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Ca Venezolana De Navegacion v. Bank Line (The "Roachbank")

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 27 July 1987
Citation / Document Symbol [1987] 2 Lloyd's Rep 498
Cite as Ca Venezolana De Navegacion v. Bank Line (The "Roachbank"), [1987] 2 Lloyd's Rep 498, United Kingdom: High Court (England and Wales), 27 July 1987, available at: http://www.refworld.org/cases,GBR_HC_QB,3ae6b68818.html [accessed 18 August 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

CA VENEZOLANA DE NAVEGACION v BANK LINE (THE "ROACHBANK")

QUEEN'S BENCH DIVISION (COMMERCIAL COURT)

[1987] 2 Lloyd's Rep 498

Hearing Date: 13, 27 July 1987

27 July 1987

Index Terms:

Charter-party (Time) -- Off-hire -- Vessel embarked refugees -- Port authorities refused to allow vessel to berth without bank guarantees -- Whether vessel off-hire -- Whether vessel prevented from full working by presence of refugees.

Held:

By a time-charter dated May 4, 1979 the owners let their vessel Roachbank to the charterers for a time-charter trip with delivery at Singapore and re-delivery at North Coast South American/Caribbean. The charter was in the New York Produce Exchange form which provided inter alia:

15. That in the event of loss of time . . . by any other cause whatsoever preventing the full working of the vessel the payment of hire . . . shall cease for the time thereby lost.

On May 16, 1979 Roachbank was delivered at Singapore into the liner service of the charterers. She loaded some cargo and sailed for Taiwan. There she was to load at Kaohsiung and Keelung cargo bound for South American ports.

On May 23, in the South China Sea the vessel sighted and closed upon a small boat in a parlous state in which were crammed 293 Vietnamese refugees in a pitiful condition. Acting in accordance with the centuries-old tradition of seafarers and in compliance with s 10 of the Maritime Conventions Act, 1911 the master embarked the refugees and continued the voyage to Kaohsiung.

The vessel arrived off Kaohsiung at 11.45 hours on May 25. The authorities refused to allow the refugees to land there and required Roachbank to remain outside the port. The authorities were however prepared to allow Roachbank into the port provided that the owners undertook that all the refugees would remain on the vessel throughout her time there and that they would leave with her. The owners were to be liable for the financial consequences of any breach of that arrangement and were to put up a bank guarantee in support of that undertaking.

On June 1 the authorities granted permission for the vessel to enter the harbour and by 08 00 hours on June 3 the vessel was ready to berth.

The charterers relied on cl 15 contending that the vessel was off-hire from May 25 to June 3.

The dispute was referred to arbitration and the majority of the arbitrators decided that the vessel remained on hire throughout the dispute.

The charterers were given leave to appeal against the award on the following point of law:

Whether upon . . . the true construction of Clause 15 of the charterparty . . . Roachbank was off hire for the period from 1145 hours on 25th May 1979 to 0800 hours on 3rd June 1979.

-- Held, by QB (Com Ct) (WEBSTER, J), that (1) for the clause to be capable of applying at all the charterers had to show that the vessel was in herself or as a vessel not fully efficient in all respects; only if she was not fully efficient and able to render the service then required would it be necessary to consider if she was prevented from being so by a relevant clause (see p 504, col 1);

-- The Mareva AS, [1977] 1 Lloyd's Rep 368, considered.

(2) the question which had to be asked was whether the vessel was fully efficient and capable in herself of performing the service immediately required by the charterers; if the answer was in the negative and where the off-hire clause contained the word "whatsoever" then unless it could be suggested that the words "any other cause whatsoever" were to be limited in some way it should not be necessary to consider the particular cause which prevented the full working of the vessel (see p 507, col 1);

(3) the arbitrators found inter alia that the presence of the refugees did not prevent the vessel from being fully worked had port facilities been made available and the number of persons on board did not impair the full working of the vessel as a physical reality; the majority arbitrators implicit conclusion that the refusal by the Taiwanese authorities to allow the vessel into Kaohsiung did not prevent her full working was a conclusion which could not be said to be wrong since it was a conclusion of fact or mixed fact and law which any reasonable tribunal could have reached having properly directed itself as to the meaning of the expression "preventing full working"; there was no reason for concluding that their decision was wrong and the appeal would be dismissed (see p 508, cols 1 and 2):

-- The Apollo, [1978] 1 Lloyd's Rep 200; The Aquacharm, [1982] 1 Lloyd's Rep 7 and The Maestro Giorgis, [1983] 2 Lloyd's Rep 66, considered.

Cases referred to in the Judgment:

Actis Co Ltd v The Sanko Steamship Co Ltd (The Aquacharm), (CA) [1982] 1 Lloyd's Rep 7; [1982] 1 WLR 119; [1980] 2 Lloyd's Rep 237;

Belcore Maritime Corporation v F Lli Moretti Cereali SpA (The Maestro Giorgis), [1983] 2 Lloyd's Rep 66;

Court Line Ltd v Dant & Russell Inc, (1939) 64 Ll L Rep 212; Good Helmsman, The (CA) [1981] 1 Lloyd's Rep 377;

Mareva Navigation Co Ltd v Canaria Armadora SA (The Mareva AS), [1977] 1 Lloyd's Rep 368;

Sidermar SA v Apollo Corporation (The Apollo), [1978] 1 Lloyd's Rep 200.

