Samick Lines Co Ltd v Owners of 'Antonis P Lemos'

[1985] A.C. 711

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(Judgment by: Parker LJ (Court of Appeal - 30-31 January, 14 February 1984) (including background))

Between: Samick Lines Co Ltd - Respondent
And: Owners of 'Antonis P Lemos' - Appellants

Court:

Judges: Cumming-Bruce LJ

Parker LJLord Scarman
Lord 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.

Hearing date: 14 January 1985
Judgment date: 21 February 1985

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Judgment by:
Parker LJ (Court of Appeal - 30-31 January, 14 February 1984) (including background)

The plaintiffs sub-chartered the defendants' ship under a time charter, with liberty to sub-let, having entered into a voyage charterparty with A. to carry grain from the United States of America to Egypt and having guaranteed the ship's arrival draught not to exceed 32 feet in salt water. On arrival at Alexandria the draught of the ship exceeded 32 feet and she was unable to berth until she had reduced her draught by discharging some of her cargo into lighters. That operation caused delay and involved the plaintiffs in additional expense.

The plaintiffs brought an action in rem claiming damages against the defendants for their negligence in allowing the ship to be loaded to such an extent that her draught on arrival was excessive. The defendants sought to set aside the writ and warrant of arrest granted to the plaintiffs on the ground that the High Court had no Admiralty jurisdiction in respect of the plaintiffs' claim since it did not fall within section 20(2) of the Supreme Court Act 1981. ^[F1] Sheen J. made the order sought setting aside the writ and warrant of arrest. On appeal by the plaintiffs, the Court of Appeal allowed the appeal.

On appeal by the defendants:-

Held, dismissing the appeal, that the language of section 20(2)(h) of the Supreme Court Act 1981 was wide enough to cover claims whether in contract or in tort arising out of any agreement relating to the carriage of goods in a vessel, and that for such an agreement to come within paragraph (h) it was not necessary that the claim in question he directly connected with some agreement of the kinds referred to in it or that the agreement be one made between the two parties to the action themselves; that, accordingly, in the circumstances, the plaintiffs' claim was one within the Admiralty jurisdiction of the High Court (post, pp. 722D-F, 725B-D, 731C-D, 733A-B).

The St. Elefterio [1957] P. 179 and The Sennar [1983] 1 Lloyd's Rep. 295 approved.

The Nuova Raffaelina (1871) L.R. 3 A. & E. 483 distinguished.

Dicta of Viscount Dilhorne and Lord Salmon in Union of India v. E. B. Aaby's Rederi A/S [1975] A.C. 797, 814, 817, H.L.(E.) and Gatoil International Inc. v. Arkwright-Boston Mutual Insurance Co. [1985] A.C. 255, H.L.(Sc.) considered.

Decision of the Court of Appeal, post, p. 715C; [1984] 2 W.L.R. 825; [1984] 2 All E.R. 353 affirmed.

Appeal from Sheen J.

By a writ in rem dated 20 May 1983, the plaintiffs, Samick Lines Co. Ltd., as sub-charterers of the defendants' ship, the Antonis P. Lemos under a time charter dated 16 October 1981 made between Sammisa Co. Ltd. as owners and the plaintiffs as charterers, claimed damages for the loss suffered by them by the negligence of the defendants in causing or permitting the ship to load a quantity of corn at Houston, Texas, United States of America on 20 and 21 October 1981 such that her draught on arrival at Alexandria, Egypt on 11 November 1981 exceeded 32 ft. rendering her unable to berth without lightening. The plaintiffs also applied for a warrant to arrest the ship.

On 24 May 1983, on a notice of motion, the defendants sought an order that the writ of summons and the warrant of arrest be set aside and that the ship be released from arrest on the ground that the Admiralty Court had no jurisdiction in respect of the plaintiffs' claim and/or that such claim did not fall within section 20(2) of the Supreme Court Act 1981. On 27 May 1983 Sheen J. discharged the order.

The plaintiffs appealed to the Court of Appeal on the grounds, inter alia, that the judge had erred in law in holding that the plaintiffs' claim was not such a claim as was described in section 20(2)(h) of the Supreme Court Act 1981 and that such a claim only came within section 20(2)(h) if it had its origin in an agreement between the plaintiffs and the defendants and/or if there was a contractual nexus between the plaintiffs and the defendants.

The facts are stated in the judgment of Parker L.J.

