Samick Lines Co Ltd v Owners of 'Antonis P Lemos'
[1985] A.C. 711(Judgment by: Lord Scarman (including background - appeal from the Court of Appeal))
Between: Samick Lines Co Ltd - Respondent
And: Owners of 'Antonis P Lemos' - Appellants
Judges:
Cumming-Bruce LJ
Parker LJ
Lord ScarmanLord Diplock
Lord Roskill
Lord Brandon of Oakbrook
Lord Templeman
Subject References:
ADMIRALTY
JURISDICTION
Action in rem
Subcharterers' loss arising from ship owners' negligence in loading ship
No agreement between sub-charterers and shipowners
Whether claim arising out of agreement relating to carriage of goods or to use or hire of ship
Legislative References:
Supreme Court Act 1981 (c. 54) - s. 20(2)(h)
Case References:
Aifanourios, The - [1980] S.C. 346
Astro Vencedor Compania Naviera S.A. of Panama v. Mabanaft G.m.b.H. - [1971] 2 Q.B. 588; [1971] 3 W.L.R. 24; [1971] 2 All E.R. 1301, C.A.
Buchanan (James) & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd - [1978] A.C. 141; [1977] 3 W.L.R. 907; [1977] 3 All E.R. 1048, H.L.(E.)
Congreso del Partido, I - [1983] 1 A.C. 244; [1981] 3 W.L.R. 328; [1981] 2 All E.R. 1064, H.L.(E.)
Eschersheim, The - [1976] 1 W.L.R. 339; [1976] 1 All E.R. 441; [1976] 1 Lloyd's Rep. 81, C.A.; [1976] 1 W.L.R. 430; [1976] 1 All E.R. 920, H.L.(E.)
Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co - [1985] A.C. 255; [1985] 2 W.L.R. 74; [1985] 1 All E.R. 129, H.L.(Sc.)
Heyman v. Darwins Ltd - [1942] A.C. 356; [1942] 1 All E.R. 337, H.L.(E.)
Moschanthy, The - [1971] 1 Lloyd's Rep. 37
Nuova Raffaelina, The - (1871) L.R. 3 A. & E. 483
Queen of the South, The - [1968] P. 449; [1968] 2 W.L.R. 973; [1968] 1 All E.R. 1163
St. Elefterio, The - [1957] P. 179; [1957] 2 W.L.R. 935; [1957] 2 All E.R. 374
Sennar, The - [1983] 1 Lloyd's Rep. 295
Stag Line Ltd. v. Foscolo, Mango and Co. Ltd - [1932] A.C. 328, H.L.(E.)
Union of India v. E. B. Aaby's Rederi A/S - [1975] A.C. 797; [1974] 3 W.L.R. 269; [1974] 2 All E.R. 874, H.L.(E.)
Zeus, The - (1888) 13 P.D. 188, D.C.
Judgment date: 21 February 1985
Judgment by:
Lord Scarman (including background - appeal from the Court of Appeal)
Appeal from the Court of Appeal
This was an appeal by the appellants, Sammisa Co. Ltd., owners of the vessel Antonis P. Lemos, from the judgment dated 14 February 1984 of the Court of Appeal (Parker and Cumming-Bruce L.JJ.) allowing an appeal by the respondents, Samick Lines Co. Ltd., sub-charterers, from the judgment dated 27 May 1983 of Sheen J., setting aside a writ in rem and a warrant for the arrest of the ship issued by the respondents, on the grounds that by reason of the subject matter the claim in the action lay outside that part of the jurisdiction of the High Court in respect of which an action in rem might be brought.
The facts are set out in the opinion of Lord Brandon of Oakbrook.
Mark Saville Q.C. and Jonathan Gaisman for the appellants. This appeal raises a point on the construction of section 20(2)(h) of the Supreme Court Act 1981. Sections 20 to 24 of that Act replaced, with certain amendments, sections of the Administration of Justice Act 1956 which brought into effect provisions of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, Brussels, 1952. The issue is whether a claim by sub-sub-charterers in negligence against a shipowner, where there is no contractual relationship between the two, is a
"... claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;".
There are two submissions:
- (1)
- It is necessary to look at the words themselves, the vital words being, "claim arising out of any agreement."
