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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C V Scheepvaartonderneming Flintermar v Sea Malta Company Ltd  EWCA Civ 17 (25 January 2005)
Cite as:  EWCA Civ 17
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London County Court, Mercantile Court
His Honour Judge Hallgarten QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
SIR MARTIN NOURSE
| C. V. Scheepvaartonderneming Flintermar
|- and -
|Sea Malta Company Ltd
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Kimbell (instructed by Messrs Clyde & Co) for the Respondant
Crown Copyright ©
Lord Justice Rix:
The parties and the vessel
The trade and the accident
1. Containers on deck would be discharged first.
2. Pontoons would be opened to the extent that it was necessary to access containers below deck.
3. The containers below deck would be discharged.
4. Containers would be loaded into the hold.
5. The pontoons would be closed.
6. Any containers to be placed on deck would be loaded last.
"…as I see it, the upshot of that accord was that there was no question of stevedores' role changing – of stevedores being Charterers' contractors for some purposes and Owners' for others. I believe that, as between Owners and Charterers (Owners, of course not being privy to the actual arrangements made by Charterers with shipping lines or others), stevedores remained contractors of Charterers throughout. The consequence of this, as I see it, is that in respect of the removal and replacement of pontoons by the shore-crane, Owners were indeed providing customary assistance in cooperating with those actually conducting the operations. In the present case, that cooperation was given by the vessel adopting the slings method of attaching the baby pontoon to the spreader with the Chief Officer's involvement, including, of course, detachment of slings once the pontoon was at rest."
"This was not a case of the Chief Officer missing his footing or of him being disturbed by some minor movement of the pontoon at a time when it had yet to be lodged firmly in place; what caused him to fall was the inexplicable heave of the crane upwards when, so far as one is aware his footing was secure, but which resulted in a fall being inevitable. In those circumstances, I am firmly of the view that the effective or proximate cause of the Chief Officer's injury was the negligent act of the stevedores. But for that inexplicable act the Chief Officer, who so far as I am aware was otherwise going about his task in a sensible fashion, would not have suffered any injury."
The terms of the charter
"4. Charterers to Provide
Whilst on hire the Charterers to provide and pay for all coals, including galley coal, oil-fuel, water for boilers, port charges, pilotages (whether compulsory or not), canal steersmen, boatage, lights, tug-assistance, consular charges (except pertaining to the Master, Officers and Crew), canal, dock and other dues and charges, including any foreign general municipality or state taxes, also all dock, harbour and tonnage dues at the port of delivery and re-delivery…(unless incurred through cargo carried before delivery or after re-delivery), agencies, commissions, also to arrange and pay for loading, trimming, stowing (including dunnage and shifting boards, excepting any already on board), unloading, weighing, tallying and delivery of cargoes, surveys on hatches, meals supplied to officials and men in their service and all other charges and expenses whatsoever including detention and expenses through quarantine (including cost of fumigation and disinfection).
All ropes, slings and special runners actually used for loading and discharging and any special gear, including special ropes, hawsers and chains required by the custom of the port for mooring to be for the Charterers's account. The vessel to be fitted with winches, derricks, wheels and ordinary runners capable of handling lifts up to 2 tons.
The Master to prosecute all voyages with the utmost despatch and to render customary assistance with the Vessel's crew. The Master to be under the orders of the Charterers as regards employment, agency or other arrangements. The Charterers to indemnify the Owners against all consequences or liabilities arising from the Master, Officers or Agents signing Bills of Lading or other documents or otherwise complying with such orders…
13. Responsibility and Exemption
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 Charter or by improper or careless bunkering or loading, stowing or discharging of goods or any other improper or negligent act on their part or that of their servants.
Clause 30 – ASSISTANCE BY CREW
Timecharter hire includes rendering customary assistance by the officers and crew same as when trading for own account inter alia:
1) opening and closing of hatches,
2) removing and/or replacing of beams,
3) shifting operations and docking,
5) supervision of loading and discharging,
6) to prepare vessel's holds prior to arrival in port or commencement of operations.
Above services to be rendered any time day or night, Saturdays, Sundays and Holidays included, provided port regulations and/or weather conditions permit, free of charge to Charterers.
Clause 31 – LASHING AND UNLASHING
Officers and crew to secure and/or unsecure, lash and/or unlash containers, place and remove stacking cones and bridge fittings during loading and/or discharging. Master to be responsible for and maintain tight and correct lashing of containers during navigation. Above services to be rendered any time of day or night, Saturdays, Sundays and Holidays included, provided port regulations and/or weather conditions permit, free of charge to Charterers.
