Brown v. Turner, Brightman, & Co. [1911] UKHL 679 (30 October 1911)

Brown

v.

Turner, Brightman, & Company.

 

Subject_Ship — Charter — Party — Time — Charter — Exceptions — Strikes.
Facts:

A time-charter of a ship contained the following exceptions—“The owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented by … strikes.” The charterers ordered the ship to the port of N. at a time when to their knowledge a strike was there in operation. Owing to the strike the ship could not obtain a cargo at N. Under the charter-party the charterers could have withdrawn the vessel from the area of the strike and traded with it elsewhere. The charterers refused to pay hire for the period of the ship’s stay at N.

Held that the charterers were not protected by the exception, and were bound to pay the hire.

Headnote:

In an arbitration between the charterers and owners of a ship the arbitrator found the facts proved as stated supra in rubric, and decided in favour of the charterers, subject to the opinion of the Court. Judgment by Bray, J., in the charterers’ favour was reversed by the Court of Appeal ( Cozens-Hardy, M.R., Fletcher Moulton and Farwell, L.JJ.).

At the conclusion of the argument for the appellants their Lordships gave judgment as follows:—

Judgment:

Lord Chancellor (Loreburn)—I agree with the conclusion at which the Court of Appeal has arrived.

The question is a very short one. It turns upon the construction of a clause in this charter-party—whether the charterers were prevented from carrying out this contract by a strike. If by carrying out the contract is meant merely performing the obligation due from the charterers to the owner or the owner to the charterers, then it is quite clear that the strike did not prevent the charterers from doing what they were bound to do, viz., paying the hire of the ship. If upon that clause it can be said that the charterers were prevented from carrying out this contract because they were prevented from enjoying the rights bestowed upon them, then equally I think that the strike has not prevented that. They used all their rights all the time. They took the ship to the port; they chose to keep her there, but the only misfortune was that they could not get a cargo. It was no part of the obligation of the owners to see that they got a cargo. To my mind the real meaning of this clause is that placed upon it by the Court of Appeal. Even if it were not so I do not think that the appellants could succeed, for the reasons which I have stated.

Lord Atkinson—I concur.

Lord Shaw—In this case the arbitrator found that there were other trades in which vessels might be employed within the limits of the charter which would not have been interfered with by any strike. That has been put in purposely by the arbitrator in order to have some effect given to it. When I look to the contract I observe, as is usual in such cases, that the charterers have a right to direct the movements of the vessel. In sending this vessel at a certain date they knew that they were sending it within the area of the strike. Under the charter-party it was clear that they had the power of withdrawing it from the area and placing it elsewhere, and according to the finding of the arbitrator they could have done so, so that the vessel might

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have been employed in carrying cargo during that period. They, however, exercised the option of retaining the vessel within the area of the strike.

Under those circumstances I do not see my way to differ from the view reached by the Court of Appeal on the construction of this clause. The same result is reached by the fact that the charterers have themselves to blame for the results which have followed, and they cannot rely upon this clause.

Lokd Mersey concurred.

Appeal dismissed.

Counsel:

Counsel for Appellants— Atkin, K.C.— Leck. Agent— J. Wicking Neal, Solicitor.

Counsel for Respondents— M. Hill, K.C.— AdairRoche. Agents— Botterell&Roche, Solicitors.

 

 

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