Fukuyo Industries Corporation And Others v The Owners Of The Ship Or Vessel "Griesheim" (West Germany Flag) Now Renamed "Vivacity" Panamanian Flag)

Court:Court of Appeal (Hong Kong)
Judgement Number:CACV70/1983
Judgment Date:24 Aug 1984
CACV000070/1983 FUKUYO INDUSTRIES CORPORATION AND OTHERS v. THE OWNERS OF THE SHIP OR VESSEL "GRIESHEIM" (WEST GERMANY FLAG) NOW RENAMED "VIVACITY" PANAMANIAN FLAG)

CACV000070/1983

IN THE COURT OF APPEAL

1983, No. 70

(Civil)

BETWEEN

FUKUYO INDUSTRIES CORPORATION, OKURA AND CO. G.M.B.H., FEINSTAHL AG, SCHWEIZ KOKOMOTIV-UND MASCHINENFABRIK, HUETTENPRODUKTE A.G. PESTALOZZI, GARL STUERM, UNION UMSCHLAGS A.G., METALLWERKE A.G., and all other persons interested in the cargo now or lately laden on the ship or vessel "GRIESHEIM" (West Germany Flag) now renamed "VIVACITY" (Panamanian Flag) Plaintiffs
(Respondents)

AND

THE OWNERS OF THE SHIP OR VESSEL "GRIESHEIM" (West Germany Flag) now renamed "VIVACITY" (Panamanian Flag) 1st Defendants
(Appellants)
and
M.S. GRIESHEIM UNTERWESER REEDEREI BETEILIGUNGS SCHIFFAHRT GESELLSCHAFT M.B.H. AND CO. K.G. 2nd Defendant
and
NAKAMURA STEAMSHIP CO. LTD.

3rd Defendant

______________

Coram: Sir Alan Huggins, V.-P., McMullin, V.-P. and Barker J.A.

__________

JUDGMENT

__________

Sir Alan Huggins, V.-P.:

1. The respondent Cargo-owners brought an action in the High Court against the appellant Ship-owners for damages arising out of rust damage to a consignment of steel plates. The Ship-owners sought a stay of that action on the ground that the relevant Bills of Lading contained a clause requiring adjudication of disputes in the District Court of Tokyo. The judge refused a stay and the Ship-owners now appeal.

2. The vessel in which the goods were shipped was the Griesheim, which has since been sold and renamed Vivacity. She was at the material time chartered to Trans Global Bulkers Ltd. by a charter-party in the form approved by the New York Produce Exchange and sub-chartered to the Nakamura Steamship Co. Ltd. She was then further sub-chartered to the Fukuyo Industries Corporation under a Baltime charter-party. Proceedings against her (an action in rem) were commenced in Hong Kong by virtue of her presence in Hong Kong waters, and she was arrested.

3. The cargo was consigned from Japanese ports to Europe and was discharged in Antwerp for final delivery in Switzerland, where it was surveyed. There were loading condition surveys of vessel and cargo in Japan. The cargo was surveyed on arrival in Basle and the vessel was again surveyed in Immingham. The carriage was performed under Bills of Lading executed on forms headed "Nakamura Steamship Co.Ltd.". The printed text included the words:

"In witness whereof, the undersigned, on behalf of Nakamura Steamship Co. Ltd. the Master and the Owner of the Vessel, has signed the number of Bill(s) of Lading stated above, all of this tenor and date, one of which being accomplished the others to stand void. "

The signatures were those of Mr. H. Matsuoka, who described himself as "Chief, Business Dept. II" of the Nakamura Steamship Co. Ltd. On the reverse of the bills were printed the detailed conditions, of which those material to this appeal were

"1. (Definitions) The following words both on the face and back of this Bill of Lading having the meanings hereby assigned.
(a) "Carrier" means the Nakamura Steamship Co. Ltd. including the servants, agents and the Master and the vessel and or her owners.
(b) "Merchant" includes the shipper, consignor, consignee, owner or receiver of the Goods and also the holder of this Bill of lading.
(c) "Goods" means the cargo described on the face hereof and if the cargo is packed into container(s) loaded on pallet(s) or unitized into similar article(s) of transport supplied or furnished by or on behalf of the Merchant, include such article(s) of transport as well.

2.