Introduction:

This was an appeal by the charterers, CA Venezolana de Navegacion SA, from the majority arbitration award in the dispute between the charterers and the owners, Bank Line, concerning the meaning of the off-hire clause in the charter-party.

The further facts are stated in the judgment of Mr Justice Webster.

Counsel:

Miss Hilary Heilbron, QC for the charterers; Mr Nicholas Legh-Jones for the owners.

Judgment-READ:

Judgment was reserved. Monday July 27, 1987

PANEL: Mr Justice Webster

Judgment By-1: Mr Justice WEBSTER

Judgment One:

Mr Justice WEBSTER: This is an appeal by leave of Mr Justice Hobhouse from the award of Mr Michael Mabbs and Mr Robert Hyde, Mr Agay Khandwala dissenting, dated September 15, 1986, which raises the meaning of the "off-hire" cl 15 of the New York Produce Exchange form of charter-party. The facts, which I take from the reasons for the award of the majority of the arbitrators, are as follows.

By a time charter-party dated May 4, 1979, the respondent owners agreed to let and the appellant charterers agreed to hire the motor vessel Roachbank for a time charter trip with delivery at Singapore and redelivery at North Coast South American/Caribbean, on terms and conditions contained therein. On May 16, 1979, Roachbank was delivered at Singapore into the liner service of her time charterers. She loaded some cargo and sailed for Taiwan. There she was to load at Kaohsiung and Keelung with cargo bound for South American ports.

On May 23, in the South China sea, Roachbank sighted and closed upon a small boat in a parlous state in which were crammed 293 Vietnamese refugees in a pitiful condition. Acting in accordance with the centuries-old tradition of seafarers and in compliance with s 10 of the Maritime Conventions Act, 1911, the master embarked the refugees and continued the voyage to Kaohsiung, arriving off there at 11 45 hours on May 25. The authorities at Kaohsiung, however, refused to allow the refugees to land there, and required Roachbank to remain outside the port. Later, those authorities were prepared to allow Roachbank into the port provided the owners undertook that all the refugees would remain on the ship throughout her time there and that they would leave with her. The owners were to be liable for the financial consequences of any breach of that arrangement and were to put up a bank guarantee in support of their undertaking. On June 1, being assured that the undertaking and guarantee would be provided, the authorities granted permission for the vessel to enter the harbour. By 08 00 hours on June 3, the vessel was ready to berth.

Clause 15 provided:

That in the event of a loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting, or by any other cause whatsoever preventing the full working of the vessel, the payment of hire and overtime shall cease for the time thereby lost.

In reliance on that clause, the charterers contended before the arbitrators that the vessel was off hire from 11 45 hours on May 25, 1979 to 08 00 hours on June 3, 1979. The majority of the arbitrators decided that the vessel remained on hire throughout the whole period in dispute; and the appellant charterers were given leave to appeal against their award on the following point of law:

Whether upon the facts found and the true construction of Clause 15 of the charter-party . . . the Roachbank was off hire for the period from 11 45 hours on 25th May 1979 to 08 00 hours on 3rd June 1979.

The majority arbitrators related the reasons for their award to six reasons given by Mr Justice Lloyd (as he then was) for upholding the award of arbitrators in Belcore Maritime Corporation v F Lli Moretti Cereali SpA (The Maestro Giorgis), [1983] 2 Lloyd's Rep 66. Although it will be necessary to return to this case later in this judgment, it is convenient to set out the substance of five of those six reasons at this stage so that the reasoning of the arbitrators in this case can be understood. And in order to understand the first two of Mr Justice Lloyd's five reasons, it is necessary to note that cl 15 in its original unamended form did not contain the word "whatsoever" (after the words "any other cause") which was contained in cl 15 in The Maestro Giorgis and in the present case.

At p 68-69 of the report Mr Justice Lloyd said:

(1) The addition of the word "whatsoever" in cl 15 excludes the ejusdem generis rule . . .

(2) Where, as here, the word "whatsoever" is added, any cause may suffice to put the vessel off hire, whether physical or legal; the question in each case is whether it prevents the full working of the vessel for the service immediately required.

(3) In deciding whether a cause prevents the full working of a vessel, distinction is drawn between causes which are totally extraneous such as the boom in Court Line Ltd v Dant & Russell Inc and causes which are attributable to the condition of the ship itself, such as engine breakdown.

(4) Sometimes, however, there is a combination of causes . . . it may be necessary to go behind the immediate cause to find the underlying cause . . .

(5) In deciding whether the cause of prevention is totally extraneous, one must have regard not only to the physical condition of the vessel, but also . . . to her qualities and her characteristics . . . her history and ownership.

