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Английское морское и коммерческое право Английский прецедентЮридические услуги, консультации |
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Дело "THE KRITI REX"Несмотря на то, что это дело рассматривалось судом достаточно давно (1995-1996), однако, из-за того, что в нем сплелись несколько интересных для практики моментов, мы решили опубликовать его сейчас на этом сайте. Судно поломалось при выполнении вояжа во второй порт погрузки (всего должно было быть 3 порта погрузки). Часть товара уже погружена, часть отправлена другим судном и в другое место, а часть, просто осталась не отгруженной и по всей видимости была утилизирована. Виноваты ли судовладельцы в том, что судно поломалось? Проявили ли судовладельцы должную заботу о судне, перед началом балластного рейса в порт погрузки? Явилось ли большое количество твердых примесей в поддоне двигателя действительной причиной того, что при переходе из первого во второй порт погрузки двигатель судна вышем из строя? Как считать убытки фрахтователя, возникшие из-за того, что часть товара погружена и позже пришла в негодность из-за задержки судна? Вторая часть груза была экстренно переправлена в другое место на другом судне и соответственно реализована не по ценам, ожидаемым продавцами. Третья часть груза вообще не была погружена, хотя бананы были срезаны и упакованы в ящики. Как оценить общий убыток фрахтователей? Перевозчиками в этом споре выступала компания, взявшая судно в тайм чартер на три года. Требования фрахтователей (грузоотправители) и держателей коносаментов на часть погруженного товара, предъявлены к ним. Имеют ли они право портебовать компенсации своих убытков от оригинальных судовладельцев? И так далее. ОТДЕЛЕНИЕ КОРОЛЕВСКОЙ СКАМЬИ ——————— (THE “KRITI REX”) Слушал судья Moore-Bick Договор фрахтования судна – Нарушение договора – Убытки – Договор перевозки бананов – Поломка двигателя у судна – Непредоставление судна под погрузку – Является ли судно немореходным – Нарушили ли тайм чартерные фрахтователи статью 3 правило 1 Правил Гаага Визби – Нарушили ли тайм чартерные фрахтователи подразумеваемое обязательство о максимальной скорости – Вопросы отдаленной причинной связи убытков, самой причины, уменьшения убытков и оценки ущерба. Коносамент – Не поставка – Убытки – Договор перевозки бананов – Поломка двигателя у судна – Непоставка товара в место назначения – Держатели коносамента требуют возмещения убытков от судовладельцев – Вопросы отдаленной причинной связи убытков, самой причины, уменьшения убытков и оценки ущерба Процедуры долевого взноса (контрибуции) – Возмещение вреда – Ответственность перед суб- фрахтователями – Договор перевозки бананов – Поломка двигателя у судна – Непредоставление судна под погрузку и непоставка товара в место назначения – Имеют ли право тайм чартерные фрахтователи потребовать от судовладельцев компенсации убытков, которые выставляют на них суб фрахтователи – Вопросы отдаленной причинной связи и уменьшения убытков. Contract of affreightment – Breach – Damages – Contract for carriage of bananas – Vessel suffered engine failure – Failure to tender vessels for loading – Whether vessel unseaworthy – Whether time charterers in breach of art. III, r. 1 of Hague-Visby Rules – Whether time charterers in breach of implied obligation to proceed with all dispatch – Issues as to remoteness of damages, causation, mitigation and quantum Bill of Lading – Non-delivery – Damages – Contract for carriage of bananas – Vessel suffered engine failure – Failure to deliver goods at destination – Bill of Lading holders claimed damages from shipowners – Issues as to remoteness of damages, causation, mitigation and quantum. Contribution proceedings – Indemnity – Liability to sub-charterers – Contract for carriage of bananas – Vessel suffered engine failure – Failure to tender vessel for loading and failure to deliver goods at destination – Whether time charterers entitled to be indemnified by shipowners against time charterers’ liability to sub-charterers – Issues as to remoteness and mitigation. Первый истец (Fyffes) был известен как импортер бананов в Великобританию и на континент из Центральной Америки и Карибов. Для исполнения плана по перевозке бананов в Европу Fyffes 26 ноября 1990 года заключили контракт перевозки грузов с первым ответчиком REL. По этому контракту REL должен был предоставить рефрижераторные суда под погрузку свежесобранных бананов и других фруктов в порту Биг Крик (Белиз), Пуэрто Кортес (Гондурас) и Манзанилло в Доминиканской Республике, для перевозки в Портсмут и Зеебрюгге в период с 25 октября 1990 года по 31 декабря 1991 года. Закон о морской перевозке грузов 1971 года был инкорпорирован в договор перевозки. 31 августа 1988 года второй ответчик (судовладельцы) предоставил свое рефрижераторное судно «Крити Рекс» фрахтователю REL на период в 3 года, согласно проформе Балтайм с некоторыми вариациями и дополнениями, которая в частности включала в себя оговорку инкорпорирующую американскую Парамаунт оговорку. В марте 1991 года REL номинировал «Крити Рекс» под погрузку бананов в Манзанилло, Санто Томас (Гватемала), Пуэрто Кортес и Биг Крик. Судно прибыло в Манзанилло. Погрузка началась 14 марта и закончилась 15 марта. Два коносамента были выданы в доказательство погрузки 16 530 ящиков зеленых бананов. Держателями коносаментов были вторые ответчики «Caribbean Gold». Судно из Манзанилло ушло в следующий порт Санто Томас (Гватемала) в 7 30 утра 15 марта. Расчетное время прибытия в следующий порт было 10 30 утра 17 марта. Во время вояжа, однако, начали возникать проблемы с работой основного двигателя. Машина была остановлена и после осмотра обнаружены серьезные повреждения в седьмом поршне и гильзе цилиндра, а также в седьмом и пятнадцатом подшипниках пальца кривошипа. Ремонт произвели на месте и утром 17 марта двигатель вновь был запущен. Вскоре, подшипники опять нагрелись и двигатель остановили для повторной попытки ремонта. Двигатель запустили в 11 часов утра 18 марта, но когда скорость увеличили, седьмой и пятнадцатый подшипники вновь стали нагреваться. Двигатель остановили в третий раз и, после осмотра подшипников, выяснилось, что они повреждены. Восьмой основной подшипник также имел повреждения и капитан решил объявить общую аварию и проследовать в порт вынужденного захода Пуэрто Кортес. Судно, в конце концов, бросило якорь в Пуэрто Кортес 21 марта. Когда судно уходило из Манзанилло Fyffes решили погрузить дополнительное количество груза в Санто Томас, Пуэрто Кортес и Биг Крик. В течение 19 марта Fyffes предпринимало различные попытки найти дополнительные возможности по отгрузке свежесрезанных бананов, ожидавших отправки в Санто Томас. Из этого ничего не вышло и Fyffes договорились с Дель Монте о том, что бананы будут отправлены на их судне «Харвестер» в Галвестон (штат Техас) для продажи от имени Fyffes. В течение следующих дней наблюдалась усиленная переписка между Fyffes, REL и судовладельцами, по поводу прогресса в ремонте и состояния груза на борту. 