Reardon Smith Line Ltd v Hansen-Tangen
[1976] 3 All ER 570(Judgment by: Viscount Dilhorne)
Between: Reardon Smith Line Ltd
And: Hansen-Tangen
Judges:
Lord Wilberforce
Viscount DilhorneLord Simon of Glaisdale
Lord Kilbrandon
Lord Russell of Killowen
Subject References:
SHIPPING
Charterparty
Description of vessel
Vessel not in existence at date of charterparty
Vessel identified by yard number and name of builders
Vessel built by different builders with different yard number under sub-contract
Original yard number used on export papers
Sub-contract builders a subsidiary of builders named in charterparty
Whether words identifying vessel by reference to yard number and builders part of contractual description
Whether charterers entitled to refuse to take delivery of vessel on ground it failed to comply with description
Case References:
Behn v Burness - (1863) 3 B & S 751; 2 New Rep 184; 32 LJQB 204; 8 LT 207; 9 Jur NS 620; 122 ER 281; Ex Ch, 41 Digest (Repl) 182, 220
Cargo Ships 'El-Yam' Ltd v Invoer-en Transport Onderneming 'Invotra' NV - [1958] 1 Lloyd's Rep 39
Cehave NV v Bremer Handelsgesellschaft mbH - [1975] 3 All ER 739; [1976] 1 QB 44; [1975] 3 WLR 447; [1974] 2 Lloyd's Rep 445, CA; Digest (Cont Vol D) 784, 510a
Charrington & Co Ltd v Wooder - [1914] AC 71; 84 LJKB 220; 110 LT 548, HL; 39 Digest (Repl) 499, 452
Couchman v Hill - [1947] 1 All ER 103; [1947] KB 554; [1948] LJR 295; 176 LT 278, CA; 2 Digest (Repl) 348, 333
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd - [1962] 1 All ER 474; [1962] 2 QB 26; [1962] 2 WLR 474; [1961] 2 Lloyd's Rep 478, CA; 41 Digest (Repl) 363, 1553
Hvalfangerselskapet Polaris Aktieselskap v Unilever Ltd, Hvalfangerselskapet Globus Aktieselskap v Unilever Ltd - (1933) 39 Com Cas 1, HL; 39 Digest (Repl) 490, 384
Lewis v Great Western Railway Co - (1877) 3 QBD 195; 47 LJQB 131; 37 LT 774, CA; 8(1) Digest (Reissue) 60, 350
Moore & Co and Landauer & Co, Re - [1921] 2 KB 519; [1921] All ER Rep 466; 90 LJKB 731; 125 LT 372, CA; 39 Digest (Repl) 528, 660
Prenn v Simmonds - [1971] 3 All ER 237; [1971] 1 WLR 1381; HL, 17 Digest (Reissue) 359, 1264
Schuler (L) A G v Wickman Machine Tool Sales Ltd - [1973] 2 All ER 39; [1974] AC 235; [1973] 2 WLR 683; [1973] 2 Lloyd's Rep 53, HL; Digest (Cont Vol D) 123, 3613a
Utica City National Bank, The v Gunn - (1918) 222 NY 204; 118 N E Reporter 607
Judgment date: 7 October 1976
Judgment by:
Viscount Dilhorne
My Lords, I have had the advantage of reading in advance the speech of my noble and learned friend, Lord Wilberforce, and I only desire to add a few observations.
I agree with him in thinking that the appellants have failed to bring the case within the present rules as to 'description' in connection with the sale of goods. I think that the material words of the 'sub-charter' and the 'intermediate charter' strongly support that conclusion. The preamble to the sub-charter says:
'... the good Japanese flag (Subject to Clause 41) Newbuilding motor tank vessel called Yard No. 354 at Osaka Zosen (hereinafter referred to as "the vessel") described as per clause 24 hereof ...'
The use of the word 'called' followed by the words 'described as per clause 24' is to my mind a clear indication that the words 'Yard No. 354' were not and were never intended to be part of the description of the vessel but only a means of identifying it.
The intermediate charter also distinguished between the identity of the vessel and its description. It made provision for it to be identified at a later date and separately described the vessel. The addendum to the policy provided the identification, stating the vessel was 'to be built by Osaka Shipbuilding Co. Ltd. and known as Hull No. 354'. Again I regard the use of the word 'known' as significant. I too do not take the reference to the ship being built by Osaka Shipbuilding Co Ltd as involving any contractual obligation but as a part of its identification.
In these circumstances, I do not find it necessary to consider whether the present rules as to 'description' in relation to the sale of goods require to be reconsidered and whether they should be treated as applicable to other contracts. Even if they can be, they cannot in my opinion apply to these charters. Strong arguments can no doubt be advanced for not altering rules which have stood for so long and for not now restricting the right of a purchaser of goods to reject goods which do not answer the description of those he agreed to buy. It may be that strong arguments, too, can be advanced for saying that the hirer of an article should have a similar right of rejection when the article does not comply with the description given to him and on the basis of which he agreed to hire. But I now express no opinion thereon.
In my opinion, these appeals should be dismissed.