The reasons given by the majority of the arbitrators for deciding that the vessel was on hire throughout the disputed period are given at pp 16-20 of their award, and deserve to be quoted in full. Before quoting those reasons, however, it is necessary to quote an earlier passage from their reasons at p 8 where they say:

Around this time it also became apparent that the Kaohsiung stevedores would require there to be no refugees on deck during cargo operations. Mr Patch, who had been at sea for a number of years and had a Master's Certificate, stated that, in his opinion, it would have been possible to work cargo in the circumstances. The dissenting Arbitrator, Mr Khandwala, felt that this was most unlikely and that, even if it were to be possible, the delays which would be incurred would be unacceptable to the charterers who were running a liner service on a tight schedule. The other two Arbitrators felt that whilst the cargo work might be somewhat hampered and modestly delayed initially whilst the refugees were herded to non-working areas, they did not envisage inability to perform cargo work.

At pp 16 to 20 they say:

It is probably fair to say that in our deliberations we eventually came to concentrate as much on the MAESTRO GIORGIS case as any other, it being not only the most recent but it contains six reasons set out by Lloyd J in such a way that we are thereby given a framework for our own considerations.

Firstly, we have proceeded on the basis that the word "whatsoever" excludes the ejusdem generis rule.

Next we addressed ourselves to whether or not there was, in this case, a cause which prevented the full working of the ROACHBANK for the service immediately required. That service was plainly to enter Kaohsiung and load cargo. She was prevented from doing so by the attitude of the Taiwanese authorities to the refugees on board. The ship herself was, in the opinion of the majority and as we have indicated above, capable of working cargo, and we do not regard the hindrance of the number of persons on board as impairing "the full working of the vessel" as a physical reality. At most we would anticipate some delays of no great consequence, principally whilst the refugees were marshalled away from the immediate working area. Insofar as the stevedores said they would not work the vessel with the refugees still on board, this was as much an attitude taken by those ashore as was the position taken by the Taiwanese authorities.

The attitude of the Taiwanese authorities expressed as a refusal to allow the vessel into Kaohsiung when she first arrived seems to us to have been an extraneous cause, as discussed in the MAESTRO GIORGIS case. However, (and this is why we are dealing with a borderline matter) here is a case when the extraneous cause relates to this particular ship, unlike, say, the boom in the Yangtse River, which entrapped the ERRINGTON COURT (Court Line v Dant & Russell Inc), but which was erected for the purpose of excluding Japanese vessels rather than detaining any vessel already in the river.

The tribunal were unable to agree a common view and Mr Khandwala's dissenting opinion is attached. The majority hold that although the refugees were present on the vessel, they did not form part of the essential entity of it which embraces the physical structure, the crew and its health, the history of the vessel, its own qualities and characteristics, its certificates and its freedom from arrest. We do not suppose our list to be exhaustive, but it is the best we can devise to delineate what one might term as the personal characteristics of the vessel (being the antithesis of the extraneous matters) which are apt, in our view, to bring about an off-hire situation.

It may be that there is a thread, certainly not the only one, that links the causes by which the vessel may lawfully be placed off hire by a time-charterer under Clause 15 as quoted above. Perhaps they are all matters for which the owners are commercially or legally accountable. If that is so, then certainly they are not accountable for their Master chancing upon souls at sea in danger of perishing and performing the humane act of rescue clearly demanded, and for which an express liberty is given in the charterparty.

Thus we, in the majority, believe that behind the attitude of the Taiwanese authorities lay a second extraneous cause, namely the presence of the refugees on board the ship.

We were interested that the able counsel for the respondents, who agreed that the vessel had properly acquired the batch of refugees, sought to persuade us that they thus became part of her history and her characteristics. The majority thought neither of these phrases apt. It seems to us that what is meant by the (relevant) history of a vessel is best illustrated by an example, namely a vessel that has, say, called at an Israeli port at some time in the past. There may be no tangible relic of that port call (if the log books have gone) and yet in the eyes of some Arab nations an historical taint has attached. The past port call is part of the vessel's history.

Quite apart from the obvious semantic difficulty of treating a contemporaneous event as history, any such approach would mean that every event interrupting the commercial service of the vessel could be deemed as history of the ship and thus a proper cause for which the vessel might be placed off hire. That cannot be right.

We found it even less persuasive to regard refugees as a characteristic of the vessel rather than a crucial feature of the situation in which she found herself. The moment before the refugees boarded there was no such "characteristic" of the vessel, nor did the "characteristic" persist beyond 25th June when the boat people disembarked. It is very difficult, in the majority opinion, to elevate an unexpected event of short duration to a "characteristic".

The majority concluded that the finding of the refugees was "extraneous" and we did not see how it can be argued that by coming aboard ROACHBANK or by the effluxion of time (there was never any suggestion by CAVN that Bank Line had been dilatory in trying to get the refugees off the ship) or by the subsequent attitude of the Taiwanese authorities, an "extraneous" event can therefore change its character or history and become an "internal" one.

Finally, we have to say that we did not think the respondents were able to displace the strong contention by the claimants that the vessel was always capable, as a vessel, of performing the service immediately required by the charterers and was not prevented by the presence of the refugees from being fully worked, had port facilities been made available to them to do so.

Accordingly, the majority do not consider that the respondents have brought themselves clearly within Clause 15 and hence hold that the vessel remained on hire throughout the whole period in dispute.

I have quoted these reasons in full partly because they seem to me to demonstrate the difficulty which arbitrators are bound to have in distinguishing between totally extraneous causes on the one hand and the vessel's history or characteristics on the other. I will attempt to summarize those reasons later in this judgment.