28 марта состояние груза было проверено в порту Пуэрто Кортес. Выяснилось, что груз уже не удовлетворяет кондициям для перевозки в Европу. На месте не существовало рынка и, в этих обстоятельствах, было принято решение передать весь груз в качестве благотворительности Красному Кресту Гондураса. Fyffes потребовал от REL возмещения убытков из-за нарушения договора перевозки, вследствие неподачи судна под погрузку в порты Санто Томаси Биг Крик. Они требовали компенсации убытков, рассчитанных на основе стоимости бананов в конечном месте доставки, если бы товар был погружен в этих двух портах, минус расходы, сэкономленные… и минус стоимость проданных бананов, отправленных на «Харвестере» в Галвестон. Fyffes заявил, что REL, как перевозчик по контракту перевозки, нарушил своё обязательство, содержащееся в правиле 1 статьи 3 Правил Гаага –Визби, предписывающее проявлять должную заботу по приведению судна в мореходное состояние. Либо, заявил истец, REL как перевозчик нарушил подразумеваемое обязательство выполнять рейс с максимальной скоростью. В отношении убытков были подняты несколько тем, включая вопросы об отдаленной причинной связи этих убытков, самой причины, действий по уменьшению убытков и оценки ущерба. REL инициировал процедуры долевого взноса (контрибуции) против собственников судна, требуя от компенсации любых сумм, которые могут быть взысканы с REL со стороны Fyffes… —- Решено (судья Moore-Bick): А. Причина происшествия (1) Первопричиной происшествия была поломка восьмого главного подшипника, происшедшая в свою очередь из-за необычайно высокой концентрации твердых примесей в смазочном масле… В. Иск Fyffes к REL: (1) Довод представителя REL, что поскольку Санто Томас не был указан в контракте перевозки, то REL не несет ответственности и не обязан был грузить бананы в этом порту, отвергается. Согласно имеющимся доказательствам, стороны договорились включить в рамки договора и порты Гватемалы, в частности, Санто Томас. Контракт перевозки был изменен путем включения Санто Томас в качестве договорного порта погрузки и REL был обязан грузить из этого порта … С. Иск Caribbean Golds к судовладельцам: (1) Ущерб был причинен немореходностью судна, а не мореходность судна произошла из-за не проявления собственниками должной заботы о мореходности судна перед погрузкой в Манзанилло. Судовладельцы несут ответственность перед Caribbean Gold за их убытки, поскольку они явились следствием того, что судно не доставило груз к месту назначения… D. Иск REL к судовладельцам. (1) Когда судно предоставляется в тайм чартер на три года для курсирования по всеми миру, собственники однозначно должны допускать, что судно может передаваться в суб чартер на часть или даже на весь срок чартера. Существование суб чартеров допускается собственниками, как и то, что нарушение чартера с их стороны, приводящее к немореходности судна, может повлечь выплату убытков фрахтователями собственникам груза. Судовладельцы не могли не быть в курсе того, в каком состоянии оказался товар в результате происшедшей аварии. Более того, если убыток, оцениваемый по шкале замещаемости товара в порту доставки, рассматривать как ожидаемый перевозчиком, независимо от того, как была произведена сама оценка, трудно согласиться с тем, что убыток такого характера, причиненный фрахтователю на основании его суб чартера, совсем был не в пределах предположений судовладельцев. Убыток не имел «отдаленную причинную связь»… Следующие прецеденты рассматривались в этом деле: A/S D/S Heimdal v. Questier & Co. Ltd., (1949) 82 Ll.L.Rep. 452;Adamastos Shipping Co. Ltd. v. Anglo-Saxon Petroleum Co. Ltd. (The Saxon Star), (H.L.) [1958] 1 Lloyd’s Rep. 73; [1959] A.C. 133; (C.A.) [1957] 1 Lloyd’s Rep. 271; [1957] 2 Q.B. 233; Baleares, The [1993] 1 Lloyd’s Rep. 215; Balfour Beatty Construction (Scotland) Ltd. v. Scottish Power plc., (H.L.) 1994 S.L.T. 807; Bradley (F.C.) & Sons Ltd. v. Federal Steam Navigation Co. Ltd., (H.L.) (1927) 27 Ll.L.Rep. 395; Czarnikow Ltd. v. Koufos, (H.L.) [1967] 2 Lloyd’s Rep. 457; [1969] 1 A.C. 350; Dreyfus (Louis) & Co. v. Lauro, (1938) 60 Ll.L.Rep. 94; Evera S.A. Commercial v. North Shipping Co., [1956] 2 Lloyd’s Rep. 357; Hadley v. Baxendale, (1854) 9 Ex. 341; Hall (R. & H.) Ltd. v. W.H. Pim (Junior) & Co. Ltd., (H.L.) (1928) 30 Ll.L.Rep. 159; (1928) Com. Cas. 324; Lebeaupin v. Crispin & Co., [1920] 2 K.B. 714; Liverpool City Council v. Irwin, (H.L.) [1977] A.C. 239; M.D.C. Ltd. v. N.V. Zeevart Maatschappij “Beursstraat”, [1962] 1 Lloyd’s Rep. 180; Monroe Brothers v. Ryan, (1935) 51 Ll.L.Rep. 179; [1935] 2 K.B. 28; Nissho Co. Ltd. v. N.G. Livanos, (1941) 69 Ll.L.Rep. 125; Satya Kailash, The [1984] 1 Lloyd’s Rep. 588; Shirlaw v. Southern Foundries Ltd., [1939] 2 K.B. 206; Trollope & Colls Ltd. v. North West Metropolitan Hospital Board, [1973] 1 W.L.R. 601; Union of India v. N.V. Reederij Amsterdam (The Amstelslot), [1963] 2 Lloyd’s Rep. 223; Yamatogawa, The [1990] 2 Lloyd’s Rep. 39. =========== (f) Conclusions Having stated the competing considerations at some length I propose to state my conclusions on this part of the case fairly shortly. Only two events have been put forward as possible initiating causes of the casualty, but it is not simply a question of choosing between them; if the plaintiffs are to succeed it is for them to satisfy me on the balance of probabilities that the damage began with the failure of the No. 8 main bearing. If they succeed in that they must go on to show that the bearing probably failed because of contaminants in the lubricating oil. I am at least able to conclude with some confidence that the casualty did not start with a seizure of No. 7 piston, principally because there is nothing in the evidence before me to support the suggestion that there was any overloading of No. 7 unit leading to blow-past. Moreover, the absence of carbon deposits, the absence of any serious damage to the connecting rod, and the absence of any damage to No. 7 main bearing all support the conclusion that the casualty did not begin in that way. Moreover, Mr. Bevis himself very fairly accepted that if one assumes that the surveyors had looked for, but failed to find, any carbon deposits on No. 7 piston (as I am satisfied they did), he could not provide any explanation for a piston seizure let alone suggest a mechanism by which it might have occurred. No-one suggested that pistons are apt to seize for no apparent reason. In those circumstances I am satisfied that this theory must be discarded. Apart from that, however, such conclusions as can be drawn from the timing of the incident as a whole and the absence of damage to other bearings, particularly No. 7 main bearing, also point away from a seizure as being the initiating cause. I am unable to accept that the extrusion of the copper on only one side of the upper half of No. 8 bearing shell was caused by forces generated by the seized piston. In my judgment it was caused by the heating and thermal expansion of the crankshaft journal and the time required for that to occur is consistent with the degree of heating required to cause the discolouration of No. 8 bearing cap and saddle. I do not think that a sufficient degree of heating would be likely to have occurred within the time span postulated by Mr. Bevis. This too supports my conclusion that the casualty did not occur in the manner he suggested. Despite the difficulties to which I have already referred, I am persuaded that the casualty began with the failure of No. 8 main bearing and that that failure was caused by excessive amounts of small particles in the lubricating oil. I have reached that conclusion not simply because I have rejected the alternative theory (though the fact that I have done so inevitably points towards the failure of No. 8 main bearing as being the primary cause), but because it accords better with the evidence as a whole. The fact that Mr. Martin could not put forward a compelling explanation of the precise mechanism by which the failure came about is not in my judgment fatal to the plaintiffs’ case. At least one publication in the field of marine engineering which was before me shows that it has been recognized for some years that even very small particles (5m and upwards in diameter) are capable of causing damage to highly loaded bearings of the kind in question. Although there is nothing in the published material which supports the specific mechanism proposed by Mr. Martin, this is not, therefore, a case of a wholly inexplicable failure; it is a case of a failure of a recognized kind which can be linked by other evidence to a cause of a recognized kind even though it may be difficult