(Clause Paramount) (1) This Bill of Lading shall have effect subject to the provisions of the International Carriage of Goods by Sea Act 1957 of Japan, unless it is adjudged that any other legislation of a nature similar to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on August 25, 1924 compulsorily applies to this Bill of Lading, in which case it shall have effect subject to the provisions of such legislation. The said Act or legislation (hereinafter called the Hague Rules Legislation) shall be deemed to be incorporated herein. (2) If any provision of this Bill of Lading is held to be repugnant to any extent to the Hague Rules Legislation, such provision shall be null and void to that extent but no further.

3.

(Governing Law and Jurisdiction) The contract evidenced by or contained in this Bill of Lading shall be governed and construed by Japanese law except as may be otherwise provided for herein, and any action against the carrier thereunder shall be brought before the Tokyo District Court in Japan.

4.

(Limitation Statutes, Demise Clause) (1) ........ (2) If the Vessel is not owned by, or chartered by demise to the Carrier (as the case may be notwithstanding anything that appears to the contrary), this Bill of lading shall have effect only as a contract with the owner or demise charterer, as principal, as the case may be, made through the agency of the Carrier, who acts as agent only and shall be under no liability whatsoever in respect thereof. "

4. The judge declined to grant a stay on the ground that the ship-owners were not party to the Bills of Lading. In so doing he based his decision on only one of the three points which were taken before him. The same three points have been argued before us and it is desirable that we should state our conclusions on each of them.

5. The first two points relate to the issue whether the Ship-owners, who seek the stay, are in truth party to the Bills of lading and, therefore, entitled to rely on Clause 3. It is common ground that, whether or not the Ship-owners are party to the Bills of Lading, the Bills of Lading must be construed in accordance with the Japanese law. The litigants therefore placed before the judge evidence by experts in Japanese law, and his decision was based upon their opinions. It has been argued before us that, although his findings on the Japanese law must be given great weight, he did not assess the evidence as a matter of the credibility of the witnesses themselves, so that we are in as good a position as he was to decide which evidence was worthy of acceptance: Benmax v Austin Motor Company Limited 1955 1 All E.R. 326.

6. It has been most persuasively argued by Mr. Ribeiro that, although the judge in the end adopted the view of the majority of the experts, their view was based upon a fundamental error, namely that since Japan adopted the substance of the Hague Rules by enacting the Carriage of Goods by Sea Act 1957 (which I will abbreviate to C.O.G.S.A.) only one legal person can be the carrier under any bill of lading for the international carriage of goods by sea and that, where the vessel is being traded by a charterer, that one legal person must be the charterer. It is common ground that under Hong Kong law the Ship-owners would be party to the Bills of Lading with which we are concerned. Perhaps because that would be so, the Plaintiffs originally asserted in their writ a claim for damages for breach of contract against the Ship-owners, but it is not suggested that anything in the nature of an estoppel arises by reason of that assertion.

7. The starting point for Mr. Ribeiro's argument is that the or ordinary meaning of the Bills of Lading is that the charterers have signed on behalf of themselves and of the Ship-owners and that it is for the Cargo-owners to displace that plain meaning. He then submits that if and in so far as the Plaintiffs' experts say that the words of the Bills of Lading do not mean what they appear to mean the evidence is unsatisfactory both because it is inconsistent and because it can be shown to be ill-founded. Moreover, he contends that the view which commended itself to the judge would lead to commercial chaos - a result which, he says, would follow to an even greater extent from the Ship-owners' argument on the second point. Here he says merely that bills of lading are documents which are intended to have international effect and which, therefore, ought to be construed according to their apparent tenor and not by applying a rule of construction peculiar to one State. I am not sure that he went so far as to contend that such a peculiar rule should not be applied if it were clearly established: at least he submitted that there was strong ground for hesitation before concluding that such a rule had been established.

8. Since the Cargo-owners concede that the burden lies on them to show that the Japanese law would produce a result different from that which would be reached under English law, it is convenient to review their evidence first. All their opinions were set out in the unsatisfactory language and form thought appropriate for telex messages. For ease of reading I shall make minor changes to the language and reproduce them in both upper and lower case.

9. Mr. Nishiyama recognized that the words on the front of the Bills of Lading might prima facie appear to suggest that the Nakamura Steamship Co. Ltd. was signing as agent of the...

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