It was made plain to the arbitrators, as it was to me, that the charterers did not criticize the master, or through him the owners, in the least for having rescued the boat people from the high seas.

Miss Heilbron, on behalf of the charterers, submits that their appeal should be allowed because the majority of the arbitrators should have decided that the full working of the vessel for the service immediately required of her had been prevented by the presence of the refugees on board, which had become a characteristic of the vessel or part of her history.

Mr Legh-Jones, while submitting that the decision of the majority of the arbitrators was right, also, with diffidence, asks me, with even more diffidence, to disagree with the third, fourth and fifth reasons of Mr Justice Lloyd in The Maestro Giorgis. He submits that they are not supported by earlier decisions on the same clause, and that the principles derived from those earlier decisions are clear and easily applied, whereas the distinction between wholly extraneous causes and other causes is unclear and difficult to apply.

If no gloss had been put upon the clause, other than that the reference to "the full working of the vessel" was to be construed as a reference to "the full working of the vessel for the service immediately required" (as to which there is no argument), I would have thought that the application of the clause prima facie involved only one matter of fact, namely whether the full working of the vessel, understood in that way, had been prevented. For in a clause which contains the added word "whatsoever", prima facie any cause constitutes a sufficient cause. But not only Mr Justice Lloyd in The Maestro Giorgis, but also the Courts which decided the earlier cases, have put other judicial glosses upon the clause. It is therefore necessary to consider those earlier cases and to identify the principles which are to be derived from them.

The charter-party in Court Line Ltd v Dant & Russell Inc (1939) 64 Ll L Rep 212 contained the unamended cl 15, that is to say, without the word "whatsoever". A boom placed across the Yangtse River prevented the vessel proceeding from Wuhu down the river to Shanghai to unload the cargo. Mr Justice Branson upheld the umpire's award that the contract between the owners and charterers was frustrated; but at p 219 in a short obiter dictum he considered cl 15 and said:

If there was no frustration the contract stands and hire is payable unless there is anything in the contract to prevent it becoming payable. The charterers rely on Clause 15 for this. The argument depends upon the delay caused by the boom coming within the words "any other cause preventing the full working of the vessel". In my opinion it does not . . . The words are not apt to cover a case where the ship is in every way sound and well found, but is prevented from continuing her voyage by such a cause as this.

The words to be noted are "the ship is in every way sound and well found".

There was also an unamended cl 15 in the charter-party in Mareva Navigation Co Ltd v Canaria Armadora SA (The Mareva AS), [1977] 1 Lloyd's Rep 368. Many questions were stated by the arbitrators in the special case; but one of them concerned a dispute as to whether the vessel was off hire during a period when she was unable to discharge, or only able to discharge at a slower rate, due to damage to the cargo caused by a breach of the charter-party on the part of the owners. Mr Justice Kerr (as he then was) having referred to that dispute as raising "a well known problem under a widely used form of charter", and having considered arguments going to words in the clause with which we are not here concerned, at pp 381-382 continued:

Finally, they (the owners) say that the words "or by any other cause . . ." qualify all the preceding events and are (in effect, though inaccurately) to be read ejusdem generis with them, as was said in the American case just cited. They say that what must be prevented is the working of the vessel as a vessel; that the question is not whether the charterers can make full use of the vessel in one or more of the events mentioned in the clause, but whether or not the working of the vessel is in itself in some way impaired. In this context they strongly rely on the finding in par (viii) quoted above.

There is not much direct assistance to be gained from the authorities. In the American case referred to above it was clear that there was no accident of any kind; this was the real ratio decidendi. There is no indication that the present point was argued in another recent American case. The Heinz Horn [1970] 1 Lloyd's Rep 191, and I therefore do not think that it is of any real assistance to the charterers. I think that one must consider the construction of the clause and then see how this fits in with such other authorities as may provide some guidance.

It is settled law that prima facie hire is payable continuously and that it is for the charterers to bring themselves clearly within an off-hire clause if they contend that hire ceases. This clause undoubtedly presents difficulties of construction and may well contain some tautology, eg in the reference to damage to hull, machinery or equipment followed by "average accidents to ship". But I think that the object is clear. 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 the result of an accident, but the vessel's ability to work fully is not thereby prevented or impaired, because the vessel in herself remains fully efficient in all respects, then I do not think that the charterers bring themselves within the clause. On this analysis, in view of the finding in par (viii), I therefore consider that the vessel was not off-hire.