to describe the precise mechanism by which cause leads to effect. As I suggested earlier, practical experience may lead one to be satisfied that such a link exists even though it cannot be fully explained. I accept Mr. Martin’s evidence, and the evidence of various publications put before me by the parties, that bearing failures are usually caused by some kind of contamination of the lubricating oil. (It is agreed that there is no question of any misalignment of the crankshaft in this case.) In this case there is evidence to which I have already referred that leads me to conclude that there was an unusually high level of particles in the lubricating oil circulating in the engine. Moreover, there is other evidence in this case which I shall mention in a moment that points clearly to the failure of No. 8 main bearing as the initiating cause, but no evidence of any likely cause of that failure other than contamination of the oil by excessive quantities of small particles. The overall timing of the incident is in my judgment more consistent with the plaintiffs’ case than with that of the defendants. I have already given some of the reasons for reaching that conclusion. The seizure of No. 7 piston was progressive and had clearly been going on for a while before it became serious enough to affect the speed of the turbocharger. Nonetheless, if the casualty began with the seizure it would have to have developed very rapidly in order to cause a failure of No. 8 main bearing within the short time available. Mr. Martin thought that that sequence of events could not occur in much less than five minutes. Having regard to the evidence of the degree of heating of No. 8 main bearing I think it unlikely that the damage could all have occurred within the time scale established by the chief engineer’s evidence. Finally there is the conundrum posed by the absence of damage to No. 16 crankpin bearing. None of the surveyors who attended the vessel at Puerto Cortes remarked on the presence of debris from the failed No. 8 main bearing within the bore of the crankshaft or in way of No. 16 crankpin bearing, but they did not remark on the presence of debris anywhere else either. That may just be because the existence of debris following multiple bearing failures was not remarkable. At all events, although this piece of evidence tells against the plaintiffs’ case, it is not so strong in itself as to preclude a conclusion which in my judgment is otherwise supported by the rest of the evidence as a whole. I think it likely that some debris from No. 8 main bearing was carried towards No. 16 crankpin bearing but that the effect of the flow of oil from No. 9 main bearing (which, being at the extreme forward end of the crankshaft supplied oil only to Nos. 8 and 16 crankpin bearings) prevented such large quantities from reaching it and that although a blockage began to form it did not reach the point at which the flow of oil to the bearing was interrupted. For these reasons I have reached the conclusion that the initiating cause of the casualty was the failure of No. 8 main bearing which was itself caused by an unusually high concentration of particulate matter in the lubricating oil. Finally, before leaving this aspect of the matter I would like to pay tribute to the expert witnesses for the admirable way in which they gave their evidence which I found of the greatest assistance. 3. Was the casualty caused by unseaworthiness of the vessel? I was reminded by both Mr. Young and Mr. Glennie that the concept of seaworthiness is not absolute in the sense that a vessel will not be considered unseaworthy merely because with hindsight she can be seen to have been suffering from some deficiency which in due course led to a casualty. In F.C. Bradley & Sons Ltd. v. Federal Steam Navigation Co. Ltd., (1927) 27 Ll.L.Rep. 395 the point was put by Viscount Sumner in this way at p. 396: In the law of carriage by sea neither seaworthiness nor due diligence is absolute. Both are relative, among other things, to the state of knowledge and the standards prevailing at the material time . . . and in M.D.C. Ltd. v. N.V. Zeevart Maatschappij “Beursstraat”, [1962] 1 Lloyd’s Rep. 180 Mr. Justice McNair applied what he regarded as the most common test, and is still regarded as a good test, namely: Would a prudent shipowner, if he had known of the defect, have sent the ship to sea in that condition? Another way of putting it is that the vessel must be fit in all respects to carry her cargo safely to its destination having regard to the ordinary perils to which such a cargo would be exposed on such a voyage (see Scrutton on Charterparties, 19th ed., art. 48). The defendants say that the vessel was fit to encounter the ordinary perils of the voyage and that a prudent shipowner would happily have sent her to sea even if he had known that there was an unusually large amount of sludge in the sump tank and in consequence that the lubricating oil circulating in the engine contained an unusually high level of particles small enough to pass through the filters. I am unable to accept that. The general nature of the effect which particles in the lube oil may have on bearings and of the ability of bearing surfaces to deal with them is well known and has been for some time, and one of the reasons for undertaking regular expert analysis of lubricating oil is to ascertain whether there is an excessive build up of particulate matter. Of course it can be said that provided the filters are in good working order, as they were in this case, there is some assurance that the particles which are small enough to pass through them can be safely accommodated by the bearings. In that sense they can be viewed as “design size” particles, to adopt Mr. Young’s phrase, but I do not think the matter is as simple as that. The problem is one of degree. Mr. Martin did not consider that it was satisfactory simply to rely on the efficiency of the filters and Mr. Bevis did not dispute the suggestion that it was not good practice to have as much sludge in the sump tank as this vessel had, and one can see why: the greater the amount of particulate matter circulating with the oil, the greater the risk of damage to the bearings. I do not think that a prudent owner would simply rely on the filters and assume that the quantity of fine particles was a matter of indifference. Whether he would have foreseen the particular sequence of events which occurred in this case, or would have appreciated the mechanism by which they occurred, does not matter. For these reasons I am satisfied that when she set out from Zeebrugge on her approach voyage to Manzanillo the vessel was unseaworthy because of the amount of fine particulate matter in the lubricating oil. 4. The exercise of due diligence The question whether the owners exercised due diligence to make the vessel seaworthy does not loom large in this case because they accepted that having failed to have regular analyses of the lubricating oil carried out it would be difficult for them to argue successfully that they had done all that they could reasonably have done to ensure that the oil was fit for service. In my judgment they were right to make that concession since regular independent analysis of the lubricating oil is a standard precaution against contamination by water and other foreign matter. Nonetheless, Mr. Glennie on behalf of the owners submitted that that was the only criticism that could be made of them and that their failure to exercise due diligence in that respect was not causative of the loss. In support of the proposition that they were therefore still entitled to rely on the protection given by art. IV of the Hague-Visby Rules he relied on the decisions in Union of India v. N.V. Reederij Amsterdam (The Amstelslot), [1963] 