- (2)
- It is then necessary to consider those words in their context.
The words plainly indicate that it is not sufficient for a claimant to succeed merely to show that there was "an agreement." The words "arising out of" must have some force. On the Court of Appeal's construction of section 20(2)(h), they have no force. The words connote something more than merely a connection with an agreement. The claim must have its origins in a relevant agreement, or in the words of a nineteenth-century case, the claim must "grow out of an agreement." The words clearly also connote contractual relationship claims. In the present case, the claim is based on an alleged duty of care not to have an arrival draught at Alexandria of more than 32 feet. That is a claim which arises out of a non-contractual relationship or obligation between the present parties. It is therefore outwith section 20(2)(h).
The words "... arising out of any agreement ..." are plainly words of limitation. The nature of the limitation is that the claim must arise out of an agreement. Compare the language of section 20(2)(g):
"any claim for loss of or damage to goods carried in a ship".
It will be seen that there are no words of limitation in that paragraph. Any construction other than the appellant's offends the presumption against surplusage, in that paragraph (h) might as well read,
"any claim relating to the carriage of goods in a ship or to the use or hire of a ship",
since the carriage of goods in a ship and the use or hire of ships are invariably effected pursuant to agreements. The words "... arising out of any agreement ..." must therefore connote something more, namely, that there exists a contractual nexus between the claimant and the shipowner.
It is pertinent in the present connection to consider the English version of the Brussels Convention of 1952: see articles 1, 2 and 3. Thus, article 1 in defining maritime claims lists various incidents of ship ownership, two of which are
- "(d)
- agreement relating to the use or hire of any ship whether by charterparty or otherwise;
- (e)
- agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; ..."
It is an irresistible inference from the scheme of article 1 that the agreement must be one in which the shipowner is a party. Article 1(1) of the French version of the Convention states,
- "(i)
- 'Créance maritime' signifie allégation d'un droit ou d'une créance ayant l'une des causes suivantes ...".
The expression "ayant l'une des causes suivantes," so far as relevant, supports the appellant's contention.
In the present case, the claim no more arose out of a contractual agreement than did the claim of Mrs. McAlister in Donoghue v. Stevenson [1932] A.C. 562.
The appellant's construction is consistent with the authorities on section 20(2) of the Supreme Court Act 1981 and its predecessors, in particular, the decision in The Nuova Raffaelina (1871) L.R. 3 A. & E. 483, relating to the County Courts Admiralty Jurisdiction Amendment Act 1869. The language of that provision is indistinguishable from the relevant words in section 20(2) of the Act of 1981, and it was there held that the absence of a contractual nexus vitiated the purported invocation of the court's jurisdiction. It is said that that case was concerned only with privity of contract, but that is not so. If the Court of Appeal were right in the present case, that decision was wrong, and ought to have been overruled by the Court of Appeal in the instant case. There have been three cases in which tortious claims under paragraph (h) have arisen: The St. Elefterio [1957] P. 179; The Moschanthy [1971] 1 Lloyd's Rep. 37 and The Sennar [1983] 1 Lloyd's Rep. 295. None of those authorities runs counter to the appellant's argument and, indeed, the denial of the necessity of a contractual nexus between claimant and shipowner as a prerequisite for the operation of section 20(2)(h) is contrary to them.
As for the very recent decision of this House in Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co. [1985] A.C. 255, where this House approved the approach of Lord Wylie to the construction of section 1(1)(h) of the Administration of Justice Act 1956 in The Aifanourios, 1980 S.C. 346 on the words "relating to" in section 47(2)(d) and (e) of the Administration of Justice Act 1956 in both those decisions it was held that those words in their context did not have an unrestricted meaning. It is to be observed that the words "relating to" are even wider than the words "arising out of." In Union of India v. E. B. Aaby's Rederi A/S [1975] A.C. 797, 814H, 817A, Viscount Dilhorne and Lord Salmon stated that the expression "arising out of" was equivalent to and synonymous with "arising under." This puts the matter beyond doubt in the appellant's favour, for the present claim cannot be described as "arising under an agreement."
Bernard Rix Q.C. and Peter Hayward were not called upon.
Their Lordships took time for consideration.
21 February. Judgment of Lord Scarman.
My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives I would dismiss the appeal.