Mr Justice Kerr then went on to consider the meaning of the word "detention" and returned, at p 383, to the words with which we are concerned, saying:

Finally, I think some slight assistance supporting my construction of "preventing the full working of the vessel" is to be found in the judgment of Mr Justice Bailhache in Thomas Smailes & Son v Evans & Reid Ltd [1917] 2 KB 54. In that case the off-hire clause included "loss of time from damage preventing the working of the vessel for more than 24 running hours" and provided that "the payment of hire shall cease until she be again in an efficient state to resume her service". The vessel sustained damage and part of her cargo had to be discharged in order to effect repairs at a port of refuge. The issue was whether she came back on hire when the repairs were completed, or only after the discharged cargo had been re-loaded. Mr Justice Bailhache decided in favour of the former contention. He took account of the difference in the wording between that provision and the off-hire clause in Vogemann v Zanzibar and said:

In this case the vessel was, as a vessel, undoubtedly in an efficient state at 11.00 am on October 18, that is to say, she had her temporary repairs completed, and was ready to sail the seas as a seaworthy ship. But was she in an efficient state "to resume her service"? Mr Leck contends that until the cargo was re-loaded she was not. I cannot agree. I think she did in fact resume her service the moment she was efficient to do so. It is quite true that there was time lost by the accident until 8.30 am on October 30, and if the clause had said that hire should not be payable during "all time lost in consequence of an accident" Mr Leck's contention would, I think, have been right. But that is not the language used. The clause which I am construing does not give the charterers a complete indemnity for time lost under the circumstances that occurred in this case.

It therefore seems to me that all these authorities, though distinguishable on the facts and on the wording of some of the clauses, point in the same direction. I do not think that there was any "detention" in this case, nor that the full working of the vessel, as a vessel, (to use the phrase of Mr Justice Bailhache) was ever prevented. I therefore hold that she was never off hire.

It seems to me that the clear sense of those two passages is that, for the clause to be capable of applying at all, the charterers have to show that the vessel in herself or as a vessel was not "fully efficient in all respects" (see the penultimate sentence of the dictum at p 382). Only if she is not "fully efficient and able to render to the charterers the service then required" (see the words five lines from the top of that page) is it necessary to consider whether she is prevented from being so by a relevant clause.

There was an amended cl 15 containing the word "whatsoever" in Sidermar SA v Apollo Corporation (The Apollo), [1978] 1 LLoyd's Rep 200 where suspicion that two members of the crew had typhus delayed the granting of free pratique. Mr Justice Mocatta, having cited the passage from the judgment of Mr Justice Kerr in The Mareva at pp 381-382, said at p 205:

Mr Siberry submitted that the use of the word "whatsoever" did not ipso facto exclude the application of the ejusdem generis rule and that the off-hire clause applied to matters internal to the ship and her crew and not to external interference or delays. I find it very difficult to lay down criteria of this kind. For example, if a surveyor from a classification society required tests to be made to the machinery would the delay consequent upon this bring the off-hire clause into play?

In my view although there is considerable tautology about the printed clause, which has been increased by the typed amendments, the use of the word "whatsoever" coming after the words "or by any other cause" excludes the application of the ejusdem generis rule so as to limit the "other causes" to those of the same genus as previously enumerated, if such a genus can be found. This does not, however, necessarily mean that there is no limitation on the application of the amended clause since one has the general context of the charter and the words "preventing the full working of the vessel". It is for the owners to provide the ship and the crew to work her and provide the service then required by the charterers. Here the obtaining of free pratique was no mere formality owing to the illness of the two members of the crew, who had to be discharged to hospital at the vessel's previous port of call suffering from suspected typhus. Where the obtaining of health clearance is a mere formality I think the very minor delays, if any, involved in obtaining it would not bring the off-hire clause into play, since the ship would be able to render the service then required of her. But in the present case the obtaining of free pratique was no mere formality and there was good cause for the careful testing and disinfection that was carried out before free pratique was given involving a delay of 29 1/2 hours. In my judgment the action taken by the port health authorities did prevent the full working of the vessel and did bring the off-hire clause into play.

For these reasons the answer to the first part of the question of law raised for the decision of the Court is in the negative.

I have four comments on this passage. First, the learned Judge had difficulty in laying down criteria distinguishing between internal and external matters. Secondly, he construed "the full working of the vessel" as meaning the ability of the ship and crew to provide the service then required by the charterers. Thirdly, he decided, as has been common ground in argument in the present case, that the addition of the word "whatsoever" in cl 15 excludes the ejusdem generis rule (see Mr Justice Lloyd's first reason in The Maestro Giorgis); and fourthly, the penultimate sentence (". . . the action taken by the port health authorities did prevent . . .") might give some support to Miss Heilbron's contention in the present case that the action of the port authorities at Kaohsiung equally prevented the full working of the vessel. But that sentence, as will be seen, has since been explained in the Court of Appeal in a later case so as to give less support to Miss Heilbron than might at first appear.

That case was Actis Co Ltd v The Sanko Steamship Co Ltd (The Aquacharm) reported at first instance in [1980] 2 Lloyd's Rep 237. In that case the charter-party contained the unamended cl 15 without the word "whatsoever". The vessel was not allowed to enter the Panama Canal because she exceeded the permitted draught because she had been overloaded, for that purpose, by the master. Mr Justice Lloyd decided that the vessel was not off hire. Having referred to The Mareva and Court Line v Dant & Russell he said at p 240:

The test therefore is whether the vessel is fully efficient in herself, that is to say, whether she is fully capable of performing the service immediately required of her. If she is, then she is not off-hire, even though she is prevented from performing that service by some external cause such as the boom in Court Line Ltd v Dant & Russell Inc and the refusal by the Panama Canal Company in this case to permit the vessel to pass through the canal. The umpire has found in par 13(a) of his award that the vessel was fit "in herself" to perform the service immediately required. In my judgment he has applied the right test. He has come to the conclusion that the vessel was not off-hire. I agree with his conclusion.