2 Lloyd’s Rep. 223 and The Yamatogawa, [1990] 2 Lloyd’s Rep. 39. In The Amstelslot the issue was whether the surveyors who had inspected the vessel’s reduction gearing ought to have carried out a more detailed kind of inspection which would have revealed the existence of the fatigue crack which led to the casualty. Mr. Justice McNair held that their failure to do so was not negligent and his finding on that point was upheld by the House of Lords. That was not a case, therefore, in which the Court found that there had been any failure on the part of the owners to exercise due diligence and it does not take the matter any further. The Yamatogawa, however, does support Mr. Glennie’s proposition. That case also concerned a failure of the vessel’s gearing. Mr. Justice Hobhouse found that there had been a failure to exercise due diligence in one respect when the gearing was inspected, but he also found that that failure had no causative effect on the casualty. The claim therefore failed. In my judgment the present case is rather different. Regular independent analysis of the lubricating oil is a standard precaution against contamination by water and other foreign matter and would probably have shown that there was excessive particulate matter in the oil. However, I do not think that criticism of the owners can be confined to their failure to have such analyses regularly carried out. The unusually high frequency of filter flushings which had been a continuous feature of this engine’s operation prior to the voyage was sufficient to indicate that there was a large amount of sludge in the sump tank which ought to have been cleaned. I accept that the sump tank was not easy to enter because of its size and construction, but I am not satisfied, as I have said, that it was completely inaccessible, much less that it was impossible to remove sludge from it by one means or another. In these circumstances I am satisfied that the owners’ did fail to exercise due diligence in the respect I have mentioned and that their failure to do so caused or contributed to the casualty. In the light of these findings I turn to consider the various claims in the action. (a) Was REL obliged to load at Santo Tomбs? Before turning to the detail of the parties’ arguments concerning the obligations of REL under the COA, however, it is convenient to deal with a preliminary argument raised by Mr. Young. The casualty occurred as the vessel was on her way from her first port of loading, Manzanillo, to Santo Tomбs, Guatemala where she was due to load a further parcel of bananas before sailing to Big Creek, Belize to complete. Orders to load at these three ports had been accepted by REL and the owners apparently without question. Big Creek and Manzanillo were two of the ports named in cl. 2A of the COA. Santo Tomбs, however, was not so named and Mr. Young submitted that in the absence of a variation of the COA (which he said had not been pleaded or proved) there was no obligation on REL to send the vessel to Santo Tomбs at all. Accordingly, REL could be under no liability as a result of the vessel’s failing to load there. Although it was possible when looking back to see that this argument had been foreshadowed in an oblique way during Mr. Young’s opening remarks, I think it is fair to say that it did not feature with any prominence at any stage in the proceedings until he came to make his final submissions. In the circumstances I therefore considered it right to allow Fyffes to amend their points of reply at that late stage in order to allege that the COA had been varied by agreement between the parties or that REL was estopped from contending that Santo Tomбs was not a contractual loading port. For reasons which I have indicated this question was not investigated with the witnesses as thoroughly as might have been appropriate. Nonetheless, I am satisfied on the evidence before me that there had been agreement between Fyffes and REL to extend the service under the COA to include ports in Guatemala, specifically Santo Tomбs. The exchanges between the parties which were before the Court do not go back beyond Feb. 19, 1991, but it is apparent that even before that date there had been discussions about lifting cargoes from Santo Tomбs. By that time REL had already become concerned about the amount of fruit Fyffes were making available for shipment. Claims for deadfreight had been made and adjustments to the COA were being considered. Both Fyffes and REL were keen to increase the volume of cargo available and by the middle of February the possibility of obtaining bananas from Del Monte at Santo Tomбs had been explored. Santo Tomбs lies between Puerto Cortes and Big Creek and it was not suggested that there were any disadvantages from REL’s point of view in loading there. An internal memorandum written by Mr. Templeman of Fyffes on Apr. 19, 1991 comparing their original plan with the position as it had by then developed refers to Fyffes having obtained the flexibility to load also in Guatemala. The orders to load at Santo Tomбs appear to have been conveyed by Fyffes direct to the vessel soon after she sailed from Manzanillo. On receiving them the master informed REL asking for its confirmation which he received shortly after. It appears that REL may have already heard from Fyffes that orders had been given to the vessel; at all events there was never any indication that that came as anything of a surprise or that REL did not regarded them as good orders under the contract. Mr. Young accepted that they were orders which REL was quite willing to comply with; the only question, as he accepted, was whether that part of the adventure was being performed under the COA or outside it under some voluntary ad hoc arrangement (although REL would naturally have expected to be paid freight, presumably on a quantum meruit basis). The suggestion that REL was willing to load at Santo Tomбs without comment of any kind on an ad hoc basis outside the terms of the COA strikes me in all the circumstances as fanciful. Mr. Ira Heisler, a senior vice-president of REL responsible for chartering of vessels, had already embarked on direct negotiations with Fyffes over the problems caused by the shortage of fruit which he described in a written statement served at a late stage during the trial. It is significant, in my view, that nowhere in that statement did he suggest that REL had no obligation to load at Santo Tomбs or that it had been willing to allow the vessel to load there on some ad hoc basis outside the terms of the COA. I think the reason is clear enough: REL had already agreed that Fyffes should have the flexibility to load in Guatemala as reflected in Mr. Templeman’s memorandum. I reject Mr. Young’s submission that there was no consideration to support a variation of that kind (never an attractive argument at the best of times). Both parties wanted to ship more fruit and each of them could expect to gain by mutually agreeing to extend the COA to cover loading in Guatemala. For these reasons, therefore, I am satisfied that well before the voyage with which I am concerned the COA had been varied to include Santo Tomбs as a contractual port of loading and that accordingly REL was obliged to load cargo there. (b) Breach of duty under art. III, r. 1 of the Hague-Visby Rules I come, then, to the first of the way in which Fyffes put their case against REL. Basing himself on Adamastos Shipping Co. Ltd. v. Anglo-Saxon Petroleum Co. Ltd. (The Saxon Star), [1957] 1 Lloyd’s Rep. 271; [1957] 2 Q.B. 233; [1958] 1 Lloyd’s Rep. 73; [1959] A.C. 133 Mr. Flaux on behalf of Fyffes submitted that the effect of cl. 32 of the COA was to impose on REL as carrier an obligation to exercise due diligence before and at the beginning of every voyage performed under the