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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> J I Macwilliam Co Inc v Mediterranean Shipping Co Sa [2002] EWHC 593 (Comm) (17 April 2002) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2002/593.html Cite as: [2002] EWHC 593 (Comm) |
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QUEEN’S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
J I MACWILLIAM CO INC | Claimants | |
-and- | ||
MEDITERRANEAN SHIPPING CO SA | ||
‘THE RAFAELA S’ | Respondents |
____________________
Mr S. Croall (instructed by Duval Vassiliades) for the Respondents
Hearing date: 25th March 2002
____________________
Crown Copyright ©
Mr Justice Langley:
THE APPEAL
THE AWARD
i) Whether, as the buyers contended, the “straight consigned” Bill of Lading dated 18 December 1989 issued by MSC was a Bill of Lading within the meaning of Section 1(4) of COGSA 1971 (“Issue 1”); and
ii) Whether, as the buyers also contended, the “port of shipment” for the carriage of the goods pursuant to that “Bill of Lading” was a port in the United Kingdom (namely Felixstowe) within Section 1(3) of COGSA 1971 (“Issue 2”). Issue 2 itself depended upon whether there was a single contract of shipment from Durban to Boston or two contracts of carriage from Durban to Felixstowe and Felixstowe to Boston. Neither South Africa or the USA are parties to the Brussels Convention and the Hague Rules scheduled to COGSA 1971.
“THE BILL OF LADING”
Box (2) Consignee: (B/L not negotiable unless “ORDER OF”)
J.I. MacWilliam Company Inc.,
Box 6, New Town Branch,
Boston, Mass. 02258, USA
(6) Vessel ROSEMARY
(7) Port of Loading DURBAN
(8) Port of Discharge FELIXSTOWE
(9) Final Destination (through transport) BOSTON
Freight Payable at DESTINATION
i) If box 5 and/or 9 filled out this is a through Bill of Lading (see clause 3).
ii) Received in apparent good order and condition ......
In WITNESS whereof the number of Original Bills of Lading stated above (3) all of this tenor and date, has been signed, one of which being accomplished, the others to stand void. One of the Bills of Lading must be surrendered duly endorsed in exchange for the goods or delivery order.
“Clause 1:
1 PARAMOUNT CLAUSE ..... this Bill of Lading shall have effect subject to the ..... Hague Rules ........ the Hague Rules shall not apply where ....... this bill of lading is subject to any compulsory applicable enactment, including Hague-Visby Rules ... If goods are shipped to or from the United States, this bill of lading shall be subject to US Carriage of Goods by Sea Act 1936.
Clause 3:
3. SUBSTITUION OF VESSEL, THROUGH TRANSPORT, TRANSSHIPMENT AND FORWARDING.
The carrier agrees to carry the goods from the Port of Loading to the Port of Discharge, and shall have the right at its sole discretion to substitute other vessels, feederships, lighters or other modes of transport for the vessel named herein ... If boxes 5 and/or 9 are filled out, the carrier will, acting as the shipper’s agent, only arrange for transport of the cargo by other carriers from the place of origin to Port of Loading and/or from Port of Discharge to destination ... It is expressly understood that the Carrier’s liability as “carrier” applies only from the Port of Loading to Port of Discharge under this B/L and only while the goods remain in its actual custody and control.......
Clause 21:
21 CLAIMS VALUATION, PACKAGE LIMITATION, TIME-BAR. ... In case goods are shipped to or from the United States, the carrier’s liability shall be limited to $500 per package or customary freight unit, unless excess value is inserted on the face hereof and extra charge is paid.....”
THE CARRIAGE
THE SUBMISSIONS
i) The contract of carriage contained in or evidenced by the Bill of Lading terminated at Felixstowe.
ii) A fresh bill of lading ought to have been issued in respect of the Felixstowe-Boston leg of the voyage.
iii) The bill of lading would have been issued in the UK.
iv) Accordingly, the Port of shipment was Felixstowe and not Durban and pursuant to Section 1(3) of COGSA 1971 the Rules compulsorily applied to the carriage.
i) A straight consigned bill of lading is not a bill of lading within Section 1(4) of COGSA 1971. The Rules were not, therefore, compulsorily applicable to the Bill of Lading nor would they have been applicable to a fresh bill of lading had one been issued in relation to the Felixstowe-Boston leg.
ii) The whole voyage from Durban to Boston was governed by one contract of carriage, namely that contained in or evidenced by the Bill of Lading. Accordingly, the port of shipment was Durban and not Felixstowe.
THE REASONS FOR THE AWARD
i) The Bill of Lading was non negotiable;
ii) It was not therefore a document of title in the accepted sense;
iii) The form of the Bill of Lading used was designed for various circumstances including when the Bill was to be negotiable and when it was to be non negotiable. The form of the Bill therefore had to be construed in the light of the particular circumstances of each case and in some circumstances parts of the form would have to be read as if the words “if applicable” had been inserted;
iv) The requirement that delivery be made against the Bill and only against the Bill in the printed language on the front of the Bill was intended for use when the Bill was negotiable and was not applicable when the Bill was non negotiable as in such a case the carrier was plainly obliged to the named consignee and only that person if he was to comply with the contract;
v) The Bill in this case was straight consigned and hence was not a Bill of Lading under the 1971 Act.
i) The Bill of Lading covered the entire shipment from Durban to Boston and requirement shipment for the entirety of the passage to Boston;
ii) The Bill contained the contract between shipper and carrier;
iii) The terms of the Bill required MSC to carry the cargo themselves as far as Felixstowe and then gave them the option to use another carrier for the balance of the shipment. If they did not use another carrier and merely completed the carriage themselves then no fresh contract or shipment arose.
ISSUE 1
“nothing in this section shall be taken as applying anything in the Rules to any contract for the carriage of goods by sea, unless the contract expressly or by implication provides for the issue of a bill of lading or any similar document of title”
“the Rules shall have the force of law in relation to - (a) any bill of lading”
“Article I ... (b) ‘Contract of carriage’ applies only to contracts of carriage covered by a bill of lading or any similar document of title....
Article II ... under every contract of carriage of goods by sea the carrier, in relation to loading, handling, stowage, carriage, custody, care and discharge of such goods shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth ......
Article III Rule 7 .... the bill of lading to be issued by the carrier .... to the shipper shall, if the shipper so demands, be a ‘shipped’ bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall render the same against the issue of the ‘shipped’ bill of lading.”
“it also seems to me plain that the expression bill of lading as used in both section 1(4) of the COGSA 1971 and in Article 1(b) of the Rules set out in the Schedule thereto must refer to a negotiable or transferable document of title. This is plainly what Lord Justice Bingham thought, and in my view the language used, with its reference to any similar document of title, does not readily admit of any other construction.”
ISSUE 2
CONCLUSION