The only other authority I should mention in this connection is The Apollo, [1978] I Lloyd's Rep 200. In that case a vessel was detained for nearly 30 hours by the port health authority because of two members of the crew who had previously been taken to hospital with suspected typhus. The port authorities insisted on the vessel being disinfected before they would grant free pratique. Mr Justice Mocatta held that the vessel was off hire. The dividing line between a vessel which is unable to enter a port until she has been disinfected and a vessel which is unable to enter port until she has been lightened may be narrow; but it has never, so far as I know, been suggested that in the latter case the vessel would be off hire. I can see no difference between that case and the present.

The test set out in the first sentence of that passage is an amalgamation of the tests of Mr Justice Kerr in The Mareva and Mr Justice Mocatta in The Apollo, and I respectfully adopt it, as did the arbitrators in the present case.

The reference by Mr Justice Lloyd to "an external cause" can be easily understood in the context of the unamended cl 15, in which the ejusdem generis rule could be applied to the words "any other cause" so as to confine them to a cause ejusdem generis with the causes specifically mentioned, which could all be said not to be external causes. But in these circumstances I would have thought, with respect, that the true position would have been that if the vessel was fully efficient in herself, ie, fully capable of performing the service immediately required of her, it would have mattered not what the cause was; whereas if she was not fully efficient and capable of performing the service immediately required of her she would nonetheless still have been on hire if the cause which prevented her from fully working was an external cause.

Between the decision of Mr Justice Lloyd at first instance and of the Court of Appeal in The Aquacharm there intervened The Good Helmsman, [1981] 1 Lloyd's Rep 377; but although that case was referred to in argument, I have come to the conclusion that it cannot assist me in the present case one way or the other, in particular because there is some doubt about whether the judgment of Lord Justice Ackner (as he then was) in that case is accurately reported.

In The Aquacharm in the Court of Appeal ([1982] 1 Lloyd's Rep 7; [1982] 1 WLR 119) Lord Denning MR at pp 9 and 122 said:

The umpire, Mr CS Staughton, QC and the commercial Judge, Mr Justice Lloyd . . . held that the vessel was still on hire for those nearly nine days. She was not off hire. I agree with them. In seeing whether cl 15 applies, we are not to inquire by whose fault it was that the vessel was delayed. We are to inquire first whether the "full working of the vessel" has been prevented. Only if it has, do we consider the "cause". I do not think the lightening of cargo does "prevent the full working of the vessel". Often enough cargo has to be unloaded into a lighter -- for one reason or another -- to get her off a sandbank -- or into a basin. The vessel is still working fully, but she is delayed by the need to unload part of the cargo. It is rather like Court Line Ltd v Dant & Russell Inc . . . The vessel was still working fully, but she was delayed by the boom across the Yangtse River. This vessel was, therefore, still on hire for nearly nine days.

Lord Denning also, therefore, takes the view that the first question is whether the vessel was working fully. Lord Justice Griffiths (as he then was) at pp 10-11 and 124-125 said:

The charterers rely upon the words, "any other cause preventing the full working of the vessel". Mr Phillips, founding himself upon a passage in the judgment of Mr Justice Kerr in Mareva Navigation Co Ltd v Canaria Armadora SA [1977] 1 Lloyd's Rep 368 submits that the excess draught caused by the amount of cargo she was carrying prevented the full working of Aquacharm because she was unable in that condition to perform the service required of her, namely to pass through the canal. I do not read Mr Justice Kerr's judgment as supporting the proposition that a ship which is sound in herself is prevented from "full working" because it has loaded too much cargo to pass through a particular waterway, or to enter a particular harbour.

Mr Justice Kerr was not considering a situation such as has arisen in this case, and the whole emphasis of his judgment directs one to consider the efficiency of the ship herself in deciding whether or not it is capable of "full working": see in particular the passage where he said . . .

But if, for instance, the cargo is damaged as a result of an accident, but the vessel's ability to work fully is not thereby prevented or impaired, because the vessel in herself remains fully efficient in all respects, then I do not think the charterers bring themselves within the clause.

The Aquacharm remained at all time in herself fully efficient in all respects. She could not pass through the canal because the canal authorities decided she was carrying too much cargo, but that decision in no way reflected upon Aquacharm's efficiency as a ship.

By contrast, in Sidermar SpA v Apollo Corporation . . . a ship was held up by the port health authorities because two of the crew had been taken to hospital with suspected typhus, and the health authority insisted that the ship be disinfected before they would issue a free pratique. Mr Justice Mocatta held that the vessel was off hire during that period of deal. A ship suspected of carrying typhus is prevented from working fully until it is cleared, for no responsible person would use it in such a condition. The incapacity of the ship to work in such a case is directly attributable to the suspected condition of the ship itself, and in my view is clearly distinguishable from the present case.

Although obviously not on all fours, the present case is nearer to Court Line Ltd v Dant & Russell Inc, (1939) 64 Ll L Rep 212; (1939) 44 Com Cas 345 when the ship although sound in herself was delayed by a boom across the Yangtse River, and it was held that it remained on hire.

As Aquacharm remained at all times an efficient ship, she was capable of "full working" within the meaning of the off hire clause and the charterers do not succeed under this head.

