QUEENS BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A DEPUTY JUDGE OF THE QUEEN'S BENCH DIVISION
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JINDAL IRON AND STEEL CO LTD | ||
- TCI TRANS COMMODITIES AG | ||
HIANSA SA | Claimants | |
-and - | ||
ISLAMIC SOLIDARITY SHIPPING COMPANY JORDAN INC | ||
ISLAMIC SOLIDARITY JORDAN INC | Defendants |
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Timothy Young QC and Sudhanshu Swaroop (instructed by More Fisher Brown) for the
Defendants
Hearing dates: 27 and 28 May 2002
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Crown Copyright ©
INTRODUCTION
(I) Whether on a true construction of (a) the charterparty dated 4th December 1997 and (b) the contracts of carriage contained in or evidenced by the bills of lading numbered 1 and 2 dated 2nd January 1998 the Defendants are under any liability for any damage to the cargo caused as a result of loading, stowage, laying of dunnage, securing or discharging.
(ii) If the Defendants are liable to either the First Claimants or the Third Claimants whether the Second Claimants are liable to indemnify the Defendants against such liability.
THE CHARTERPARTY
5,500 metric tonnes, 5 percent more or less in Charterers' option, Galvanised Steel coils (maximum pieceweight 12 tons), as full or part cargo in Owners' option. Cargo under this charterparty to be separated by vessel's holds. In case same is not possible, any artificial separation, if necessary, to be arranged by Owners at their time risk and expense. Coils are 6-12 tons in weight with average about 9 tons. Height 1.250 metres - inner diameter 0.5 metres/outer diameter 1.35 metres.
Freight to be paid at and after the rate of US$ .... per metric ton F.I.O.S.T. - lashed/secured/dunnaged - …
Charterers to have full use of all vessel's gear to assist in loading and discharging cargo. Vessel's gear should only be considered as supplementary to the shore gear. Shore winch/cranemen to be used at all times.
Shipper/Charterers/Receivers to put the cargo on board, trim and discharge cargo free of expense to the vessel. Trimming is understood to mean levelling off the top of the pile and any additional trimming required by the Master is to be for Owners' account.
It seems to me that the respondents only need to suggest a reasonable interpretation of this clause which would be consistent with the common law duty, because if the common law is to be altered by the terms of the charter-party, that must be done by a clause which admits of no other reasonable interpretation.
... at common law the task of loading from ship's rail, stowing and discharging overside is the sole responsibility of the shipowner. However either or both of the duties of (a) arranging for these processes to be carried out and (b) paying for them to be carried out may be transferred by contract to the charterers. So too can liability for breach of the duty of care in carrying out these processes, whether or not either or both the duties of arranging and paying for their performance have been so transferred.
It would be an odd state of things if one were to hold that a shipowner who has no contract whatever with the stevedore and who cannot say to the stevedore: You have broken your contract with me, and therefore I will not have you any longer in my vessel; and who has no control over what is to be paid to the stevedore, should be responsible for the failure of the stevedore to do his duty.
THE BILL OF LADING
Shippers/charterers/receivers to put the cargo on board, lash, secure and dunnage and discharge the cargo free of expense to the vessel.
THE HAGUE RULES POINT
Although the text of a convention must be accorded primacy in matters of interpretation, it is well settled that the travoaux preparartories of an international convention may be used as "supplementary means of interpretation"; compare article 31 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. Following Fothergill v Monarch Airlines, I would be quite prepared, in an appropriate case involving truly feasible alternative interpretations of a convention, to allow the eveidence contained in the travaux preparatoires to be determinative of the question of construction. But that is only possible where the court is satisfied that the travaux preparatoires clearly and indisputably point to a definite legal intention; see Fothergill v Monarch Airlines Ltd. per Lord Wilberforce, at p.278C. Only a bull's eye counts. Nothing less will do.
So far I have laid stress on the advantages the shipowners gain under the Rules. On the other hand, the shipowner assumes, under Article III, the definite obligation to provide for the proper and careful handling, loading, stowage, carriage, custody, care and unloading of the goods throughout the period covered by the Rules - that is, from loading to discharge - tackle to tackle. The liability is only qualified by the terms of Article IV, which exempts the shipowner from liability for the perils there defined, including negligence in the navigation or in the management or in the management of the ship. The Rule will place on the shipowners full responsibility for damage resulting within the period in question from bad stowage or from theft and the like. It is a substantial extension of the shipowners' liability, but it does not go, except on one point with which I will deal, beyond the obligations imposed by the Harter and Dominion Acts.
... in so far as it [the draft rules] deals with the handling, receipt, custody, stowage and delivery of the goods, it makes a uniform law obligatory in relations between the shipowner and the holder of the bill of lading.
Article 3(2) contained an essential clause highlighting that the carrier, except as provided for in article 4, was responsible for seeing that everything required for loading, handling, stowage, carriage, custody and unloading was provided for the goods to be carried. And the inclusion of every clause permitting the shipowner, without incurring responsibility, to fail in this essential duty of overseeing the preservation of the goods from the point of view of successful stowage, loading, and unloading was null and void. That was the main element of the convention because it was in this way that, in the past, the use of immunity clauses had given cause for the greatest criticism. The result had been the creation of different sorts of bills of lading that still bore the form, but whose content was completely destroyed by the force of the immunity clauses.
THE INDEMNITY CLAIM
All liability of charterer shall cease on completion of loading except Charterers to remain responsible for payment of freight, deadfreight and demurrage if any. Deadfreight/demurrage to be settled after completion of the voyage and receipt of loading and/or discharging documents.
The Captain to sign Bills of Lading at any Freight required by Charterers, not less than Chartered rate. Charterers have the right to sub let this Charter Party to others in full or part, at any rate of freight without prejudice to this Charter, they remaining fully responsible for due fulfilment of the same.
CONCLUSIONS
1 (a) No.
(b). No, so long as the alleged damage was not caused by acts or omissions of the Defendants, their servants or agents.
2. The question does not arise.