Bernard Rix Q.C. and Peter Hayward for the plaintiffs. The words "arising out of" in section 20(2)(h) of the Supreme Court Act 1981 are words of wide meaning and require only a general factual connection between the claim and the agreement. By giving effect to the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships signed in Brussels on 10 May 1952, the Act of 1981 should be given a broad construction. In particular, it is established authority that "arising out of" does not require that the claim should have its origin in an agreement between the plaintiffs and defendants or be made under any such agreement, or that there should be any contractual nexus between the plaintiffs and defendants.

A claim in tort is sufficient provided it arises out of an agreement "relating to the carriage of goods in a ship" under section 20(2)(h) of the Act of 1981: see The St. Elefterio [1957] P. 179; The Moschanthy [1971] 1 Lloyd's Rep. 37 and The Sennar [1983] 1 Lloyd's Rep. 295, 301-302. In any event there is a sufficient connection between claim and agreement if the agreement is a material fact for pleading purposes: The Sennar [1983] 1 Lloyd's Rep. 295, 302.

The tort of negligence has three components, duty, breach and damage. There is sufficient connection between the claim and agreement if, as in the present case, the agreement is relevant to establish one or more of those components. The judge erred in holding on the basis of The Nuova Raffaelina (1871) L.R. 3 A. & E. 483 that the claim must have its origin in an agreement between the plaintiffs and the defendants because

(a)

that decision was related to county court jurisdiction under the County Courts (Admiralty Jurisdiction Act 1868) Amendment Act 1869 (33 & 34 Vict. c. 51), to which a very restricted meaning was given for reasons which have no application to the High Court jurisdiction pursuant to the Act of 1981 (see The Eschersheim [1976] 1 W.L.R. 339, 347-348 and [1976] 1 W.L.R. 430, 437-438) and

(b)

the actual basis of the decision was that the plaintiff brokers "cannot sue upon this instrument made between other parties": The Nuova Raffaelina, L.R. 3 A. & E. 483, 486 per Sir Robert Phillimore, i.e. an application of the principle that a third party cannot sue upon a contract to which he is not a party.

Nor does The Eschersheim [1976] 1 W.L.R. 339 provide support for the narrower construction preferred by the judge. That was a case in which the plaintiff ship and cargo owners were both suing on a salvage agreement, not in tort. The argument that the salvage agreement (in which no salvage tug was referred to by name or at all) was not an "agreement relating to the use or hire of a ship" was rejected and it was held that the words should be given a wide and not restricted construction ([1976] 1 W.L.R. 339, 347-348; [1976] 1 W.L.R. 430, 437-438). Finally, the judge erred in suggesting that, unless the claim has its origin in an agreement between the plaintiffs and the defendants, there would be no need for the words "any agreement relating to." The omission of these words would widen the jurisdiction considerably to cover all claims arising out of wholly extra-contractual use of a ship.

Mark Saville Q.C. and Jonathan Gaisman for the defendants. Section 20(2)(h) of the Supreme Court Act 1981 should be restricted to claims (whether or not in contract) arising out of an agreement between claimant and respondent. It demands a contractual nexus between the parties. Such a construction is to be preferred as it alone gives force to all the words of the subsection.

The assertion of the necessity for a contractual nexus is wholly consistent with the authorities; the denial of such necessity is contrary to them: see The St. Elefterio [1957] P. 179; The Moschanthy [1971] 1 Lloyd's Rep. 37; The Sennar [1983] 1 Lloyd's Rep. 295 and The Nuova Raffaelina, L.R. 3 A. & E. 483, where the absence of a contractual nexus was held to vitiate the purported invocation of the court's jurisdiction. Further, such a construction is consistent with the emphasis on the word "agreement" in section 20(2)(h) of the Act of 1981, the Brussels Convention of 10 May 1952, and the authorities, for example The Eschersheim [1976] 1 W.L.R. 430, 437. By contrast, the plaintiffs' construction is artificial and misunderstands the nature of their own pleaded cause of action. It is argued, artificially, that section 6 of the Interpretation Act 1978 enables the plaintiffs to assert that the claim arises out of "agreements," presumably ignoring the word "any" in the Act of 1981, and that the duty allegedly owed by the defendants to the plaintiffs arises out of a proximity created by "agreements," i.e. the head and sub-charter. This is fallacious

(i)

because, since 1932, the law has been that any such duty arises wholly independently of any contract or contracts and

(ii)

contrary to any argument that no duty would be owed but for the two charters,

the true analysis is that these agreements only provide a factual explanation for the duty; they do not provide a legal basis for it, still less a legal basis for the "claim," and least of all can it be argued that the claim arises out of "any agreement(s)."