Lord Justice Griffiths therefore looked, as Mr Justice Kerr had done, to the efficiency of the ship herself for the purpose of deciding whether she was capable of full working and explained the judgment of Mr Justice Mocatta in The Apollo upon the basis that the suspected carrying of typhus affected the condition of the ship and its capacity to work. Lord Justice Shaw agreed with the judgments of Lord Denning and of Mr Justice Lloyd.

I will return, therefore, finally, to The Maestro Giorgis. The charter-party in that case was amended so as to include the word "whatsoever". After the vessel arrived at her second discharging port with her cargo of grain, the receivers alleged that some of the grain had been damaged and had the vessel arrested. The question was whether she was off hire while she was under arrest. Three arbitrators held that she was, and Mr Justice Lloyd upheld that award. I have already cited some passages from his judgment, but I should add to them the passage at p 67 where he summarized the arbitrators' reasons for their award as follows:

Where a vessel is fully efficient, and capable in herself of performing the service immediately required by charterers, she is on hire even if she is prevented from performing that service by an extraneous cause, such as the boom which prevented the vessel from sailing down the Yangtse in Court Line Ltd v Dant & Russell Inc . . . But here the arrest was not an extraneous cause in that sense since it affected the legal status of the vessel. She was just as much incapable in herself of performing the service immediately required, that is to say, leaving port, by reason of the arrest as she would have been if she had suffered a breakdown in her engines. There is no distinction to be drawn between legal incapacity and physical incapacity.

It is also necessary to cite two later paragraphs from the judgment of Mr Justice Lloyd at p 69 which contain his conclusions. They are:

(6) Mr Tomlinson relied on the explanation of The Apollo given by Lord Justice Griffiths in The Aquacharm that "no responsible person would use the vessel in such a condition". But no responsible person could use the vessel in the present case, so long as she was under arrest. The arrest was, in my view, directly attributable to the history, if not the condition, of this particular vessel.

For the reasons which I have given, I would hold that the vessel was off-hire during the period in which she was prevented from leaving port by reason of being under arrest. On the facts, this case is a long way from Court Line Ltd v Dant & Russell Inc (sup). I agree that it is more difficult to distinguish the case from The Aquacharm and The Mareva AS, but the line between those cases and The Apollo is admittedly a narrow one.

Reading his judgment as a whole, therefore, it seems that Mr Justice Lloyd dealt with the question whether the full working of the vessel was prevented in that one sentence in the middle of his reason number 6. The last sentence of that numbered reason, and each of the other five reasons, are concerned with consideration of questions about the causes of the prevention of full working.

Mr Legh-Jones, as I understand him, would not seek to attack the arbitrators' reasons, nor to suggest that the decision of Mr Justice Lloyd upholding the arbitrators' award was wrong.

But he submits that if the decision is authority for the proposition that an external cause of detention is one preventing the full working of the vessel so long as it is attributable to the history or ownership of the vessel, it should not be followed; and he submits that such a proposition would run counter to the previous authorities and would circumvent the established test of whether the vessel is fully efficient in herself, fully capable of performing the service immediately required of her. He accepts, as I do, that the state of a vessel's documentation and her crew are matters which may be relevant to her efficiency.

In these circumstances, it is necessary for me to attempt to summarize the effect of the earlier authorities on the approach which should be followed in considering the meaning and application of cl 15. That approach, as it seems to me, is first to consider whether the full working of the vessel has been prevented. Although, as I said earlier, that would appear prima facie to be a pure question of fact, the Courts have unquestionably put a judicial gloss on the way in which that question of fact is to be put, so that the question which has to be asked, according to the authorities, is whether the vessel is fully efficient and capable in herself of performing the service immediately required by the charterers. If the answer to that question is in the negative, and where the off-hire clause contains the word "whatsoever" (as it does in the present case and as it did in The Maestro Giorgis) then unless (which would seem to be unlikely) it can be suggested that the words "any other cause whatsoever" are to be limited in some way, it should not be necessary to consider the particular cause which prevented the full working of the vessel. I quite accept that in principle the words can be limited by the general context of the charter (see Mr Justice Mocatta in The Apollo), but in practice I would have thought that the only real limitation is that the cause must have been one which prevented the full working of the ship. This does not limit the meaning of the words "any other cause whatsoever"; it merely limits the range of relevant causes by reference to their effect. Where the off-hire clause is unamended and does not contain the word "whatsoever", then the ejusdem generis rule could, and probably should, be applied. In those circumstances it would be necessary for the tribunal to determine the cause which prevented the full working of the vessel, and then to decide whether or not that cause came within the off-hire clause properly construed; and, although it is not necessary for me to decide the point, it would come as no surprise to me if it were to be decided that a cause wholly extraneous to the vessel was not a cause within the meaning of the words "any other cause" in that clause. If, however, the tribunal finds that the vessel is fully efficient and capable in herself of performing the service immediately required by the charterers, then it is not necessary to consider the question of cause at all because she has not been prevented from fully working at all.