COA to make the ship by which it was performed seaworthy in accordance with art. III, r. 1. That obligation, he submitted, extended not just to cargo-carrying voyages, but to ballast voyages as well. Accordingly, REL was in breach of the COA inasmuch as at all material times after she left Zeebrugge on her voyage to Manzanillo Kriti Rex was unseaworthy by reason of the owners’ failure to exercise due diligence and it was that unseaworthiness which caused the voyage to be abandoned. © Is the COA a contract of carriage? In response Mr. Young made several interrelated submissions, two of which are of particular importance because they provided the basis for a number of other ways in which he developed his arguments on this part of the case. The first of these was that the COA did not represent (in his own words) a contract of carriage between REL and Fyffes (except in cases where a vessel owned by REL itself was employed), but was in truth a contract for carriage, that is a contract under which REL merely undertook to procure contracts of carriage between shipowners and one or other of the plaintiffs on terms of Fyffes’ standard form bill of lading. Thus, although he accepted that some clauses concerning the vessel’s movements, in particular cl. 29, did impose an absolute personal obligation on REL, its obligations in relation to the seaworthiness of the vessel in the present case were limited to using its personal best endeavours in accordance with cl. 31 to procure a vessel which was seaworthy. I am unable to accept this view of the COA. It is, of course, necessary to look at the COA as a whole against its commercial background in order to ascertain the essential nature of the contract which it embodies, but in this case both practical commercial considerations and the language which the parties used point unequivocally to the conclusion that the COA is a contract of carriage. This was a new venture between Fyffes and REL which had been the subject of extensive discussions and negotiations, and although the parties were unsure how some aspects of the business would work in practice, it was not in either party’s interest for the arrangement to be any less well defined than necessary. An agreement of the rather nebulous kind suggested by Mr. Young would in my view provide a most unlikely commercial vehicle from the point of view of either party. However, the language of the COA puts the matter beyond any doubt. Although not conclusive, the agreement is described as a “Contract of Affreightment” which in the context of carriage by sea is an agreement of a well-recognized kind, and consistently with that REL is described in cl. 1 as “Owners, Disponent Owners or Operators” and Fyffes as “Charterers”. Clause 2A is couched in language which reflects standard charter-party obligations in relation to the loading, carriage and discharge of cargo, but most telling is cl. 16 in which the agreement is described in terms as “a private contract of carriage”. Numerous other indications throughout the agreement point the same way and the very fact of the incorporation of the Carriage of Goods by Sea Act, 1971 supports the conclusion that the parties understood themselves to be entering into a contract of a kind to which the provisions of the Act would be relevant. In truth, there is nothing in the language of the contract or its background which supports Mr. Young’s contention. (e) Did the Hague-Visby Rules apply at the time of the casualty? I turn, then, to Mr. Young’s specific points in relation to the impact of the Hague-Visby Rules. His first point was that since the Hague-Visby Rules are incorporated into the COA only by contract, it is necessary to examine the contract as a whole to see which aspects of performance they were intended to regulate. Thus far I agree with him and I do not think it necessary to refer to the authorities which he cited in support of the proposition. His next point was that the COA in this case is essentially different from a consecutive voyage charter for a specific vessel of the kind under consideration in The Saxon Star. In particular, because the COA does not identify any specific vessel to perform any particular voyage and contains no machinery for nominating vessels, REL was entitled to fulfil its obligations by providing any vessel to load a particular cargo provided it presented at the loading port at the prescribed time. It was therefore impossible to identify any point at which the vessel performing the voyage had to be seaworthy other than the moment when loading began, and so no obligation to exercise due diligence could sensibly arise, he submitted, until the vessel had actually begun to load cargo. That, he said, was consistent with other terms of the contract. The COA incorporated the terms of the plaintiffs’ form of bill of lading which provided, inter alia, as follows: 1. . . . . . The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery, or misdelivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier. The carrier does not undertake that the goods shall arrive at the Port of Discharge at any particular time or to meet any particular market or use and the carrier shall in no circumstances whatsoever and howsoever arising be liable for direct or consequential loss or damage caused by delay or, save as expressly provided herein, otherwise. Accordingly, there was a clear provision that REL accepted no responsibility until such time as goods were actually on board. An agreement to restrict the carrier’s liability in that way, he submitted, does not conflict with the Hague-Visby Rules since by their own terms they relate only to cargo carrying voyages (see art. I(b), © and (e) and art. II), and in respect of such voyages the parties are free to determine what responsibilities the carrier undertakes to which the Hague-Visby Rules then apply: see G.H. Renton v. Palmyra Trading Corporation, [1956] 2 Lloyd’s Rep. 379; [1957] A.C. 149. In the present case the parties have agreed that loading and discharging are Fyffes’ responsibility and by virtue of the incorporation of the bill of lading terms, in particular in this context cl. 1, they have made their intention that REL is to be under no responsibility before cargo is loaded, other than to use its best endeavours in accordance with cl. 31. Each loading port gave rise to a separate voyage for the purposes of the COA, and REL could have withdrawn the vessel after it had loaded at Manzanillo, if it had wished to do so, and unilaterally substituted one or more different vessels to load at Santo Tomбs and Big Creek. Accordingly, since the voyages to Santo Tomбs and Big Creek were separate voyages under which no cargo was ever loaded, REL was not liable for breach of any duty under the Hague-Visby Rules, and having itself exercised its best endeavours to provide a vessel it was not in breach of its obligation under cl. 31. This is an ingenious argument, but I cannot accept Mr. Young’s construction of the COA or the conclusions which are said to follow from it. In my judgment it is clear, for the reasons I have already given, that even though the vessel may be ordered to load at more than one port, as she was in this case, there is only one voyage for the purposes of the COA. Since the COA gives REL considerable freedom to choose the vessels by which the service is to be performed and makes no provision for the nomination of vessels, there is clearly room for argument as to exactly when, if at all, in the course of her approach to the first port of loading the vessel enters upon the voyage. I am satisfied that during the negotiations Fyffes made REL aware of the general requirements of the banana trade and that it was primarily for that reason that cl. 29 was included in the COA. Clause 9 indicates that dates