Owners to supply all necessary fittings and full set of lashing/securing material to safely load and carry a full cargo of containers. Charterers to redeliver vessel with same, fair wear and tear excepted…
Clause 38 – STEVEDORES' DAMAGE
Should any damage be caused to vessel or her fittings by the stevedores, the Master shall endeavour to obtain repairs from the stevedores themselves and will report to Charterers and port agents within twentyfour hours from occurrence (but in any case before vessel sails from port where damage incurred), Master to endeavour to obtain stevedores' written acknowledgment of damage caused and will arrange together with agents for a survey of damages, failing which Charterers shall not be liable for the repair costs.
Clause 48 – CHARTERERS' OBSERVER
Charterers have the right to place on board their own observer. Any advice, accommodation or assistance that the Charterers' observer may render with regard to the loading/ discharging operations of the vessel, is given to assist the Master. Neither the observer nor the Charterers are to be held responsible in any way whatsoever for the consequences of such advice, recommendations or assistance; it being clearly accepted and understood by the Charterers that the full and ultimate responsibility shall always remain with the Master of the vessel. Neither the observer nor the Charterers shall have any liability in respect of any claim or demands made by third parties in consequence of the above and the Owners shall the observer and/or the Charterers harmless for any such claim or demands. Loading, stowage, discharging to be made at Owners/Master's decision."
The parties' submissions
"In the circumstances it is unnecessary to decide whether Mr Goff is right in his submission that the term "servants" extends no further than that class of person for whom the time charterers are vicariously responsible, although I incline to think that it is so limited."
"Having regard to the obligations imposed on the charterers by, in particular, cl. 4, to which I need not refer in detail but which requires the charterers to provide and pay for many things including bunkers and loading and discharging, I doubt whether the fourth sentence of cl. 13 imposes greater liabilities than would in any event fall upon the charterers either under the charter or at common law."
"In my opinion, by their contract the charterers have undertaken to load, stow, and trim the cargo, and that expression necessarily means that they will stow with due care."
The judge's reasoning
Discussion (1): the effect of the charter terms
"Notwithstanding anything to the contrary contained herein and particularly provisions of Clauses Nos. 9 and 13…the Owners to be responsible…"
"and Charterers are to load stow trim and discharge the cargo at their expense under the supervision and responsibility of the Captain…"
Discussion (2): the application of the charter terms to the facts
"What is the reality of the position in the present case? The reality, as I see it, is this: the charterers were responsible for getting that cargo out of the ship and for paying for the necessary labour to get that cargo out of the ship. It is true that, under this form of charter, so long as the ship had that cargo on board, the ship was under a duty to take all proper care of the cargo (subject to all relevant exceptions in the charter-party), a duty which would no doubt include an obligation to protect the cargo against, for example, damage by rain. But that is not conclusive. The point is this: Is the operation, the cost of which the charterers seek to debit against the owners, either part of discharging the cargo, or so closely associated with the operation of discharging the cargo that it can properly, bearing in mind the way in which words such as "loading" and "discharging" have been construed by the Courts over the years, be treated for all practical purposes as part of that discharge so that the cost falls upon the charterers? In my judgement the owners' contentions here are correct. When one looks at the whole of the circumstances and the facts found in the special case and those in the supplemental document, R.1, I think that the work was done and charged for as part of the operation of discharge."
Sir Martin Nourse:
Lord Justice Waller:
1. The appeal from paragraph 1 of the order of His Honour Judge Hallgarten QC dated 30th March 2004 be allowed and the cross appeal in respect thereof be dismissed.
2. Judgment be entered in favour of the appellants in the principal sum of 220,924.46 euros and 26,284.58 euros, together with interest on those sums up to the date of judgment at 31,808.13 euros.
3. Paragraph 2 and 3 of the order of His Honour Judge Hallgarten QC be set aside and the following orders as to costs to apply instead; (a) the respondents shall bear and pay their own and the appellants' costs of the action, including of this appeal, such costs to be subject to detailed assessment if not agreed; (b) the respondents to make a payment on account of the appellants' costs of this action in an amount of £50,000 within 14 days hereof; (c) the respondents shall repay to the appellants within 14 days hereof the sum of £30,000 paid by the appellants on 13th April 2004 in respect of the respondents' costs of the action, together with interest theron at the rate of 5.75 per cent from the date of payment, being £1,361.10 until the date of repayment.
4. The respondents shall within seven day hereof return to the appellants the original letter of undertaking.
5. Permission to appeal to the House of Lords be refused.