I now return to Mr Legh-Jones' submission that I should not follow the decision of Mr Justice Lloyd. I do not think that it is necessary or proper to decide not to follow that decision. But, assuming that my analysis of the approach to the clause, consistent with authority, is correct, I would not, with diffidence and respect, apply Mr Justice Lloyd's approach in the terms in which he applied it for two reasons: first, because it seems to me to give undue emphasis to the cause of the prevention of the full working, as distinct from the fact that full working is prevented; and, secondly, because for the reasons that I have already expressed, in the case of an amended clause in my view it is probably unnecessary to consider the nature of the cause at all, something which Mr Justice Lloyd himself acknowledged in the way in which he stated his second reason: "any cause may suffice". Moreover, for my own part, I do not think it either necessary or helpful to attempt to categorise causes with a view to distinguishing between totally extraneous and other causes. As I have said, for the purposes of an amended off-hire clause, any cause is probably sufficient; for the purposes of an unamended clause, my approach, if I were an arbitrator, would be first to find whether full working had been prevented, then to determine the cause of the fact and, finally, to decide whether that cause was a cause within the meaning of the words "any other cause" in the clause.

As I have said, Miss Heilbron submits that the majority arbitrators' award should be set aside because they should have decided that the full working of the vessel had been prevented by the presence of the refugees on board, which had become a characteristic of the vessel or part of her history. In order to test that submission it is necessary to analyse their reasons, which can conveniently be summarized as follows: (i) the service immediately required of the vessel was to enter Kaohsiung and load cargo (p 16); (ii)(a) the ship herself was capable of working cargo (p 17); (b) the vessel was always capable of performing the service immediately required (p 20); (c) the number of persons on board did not impair "the full working of the vessel as a physical reality" (p 17); (d) the presence of the refugees did not prevent the vessel from being fully worked had port facilities been made available (p 20); (iii) the refusal by the Taiwanese authorities to allow the vessel into Kaohsiung when she first arrived was an extraneous cause (p 17); (iv) behind the attitude of the Taiwanese authorities lay a second extraneous cause, namely the presence of the refugees on board (p 18); (v) the refugees did not form part of the essential entity of the vessel (pp 17-18); (vi) it was not apt to describe the refugees as part of the vessel's history and characteristics (p 19); (vii) the finding of the refugees was "extraneous" (p 19).

As is apparent from my earlier recitation of their reasons in full, the majority arbitrators in the present case applied the reasoning of Mr Justice Lloyd in The Maestro Giorgis, but although I have said that, with diffidence and respect, I would not follow the approach of Mr Justice Lloyd, I can see no reason for concluding that their decision was wrong. There is no reason for holding that the arbitrators are wrong because they asked themselves, and answered, the question which, according to the authorities, is the first question, namely whether the vessel was efficient in herself and fully capable of performing the service immediately required (see primarily the reasons summarized in (i) and (ii)(a) and (b)). Those reasons constitute facts found for the purpose of determining whether the full working of the vessel had been prevented, giving to those words the construction put upon them by Mr Justice Kerr in The Mareva and Mr Justice Mocatta in The Apollo. There is no reason whatsoever for suggesting that those findings of fact were perverse and, consequently, they amount, in effect, to an unchallengeable conclusion that the full working of the vessel was not prevented within the meaning of those words as judicially construed.

Moreover, what I have described as the reasons summarized in (ii)(c) and (d) are also findings of fact which would make it impossible for Miss Heilbron to sustain her argument that the presence of the refugees on board was an impairment of the vessel for the purposes of this off-hire clause.

Having concluded, in effect, that the vessel was not prevented from full working, it was not, for the reasons I have already given, necessary for the arbitrators to consider causation at all; so that their reasons which I have summarized at (iii) to (vii) are irrelevant. The arbitrators' implicit conclusion that the refusal by the Taiwanese authorities to allow the vessel into Kaohsiung did not prevent her full working is a conclusion which cannot be said to be wrong, since it is a conclusion of fact, or mixed fact and law, which any reasonable tribunal could reach having directed itself as to the meaning of the expression "preventing full working" in the light of the judicial gloss to which I have referred. If, on the other hand, it is relevant to ask (which I think it is not in the context of an amended clause) whether the presence of the refugees on the ship had become a characteristic of the ship or part of her history, I would be unable to take the view that the arbitrators' conclusion (which I have summarized at (vi) above) was an unreasonable one which no tribunal, properly directing itself, could reach.

That is enough to dispose of Miss Heilbron's principal submission. I can deal shortly with her three subsidiary submissions. First, she suggests that the service immediately required of the vessel was to perform a liner service, that the next port was Keelung, and that the authorities had made a blanket refusal to allow the vessel to enter that port. This argument fails in the face of the majority arbitrators' finding that the service immediately required of the vessel was to enter Kaohsiung and load cargo, which cannot, in my opinion, be challenged. Secondly, she suggests that the vessel was not at the disposal of the charterers but under owners' control and direction. Whether, or to what extent, that was true is, in my view, immaterial to the application of the off-hire clause. Finally, she submits that the vessel was not fully working but only partly working because of the attitude of the stevedores; but that submission is also, in my view, unsustainable, in view of the finding which I have summarized in (ii)(d) above.

In my judgment, therefore, the arbitrators' award cannot and should not be disturbed, and this appeal must be dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Zaiwaller and Co; Richards Butler.

Copyright notice: Crown Copyright

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