established by the giving of such notices were intended to have contractual significance and in my view the general scheme of the COA contemplates that a vessel will be committed to the voyage from the time that REL accepts orders for her to proceed to a port of loading. If necessary, therefore I would hold that the vessel begins the voyage at that time, although if I am right in holding that there was in this case only one voyage a decision on that point is unnecessary since on any view of the matter the vessel must have begun the voyage at the latest when she started to load cargo at Manzanillo. If I am wrong on that point I would hold that the voyages to Santo Tomбs and Big Creek began at the latest when REL accepted orders on Mar. 15 to load at those ports. Accordingly, it follows that in the present case the vessel was already engaged in performing the voyage to each of those ports under the COA when she suffered the casualty. My conclusion that there was in this case only one voyage which had begun before the vessel left Manzanillo makes it unnecessary to decide whether by virtue of cl. 32 of the COA the Hague-Visby Rules apply in relation to part or all of the vessel’s approach voyage to the first or only loading port. However, if I am wrong on that point the question does arise in relation to Santo Tomбs and Big Creek, and for that reason, and since it was in any event fully argued, I think it right to express my conclusions on it. Mr. Flaux, Q.C. submitted that this case was essentially very similar to The Saxon Star in that what the parties had in mind was a series of round voyages, each comprising a ballast and a loaded leg, to be performed by a small number of vessels continuously employed in the service which is described in cll. 1 to 4A of the COA. That is certainly consistent with the terms of the COA generally, and express support for it can be found in cl. 8. It remains the case, however, as Mr. Young pointed out, that there is nothing in the COA which compels REL to perform it in that way. Its only obligation is to provide suitable vessels at appropriate intervals ready to load at ports designated by Fyffes. He submitted that this was a significant ground of distinction between this case and The Saxon Star. In The Saxon Star the question arose whether the incorporation of the Hague Rules into a consecutive voyage charter was apt to render them applicable to ballast voyages. A majority of the House of Lords considered that it was natural in a case where there might be many ballast voyages that the parties should have intended the Hague Rules to apply over the whole of the vessel’s employment (see, in particular, per Viscount Simonds at p. 82, col. 2; p. 156 and per Lord Somervell of Harrow at pp. 99-100; pp. 185-186). That conclusion is perhaps now seen as unremarkable inasmuch as the charter was for consecutive voyages by a specific vessel so that the ballast voyages would be performed under the charter just as much as the loaded voyages. Similar kinds of questions have since arisen under contracts of rather different kinds: see in particular The Satya Kailash, [1984] 1 Lloyd’s Rep. 588. In my opinion, having regard to the nature of the service which the parties had in mind and the manner in which they expected it to be performed, very similar considerations would exist in the present case to the extent that any part of the ballast passages, for example from the U.K./Continent to Central America, formed part of the contractual service. Mr. Young submitted that the terms of the COA itself when read together with those incorporated by reference to Fyffes’ bill of lading demonstrate the parties’ intention to limit the scope of the application of the Hague-Visby Rules to cargo-carrying voyages only. I fully accept that when a contract incorporates by reference terms drawn from other sources it is necessary to construe all the terms of the contract, including the incorporated terms, together to ascertain the parties’ intention and in doing so to give meaning and effect to them all, as far as that is possible. It is also necessary, however, not to lose sight of the overall thrust of the contract as a whole. In this case I do not think that the terms of Fyffes’ bill of lading taken together with cl. 12 of the COA itself will bear the weight which Mr. Young seeks to put on them. In addition to the provisions cited above, cl. 1 of the bill of lading contains a paramount provision and also includes the following sentence: The provisions stated in the Act and the rules shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the carrier . . . and although the passage relied on by Mr. Young does relate to damage occurring while the goods are not in the custody of the carrier, it concerns loss, damage or delay to the goods. Its incorporation into the COA along with the other terms of the bill of lading does not in my view support the conclusion that REL was to have no responsibility at all for the seaworthiness of the vessel except while cargo was actually on board. Having regard to the nature of the COA, I cannot accept that by incorporating the Carriage of Goods by Sea Act the parties intended that the Hague-Visby Rules should only apply to cargo-carrying voyages but not to ballast voyages insofar as they formed part of the contractual service. Whether all or part of such a voyage does form part of the contractual service probably depends on when the vessel becomes committed to the particular cargo-carrying voyage. For reasons I have already given I would hold that the vessel became committed to the voyage to a particular port from the time that REL accepted orders to load at that port. In the present case the vessel had loaded at the first port and was proceeding under orders to the second and third loading ports. She was therefore performing the service contemplated by the contract, and that being so, I would hold for the reasons given above that the Hague-Visby Rules applied to regulate REL’s obligations during that approach voyage. The casualty having been caused by the unseaworthiness of the vessel resulting from a failure on the part of those for whom REL is responsible, REL is liable to Fyffes for such loss as they have suffered by reason of the vessels not loading at Santo Tomбs or Big Creek. 6. Caribbean Gold’s claim against the Owners This part of the case is more straightforward. It is common ground that the bills of lading under which the bananas shipped at Manzanillo were being carried were governed by the provisions of the Carriage of Goods by Sea Act, 1971. Accordingly, Mr. Glennie accepted that only two questions arose: was there a loss caused by unseaworthiness? If so, was that unseaworthiness caused by the owners’ failure to exercise due diligence to make the vessel seaworthy prior to loading at Manzanillo? For reasons I have already given both these questions must be answered in the affirmative and accordingly the owners are liable to Caribbean Gold for such loss as was caused by their failure to carry the bananas to their destination. 