The matter is put beyond doubt in the defendants' favour by a consideration of the words "arising out of" in section 20(2)(h) of the Act of 1981 - they are equivalent to and synonymous with "arising under": Union of India v. E.B. Aaby's Rederi A/S [1975] A.C. 797. The matter is further confirmed by analogy with the wording of arbitration clauses. Any claim in tort must be "closely connected" with the contract: Astro Vencedor Compania Naviera S.A. of Panama v. Mabanaft (G.m.b.H. [1971] 2 Q.B. 588. The plaintiffs' construction is therefore unlimited and imprecise and would effect a radical and undesirable extension of the Admiralty jurisdiction.

Rix Q.C. replied.

Cur. adv. vult.

14 February. The following judgment was handed down.

PARKER L.J. By a charterparty dated 16 October 1981 between the plaintiffs as charterers and Sammisa Co. Ltd. of Seoul, described as owners, the plaintiffs chartered the defendants' vessel Antonis P. Lemos for one time chartered trip. The charterparty provided that the charterers were to have liberty to sub-let the vessel but were to advise owners of any sub-letting.

At that time the vessel was on time charter to Sammisa Co. Ltd., under a charterparty dated 22 February 1980 between Sammisa and a company called Containertank Corporation, who were described therein as disponent owners. That charterparty too contained a liberty to sub-let with an obligation to advise of any sub-letting. All that is known of the relationship between Containertank and the defendants is that the defendants had by agreement entrusted the operation of the vessel to them.

Shortly before the charterparty of 16 October, namely on 21 September, the plaintiffs had entered into a voyage charterparty with Agri Industries for the carriage of a cargo of 25,000 metric tons of heavy grains and/or sorghums and/or soyabeans, 10 per cent. more or less in the plaintiffs' option, from America to one or two safe berth/anchorages Alexandria or in the charterer's option, one or two safe berths/ anchorages Port Said. By such charterparty the plaintiffs guaranteed the vessel's maximum arrival draught not to exceed 32 ft. in salt water. The charterparty did not name the vessel but provided that the performing vessel was to be declared "at least 10 days prior to E.T.R. load port." The vessel Antonis P. Lemos was duly declared under the voyage charter and on 20 and 21 October loaded a cargo at Houston. She arrived in Alexandria on 11 November but her draught then exceeded 32 ft. As a result she was unable to berth until lightened and delay was thereby caused.

As a result of the breach of the guarantee of maximum draught, the plaintiffs had to pay the costs of lightening and incurred certain other expenses and loss. In order to recover such losses they issued on 20 May 1983 a writ in rem in the Admiralty Court against the owners, at the same time obtaining a warrant for the arrest of the vessel pursuant to which she was duly arrested. The endorsement on the writ is in the following terms:

"The plaintiffs, as sub-charterers of the defendants' ship Antonis P. Lemos under a time charter dated 16 October 1981 made between Sammisa Co. Ltd. as owners and the plaintiffs as charterers, claim damages for the loss suffered by them by reason of the negligence of the defendants, their servants or agents in causing permitting or suffering the said ship to load a quantity of corn at Houston, Texas, U.S.A. on 20 and 21 October 1981 such that her draft on arrival at Alexandria, Egypt on 11 November 1981 exceeded 32 ft. rendering her unable to berth without lightening."

It will be observed that the claim is a straightforward claim in tort and that the negligence alleged relates solely to the loading into the vessel of such a quantity of corn that her draught on arrival exceeded 32 ft.

By notice of motion dated 24 May 1983, the defendants sought an order that the writ and warrant of arrest be set aside and the vessel released from arrest on the ground that the High Court had no jurisdiction in respect of the plaintiffs' claim and/or that such claim did not fall within section 20(2) of the Supreme Court Act 1981. The defendants' motion was heard by Sheen J. on 26 May 1983. He made the order sought, giving his reasons for so doing on 7 June 1983. The plaintiffs now appeal by leave of the judge.

Subject to a new point raised by leave in this court, with which I shall deal briefly at the end of this judgment, the sole question for determination is whether the plaintiffs' claim falls within section 20(2)(h) of the Supreme Court Act 1981. Section 20 of the Act of 1981, so far as presently material, provides:

"(1)

The Admiralty jurisdiction of the High Court shall be as follows, that is to say -

(a)

jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);

...

(c)

any other Admiralty jurisdiction which it had immediately before the commencement of this Act;

...

(2)

The questions and claims referred to in subsection (1)(a) are -

...

(g)

any claim for loss of or damage to goods carried in a ship;

(h)

any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

..."

