Claims shall be apportioned as follows:
...
(b) Claims in fact arising out of the loading, stowage, lashing, discharge, storage or other handling of cargo: 100% Charterers unless the words "and responsibility" are added in clause 8 or there is a similar amendment making the Master responsible for cargo handling in which case: 50% Charterers 50% Owners
(c) ...
(d) All other cargo claims whatsoever (including claims for delay to cargo): 50% Charterers 50% Owners unless there is clear and irrefutable evidence that the claim arose out of the act or neglect of the one or other (including their servants or sub-contractors) in which case that party shall then bear 100% of the claim.
General Average Recoveries.
Counterclaim