7. Damages – issues arising between Fyffes and REL In this case a large number of issues were raised in relation to damages, most of them by REL in connection with the claim made against it by Fyffes’ in which, of course the owners were indirectly interested by reason of the contribution proceedings and on which they adopted REL’s submissions. These included issues concerning remoteness of damage, causation, mitigation and straightforward questions of quantum. (a) Remoteness Mr. Young’s primary submission was that the loss claimed by Fyffes, namely, a loss of the value of the goods at destination was too remote. He submitted that the correct measure of damage in respect of REL’s failure to load at Santo Tomбs and Big Creek was simply the additional cost of obtaining alternative tonnage, in support of which he relied on Scrutton at pp. 400-402 and Voyage Charters pp. 455-456. Many other vessels, he said, were available during the week or so following the casualty which could have carried bananas to the U.K.; the real problem was that the cargo due to be loaded at Santo Tomбs could not wait that long for shipment and that difficulties transporting container barges from Big Creek to Puerto Cortйs prevented shipment of bananas from Belize. None of those problems would ordinarily have been within REL’s contemplation at the time the charter was made and therefore any loss based on the value in Europe of the bananas that would otherwise have been carried from those ports could only be recoverable under the second limb of the rule in Hadley v. Baxendale, (1854) 9 Ex. 341. Since Fyffes could not establish the facts necessary to succeed under that limb their claim must fail because the loss was too remote. In my judgment this argument fails both as a matter of fact and as a matter of law. Bananas have been carried from the Caribbean and Central America to Europe for many years and I accept the evidence of Mr. Templeman that it is the practice to cut fruit in advance of the vessel’s arrival to ensure that loading can begin without delay and be completed as quickly as possible. I should be very slow to accept that REL, who are experienced operators of reefer vessels which are used for the carriage of a variety of fresh fruit, including bananas, were not well aware of the general nature of the trade and how it is conducted. Not surprisingly, there was no evidence from REL that it was unaware of these matters, and such evidence as there is suggests that it was and that the importance which Fyffes attached to regular and accurate information about vessels’ movements and the reasons for it were explained to REL during the negotiations which preceded the contract. In my view it must have been within REL’s contemplation that if, having given the notices called for by cl. 29, a vessel broke down shortly before she was due to arrive at a loading port, there might well be a loss of cargo because of its perishable nature. The position in relation to the cargo to be shipped at Big Creek is slightly different inasmuch as the vessel was due to load there after she had completed at Santo Tomбs. In those circumstances a total loss of cargo may well have appeared less likely given that fruit might not have been cut and that more time was available for arranging alternative transport. Nonetheless, I do not think that it was beyond the contemplation of REL that Fyffes might be unable to obtain shipping space and so suffer a loss of the cargo. That being the case, I do not think that the precise manner in which that came about is of any significance as far as the question of remoteness is concerned (see Nissho Co. Ltd. v. N.G. Livanos, (1941) 69 Ll.L.Rep. 125 at p. 130 to which I shall refer in more detail shortly), although it may be relevant to questions of causation and mitigation. In fact, by 1991 it had become difficult if not impossible for practical purposes to ship bananas from Belize otherwise than directly on to ocean-going vessels through the port at Big Creek. In earlier times fruit had been loaded into refrigerated containers which were towed on barges to Puerto Cortйs for transfer into liner vessels. That required a stock of containers and a crane to handle them as well as the necessary tug and barges, but after the port at Big Creek was constructed these facilities fell into disuse. By March, 1991 the crane was no longer in working order and the tug was apparently at risk of being arrested in Puerto Cortйs. Shipment in that manner from Big Creek was no longer a practical proposition, at any rate without plenty of warning and the provision of new equipment. In support of this part of his argument Mr. Young sought to draw support from cl. 1 of the bill of lading which in his submission specifically excluded loss of the market value of the cargo at destination. The relevant part of cl. 1 provides as follows: The carrier does not undertake that the goods shall arrive at the Port of Discharge at any particular time or to meet any particular market or use and the carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect or consequential loss or damage caused by delay or, save as is expressly provided herein, otherwise. The short answer to this point is that this part of cl. 1 is not directed to the present situation. It is concerned with the situation in which the goods are carried to their destination under the contract but, by reason of some event for which the carrier is responsible, arrive there later than would otherwise have been the case. I do not think that it can properly be read as applying to the case where the carrier fails to carry the goods at all. Fyffes’ claim in the present case is not for damages caused by the late arrival of the goods, but for damages for failure to carry them at all and does not fall within this provision. Mr. Flaux submitted that where a shipowner has failed to load goods, as REL did in this case, damages may be assessed on alternative bases: the additional cost of transport by other means, that is, the difference between the market rate and the charter rate of freight; or the cost of replacing the goods at the port of discharge at the time when they ought to have arrived (normally equal to the sound arrived value of the goods), less any value which the goods have at the port of loading, freight and other savings. In support of that proposition he referred me to Scrutton at p. 402, and McGregor on Damages, 15th ed., pars. 1142-1147, and also to the cases of Nissho Co. Ltd. v. N.G. Livanos, (1941) 69 Ll.L.Rep. 125 and A/S D/S Heimdal v. Questier & Co. Ltd., (1949) 82 Ll.L.Rep. 452. I start from the principle that Fyffes are entitled to recover the loss which flows naturally in the ordinary course of events from the breach of contract. In the case of a contract for the carriage of goods by sea the natural and obvious consequence of the shipowner’s failure to load and carry the cargo is that the owner of the goods is deprived of the benefit of having them at the agreed destination when they ought to have arrived. Prima facie, therefore, the loss he suffers is represented by the market value of the goods at that time and place. However, he may be able to avoid or reduce that loss in one of two ways. If alternative shipping space can be obtained he may be able to mitigate his loss by having the goods carried by another vessel, in which case his loss will be confined to any additional cost of carriage and other expenses as well as any loss caused by the delay to the goods reaching their destination. Alternatively, he may be able to obtain substitute goods at the port of destination, in which case his loss will be measured by the cost of so doing, less the value of the goods left at the port of loading and expenses saved in connection with their transport. That does not mean, however, that in either case the sound arrived value of the goods does not remain the starting point for assessing damages, subject to the duty to mitigate. The authorities to which I was referred bear out that approach. In McGregor on Damages at pars. 1142 and 1143 the learned editor puts the matter in this way: Where the defendant has failed to carry the goods at all. . .two alternative measures appear to be open to the plaintiff to put him in the position he would have been in had the carriage contract been performed. First, he may engage substituted transport to get the goods to the contractual place for delivery and claim as damages the cost of doing so less the price he would have paid under the contract