The judge held that in order to fall within paragraph (h) the claim must have its origin in an agreement between the plaintiffs and the defendants and that, since there was no such agreement the court had no jurisdiction. The plaintiffs submit that the judge erred in law and that it is sufficient to bring a claim within paragraph (h) of section 20(2) if either

(i)

there is a general factual connection between the claim and an agreement of the relevant kind, or

(ii)

such an agreement is a material fact for the purposes of pleading the claim, or

(iii)

such an agreement is relevant to establish one or more of the three components of a claim in negligence, namely, duty of care, breach of that duty and resulting damage, or

(iv)

there is a commmercial nexus between the claim and such an agreement.

The defendants submit that the judge was right and indeed, albeit faintly, that claims within section 20(2)(h) are limited to claims in contract between plaintiff and defendant. Central to the plaintiffs' argument was the proposition that Part I of the Administration of Justice Act 1956, and in particular section 1(1), was based on and intended to give effect to the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships signed in Brussels on 10 May 1952, and thus that it and its successor, section 20(2) of the Supreme Court Act 1981, should be given a liberal and broad rather than a restricted construction, and so construed, if reasonably possible, to conform to the language of the convention. That proposition is well established by authority: see e.g. Stag Line Ltd. v. Foscolo. Mango & Co. Ltd. [1932] A.C. 328, 350 and The Eschersheim [1976] 1 W.L.R. 430, 435-436.

There were here unquestionably a number of agreements falling within section 20(2)(h) of the Act of 1981. Unless, therefore, that paragraph must be read as referring only to agreements between the plaintiff and the defendant, the only question for consideration is whether the plaintiffs' claim is a claim arising out of any of those agreements.

Section 20(2)(h) contains no words of limitation restricting the agreements mentioned to agreements between the plaintiff and the defendant. It would have been simple so to limit them if any such limitation had been intended. The Convention contains no words of limitation either. I am unable to find any sufficient reason for importing such words, and would only do so if compelled by authority. In the absence of such authority I would accordingly hold that, if the plaintiff can establish that his claim arises out of an agreement of the relevant kind, i.e. an agreement relating to the carriage of goods in a ship or to the use or hire of a ship, then even if such agreement is not one between himself and the defendant, that claim falls within paragraph (h).

The plaintiffs here assert negligence in loading in America such a quantity of corn that the vessel's arrival draught exceeded 32 ft. in salt water. If that claim is sustainable, a matter which does not presently arise, it can only be because

(a)

the plaintiffs had under the voyage charter guaranteed the maximum draught on arrival;

(b)

the master or the defendants were aware of that guarantee; and, probably,

(c)

the charterparty of 16 October included provisions that the master should be under the orders and directions of the plaintiffs as regards employment and that loading should be under the supervision of the master (which provisions were also in the headcharter).

Again, in the absence of authority I would hold that such a claim plainly arises out of the voyage charterparty, or the charterparty of 16 October, or both. I do so principally because, in the absence of the contractual guarantee and the master's or owners' awareness of it, it would, as it seems to me, be quite impossible to contend that there was a duty to load only such quantity as would enable the vessel to arrive at Alexandria with a maximum draught of 32 ft. This was not seriously disputed by the defendants.

Whether the plaintiffs' claim will succeed or not is another matter. There may be one or more impregnable defences but at this stage they do not arise: see The St. Elefterio [1957] P. 179.

There is no authority which compels me to reach a different conclusion. In the above case Willmer J. held that the words were wide enough to cover claims in tort and this was followed by Brandon J. in The Moschanthy [1971] 1 Lloyd's Rep. 37 and by Sheen J. himself in The Sennar [1983] 1 Lloyd's Rep. 295. None of these three cases afford in my view any real assistance on the question whether the relevant agreement must be between the plaintiff and defendant.

In the last of them, however, Sheen J. tested the matter by considering whether the claim could be pleaded without reference to a relevant contract, in that case a bill of lading. In the present case he took the view that the plaintiffs could plead their case without reference to the charterparty and that consequently the claim could not be said to arise out of it.

Since he did not in his judgment refer to the voyage charterparty, I take it that he was referring to the charterparty of 16 October. It may be that the claim could be pleaded without reference to that charterparty, although I doubt it, but reference to the voyage charterparty would, as I have said, be essential.

I accept that if a cause of action cannot be pleaded without reference to a relevant agreement it is a factor to be taken into consideration when determining whether a claim falls within the words of section 20(2)(h) of the Supreme Court Act 1981, but I must not be taken as asserting that if a relevant agreement has to be referred to that is conclusive on the question whether the claim arises out of the agreement. I do not consider that it is either necessary or desirable to attempt to formulate any test, and I can readily envisage a case, for example, where a cause of action could be pleaded without reference to an agreement but where a particular head of damage would require such reference.

