Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific terms added prevailed over the standard terms printed on the bill of lading. The bill was drafted to express a contract between the shipper and the owner of the vessel. Did the terms protect the shipowner from liability to the cargo owners? Clause 5 could not be construed as a covenant not to sue. The second part did not restrict the operation of the first. The cause of action was perfected not on each occasion when the damage to the cargo worsened, but was complete as soon as more than insignificant damage had occurred. At that time only one of the parties had established ownership. ‘the court should not interpolate words into a written instrument, of whatever nature, unless it is clear both that words have been omitted and what those omitted words were’ Where there is a conflict between printed and handwritten clauses, the handwritten clauses will usually prevail. (Lord Steyn dissenting) If a party, otherwise liable, is to exclude or limit his liability or to rely on an exemption, he must do so in clear words; unclear words do not suffice; any ambiguity or lack of clarity must be resolved against that party.
Otherwise: Owners of cargo lately laden on board the ship or vessel ‘Starsin’ and others (Original Respondents and Cross-appellants) v. Owners and/or demise charterers of the ship or vessel ‘Starsin’ (Original Appellants and Cross-respondents) and two other actions
Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett
[2003] UKHL 12, Times 17-Mar-2003, Gazette 15-May-2003, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyds Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571
House of Lords, Bailii
Carriage of Goods by Sea Act 1971, Hague-Visby Rules 5
England and Wales
Citing:
Appeal from – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ CA 23-Jan-2001
. .
Cited – Glynn v Margetson and Co HL 1893
A printed form of bill of lading contained general words of obligation referring to the goods being shipped ‘in and upon the .. Zena, now lying in the port of Malaga, and bound for Liverpool’. Those words were followed by printed words intended ‘to . .
Cited – Universal Steam Navigation Company Ltd v James McKelvie and Company HL 1923
If there was inconsistency between a term added to a pre-printed form and general descriptions elsewhere in the text, the former should be regarded as the ‘dominating factor’ and as of ‘preponderant importance’. . .
Cited – Hamilton v Mendes 8-Jun-1761
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case. . .
Cited – Simond v Boydell 1779
To seek perfect consistency and economy of draftsmanship in a complex form of contract which has evolved over many years is to pursue a chimera. . .
Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Appeal from – Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) CA 23-Jan-2001
Cargo had been negligently stowed on a ship so that condensation caused damage during the subsequent voyage. The claimant only acquired a title to the cargo after the voyage had commenced. The defendants contended that no duty of care could be owed . .
Cited – Adler v Dickson; ‘the Himalaya’ CA 29-Oct-1954
The defendants were the master and boatswain of the P and O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P and O which . .
At First Instance – The Owners And/Or Demise Charterer Of The Ship Or Vessel ‘Starsin’ v The Owners Of The Cargo Lately Laden Aboard The Ship Or Vessel ‘Starsin’ ComC 2000
. .
Cited by:
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Cited – Dairy Containers Ltd v Tasman Orient Line Cv PC 20-May-2004
PC (New Zealand) The appeal concerned the correct interpretation of a damage limitation clause in a contract for the carriage of goods by sea.
Held: Clause 6(B)(b)(i) must be construed in the context of the . .
Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Cited – Telewest Communications Plc Telewest (Publications) Limited v Commissioners of Customs and Excise CA 10-Feb-2005
The taxpayers sold cable services which were liable to VAT through 28 subsidiaries, and supplied by a third party as part of the same service a listings magazine. They sought exemption from VAT for that part of the consideration related to the . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .
Lists of cited by and citing cases may be incomplete.
Transport, Contract
Leading Case
Updated: 01 December 2021; Ref: scu.179802