with the defendant, i.e. the market rate of freight less contract rate of freight, and in addition the amount by which the price at the place of delivery has fallen between the contractual time for delivery and the arrival of the goods by the substitute transport when this is necessarily later. Or, secondly, he may buy similar goods at the contractual place for delivery and claim the cost of so replacing less the sum of the value of the goods at the place of loading, the amount of freight and the amount of insurance. If the circumstances allow of either course of action on the plaintiff’s part. . .it would seem that on general principles of mitigation he will be bound to adopt that which is less costly, subject always to the consideration that all that is required of him is to act reasonably. In Nissho v. Livanos, (1941) 69 Ll.L.Rep. 125 the claimants chartered Eugenie Livanos or Evi Livanos for the carriage of a cargo of salt from Port Said (Port Sudan was later substituted) to Japan. The respondents nominated Eugenie Livanos to perform the charter and the claimants in their turn sold the cargo on a c. & f. basis to buyers in Japan and nominated Eugenie Livanos as the carrying vessel. Eugenie Livanos was unable to carry the cargo and in due course the respondents offered to perform the contract with Evi Livanos instead. However, a permit naming the vessel was required to obtain the credit necessary to enable the importation to be carried out. The claimants had obtained a permit naming Eugenie Livanos and the Japanese government refused to alter it to allow Evi Livanos to be substituted. The contract could therefore not be performed and the claimants claimed damages for its repudiation. A question arose whether the damages should be measured by reference to the difference between the charter and the market rates of freight, the claimants’ loss of profits, or the cost of replacing the cargo in Japan less the value of the cargo at the port of loading, freight and insurance. In relation to this question Lord Caldecote, C.J. began by pointing out that there was in fact no alternative vessel available to perform the charter and so no market rate was available which would enable a calculation of the difference between market rate and charter rate to be made. He continued as follows (p. 129): As I have said, [the difference between the market rate and the charter rate of freight] is not a proper measure in this case. In those circumstances, it appears to me that the ordinary rule applies, which takes the cost of the replacement of the cargo at the port of discharge after deducting the value, plus the freight and insurance, at Port Sudan. That is in accordance with what is laid down in Scrutton on Charterparties, 14th ed., at p. 453, where, having first dealt with the case where other ships could be obtained for the purpose of fulfilling the charter, the learned author deals with the position which arises when a substitute ship cannot be procured. The passage is as follows: When, however, a substituted ship cannot be procured, the measure of damages payable to the charterer is the cost of replacing the goods at their port of destination at the time when they ought to have arrived, less the value of the goods at the port of shipment and the amount of freight and insurance upon them. This passage appears in the same terms at p. 402 of the current (19th) edition of Scrutton. It is interesting to note that the respondents in that case raised an argument similar to that advanced by Mr. Young here, namely, that the loss measured by reference to the value of the goods at the port of discharge was too remote because (in that case) the respondents did not have in contemplation the refusal of the Japanese government to allow the alteration of the permit which made the difference in freight measure inapplicable. That argument was rejected on the grounds that the parties must have had it in contemplation that the measure of damages would be the increased cost of freight of another ship was available, or, if none were available, that the damages would be measured by reference to the value of the goods at the port of discharge. It did not matter how the circumstances came about which rendered one or other of those measures appropriate in the instant case. In my view that is fatal to Mr. Young’s argument that a loss measured by reference to the value at the port of discharge is too remote, however, it may have come about. In A/S D/S Heimdal v. Questier Co. Ltd., (1949) 82 Ll.L.Rep. 452 a vessel had been chartered to carry a cargo of logs from Port Gentil to Cape Town. The charterers made a claim against the owners alleging a failure to load a full cargo and succeeded in part. No alternative shipping space was available for the cargo that was shut out and in those circumstances Mr. Justice Morris held that the charterers were entitled to recover damages based on the replacement value of the cargo in Cape Town. It is worth noting that in assessing that value the Court did not regard itself as bound by the price at which the charterers had agreed to sell the logs to their buyers. In his judgment Mr. Justice Morris said at p. 472: . . . . . if the parties at the time of the charter had given consideration to what would happen if the owners wrongly refused to carry 51 tons of okoume logs from Port Gentil to Cape Town, what the parties would mutually have had in mind would be that in the first place the charterers would seek to put those 51 tons on some other vessel, . . but . . . that, if a vessel could not be found, then loss would result at Cape Town. . . . If the 51 tons had been carried the defendants would have had 51 tons in Cape Town which would then have been of a certain value, namely, the cost, or replacement value or the value in Cape Town but disregarding the price paid under a particular contract of sale. In my judgment these decisions support Mr. Flaux’s submission that damages for failure to carry a cargo may be measured either by the difference between market and charter rates of freight or by reference to the value of the goods at the port of discharge (with appropriate deductions). Both measures of damage must be taken to have been within the contemplation of the parties because they are different ways of measuring the loss which the charterer suffers by not having his goods carried to the contractual destination. Which will be the appropriate measure in any given case will no doubt depend on the circumstances of the case, given that the plaintiff is under a duty to act reasonably to mitigate his loss. I do not consider that the passages in Scrutton and Voyage Charters to which I was referred are inconsistent with this view. They simply reflect the fact that in many cases alternative shipping space will be available, and, if it is, it will probably be incumbent on the charterer to mitigate his loss by making use of it. I do not accept, therefore, that the charterer must be able to show that alternative space was not available before he can recover damages measured by reference to the value of the goods at the port of discharge, as Mr. Young submitted. That does not, however, prevent the shipowner from seeking to establish that the charterer failed to act properly in mitigation, and I shall come to consider this aspect of the matter a little later. In principle, therefore, I consider that Fyffes are entitled to recover damages assessed by reference to the replacement value of the goods at the time when they would otherwise have arrived at their destination, less any residual value of the goods at the port of loading and savings on freight, insurance and other voyage expenses… Опубликовано: 21.01.2010 Комментирование этой статьи закрыто. |
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