In reaching his conclusion the judge, apart from The Sennar [1983] 1 Lloyd's Rep. 295, relied upon a passage in the speech of Lord Diplock in The Eschersheim [1976] 1 W.L.R. 430. There the question for decision was whether claims under a salvage agreement, made by the master on behalf of both the owners of the Erkowit and the owners of her cargo, fell within certain paragraphs of section 1(1) of the Administration of Justice Act 1956. One of the paragraphs was paragraph (h). As to this, the issue was whether the salvage agreement was an agreement relating to the use or hire of any ship. In considering this question Lord Diplock said, at p. 435, that the agreement was entered into on behalf of the cargo owners as well as the ship owners. Sheen J. said below [1983] 2 Lloyd's Rep. 310, 312, in relation to this:

"That statement would have been unnecessary unless it was essential to show that a plaintiff must be a party to the agreement in order to establish that the claim 'arises out of the agreement.'"

I accept readily that Lord Diplock is most careful in the use of language but with respect to the judge it is, in my view impossible to attribute to Lord Diplock's observation any intention to indicate that, for a claim to fall within paragraph (h), the relevant agreement must be between plaintiffs and defendants. In the context Lord Diplock was, in my view, doing no more than rehearsing a fact. Mr. Saville, for the defendants, did not seriously argue to the contrary. I gain no assistance from The Eschersheim other than that already mentioned relating to the general approach to the construction of the paragraph.

The judge also relied on The Nuova Raffaelina (1871) L.R. 3 A. & E. 483. In that case the plaintiffs were brokers and had negotiated a charterparty between owners and charterers which provided for them to be paid commission. The sole question was whether they could sue on the agreement, but Sir Robert Phillimore said, at p. 486:

"the appellants, who are brokers, cannot sue upon this instrument made between other parties, whatever use they might make of it as evidence in another action upon an implied contract for their services. As the jurisdiction of the Court of Passage must in this case be founded upon a claim growing out of the charterparty, a claim which I have said the appellants cannot maintain, I must ... dismiss the appeal ..."

The words of the statute in that case were the same as in section 20(2) of the Supreme Court Act 1981 but the decision was no more than a decision that the brokers could not sue upon a contract to which they were not parties. It is not authority that the words only cover claims arising out of agreements to which plaintiffs and defendants are parties and even if it were it is not binding. None of the other cases cited in argument afforded any assistance.

Whilst in my judgment the judge erred in holding that the claim did not fall within section 20(2)(h) of the Act of 1981 I should make it plain that I reject not only the defendants' contentions, but also the suggested tests advanced by Mr. Rix, for the plaintiffs. It is sufficient for the purposes of this appeal to say that on the ordinary meaning of the words the plaintiffs' claim is, in my view, a claim arising out of a relevant agreement notwithstanding that such agreement is not between the plaintiffs and the defendants, and on that simple ground I would allow this appeal.

This makes it unnecessary to deal with the new point raised in this court, which was that, even if the claim did not fall within section 20(2)(h), there was still jurisdiction by virtue of the provisions of section 20(1)(c) which preserved any pre-existing Admiralty jurisdiction. By virtue of this and a similar preservation in section 1(1) of the Administration of Justice Act 1956, it was argued that the plaintiff could rely on the provision in section 22(1)(a)(xii)(3) of the Supreme Court of Judicature (Consolidation) Act 1925 which conferred Admiralty jurisdiction in respect of any claim "in tort in respect of goods carried in a ship."

The point was raised as a result of observations made by Brandon J. in The Queen of the South [1968] P. 449, 455. It was not seriously pursued in this court and in view of that fact and the fact that it is not necessary to decide it, I say only that the plaintiffs' claim does not appear to me to be a claim in tort in respect of the goods carried in the vessel and that, even if it is, it does not follow that the jurisdiction in rem, which is what matters here, goes with it. Section 21(1) of the Supreme Court Act 1981 permits actions in personam in all cases within the Admiralty jurisdiction. Actions in rem, however, may only be brought in certain cases which do not include cases falling within section 20(1)(c). Unless, therefore, section 20(1)(c) must be construed as preserving not only the Admiralty jurisdiction but also the power to exercise that jurisdiction in rem, the preserved jurisdiction would not avail the plaintiffs.

Mr. Saville submitted that, since Supreme Court Act 1981 did not provide for actions in rem in those cases in which there was Admiralty jurisdiction only by virtue of section 20(1)(c), that was an end of the matter. The point was not further argued. Mr. Saville's argument appears at first sight to be a complete answer, for to construe section 20(1)(c) in the manner necessary to circumvent it presents formidable difficulties. It is unnecessary to say more than this.