032-NLR-NLR-V-45-WILHELMSON-et-al.-v.-THE-ATTORNEY-GENERAL.pdf
Wilhelmson v. The Attorney-General.
103
[In the Colonial Court of Admiralty.]
1944Present: Howard C.J. (President).
In Prize1939—No. 1
WILHELMSON et at. v. THE ATTORNEY-GENERAL.
Part Cargo ex m.v. “ Tarn ’*.
Prize—Contrabandof war—Lawfulseizure—Claim forfreight—Landing charges
and agency foes—Compensation.
A vessel of Norwegian ownership sailed from Song Kong and arrivedat Colombo on September 25,1939. Two days later, by a notice in writing,
the Master and the local agents of the vessel were required ‘to unshipcertain goods mentioned in the said notice on the ground that such goodswere contraband of war. The agents complied with this request underprotestandat the sametimereserved aDV rights and claims arising
from the action of the detaining officer.
Thegoodsmentioned inthenotice have been subsequently condemned
and sold or released on bail.
It wasnow admitted bythe claimantsthat thegoodswerein enemy
ownershipwere contraband,destined foran enemy portandthat the
seizure was lawful.
In thepresent applicationthe ownersand theagentsofthe. vessel
claim(1) acertain sumonaccount of freight – for the said goods,
(2) othersums in respectof expensesincurred by theminunloading
the said goods and in respect of agency fees due to the agents inconnection with such unloading and detention.
Held, thatthe claimantswere entitled to freight from the port of
embarkation to Colombo but • that they were not entitled- to full freightfrom the port of embarkation to the port of destination, viz., Hamburg.
104
HOWARD C.J.—Wilhelmson v. The Attorney-General
Theclaim forfreight waa referred ’ for assessment ofcompensationto
the Registrar, who should be guided by the following rule:—■
Sucha sum istobe allowed for freight asis fair andreasonableinall
the circumstances,regardbeinghad to therateof freightoriginally
agreed (although this is not necessarily conclusive in all cases), to theextenttowhichthevoyage has been made, tothe labourand cost
expended, or anyspecialcharges incurred in respect of the cargo seized
beforeitsseizureandunlivery and to the benefitaccruing tothe cargo
from the carriageon thevoyageup to seizureandunlivery; butno sum
is tobe allowedinrespect of inconveniencesor delay attributabletothe
state of War ortothe consequent detentionand seizure.
Held, further, that the claim for agency fees could not be sustained.
Held-, also, that claims for expenses which amount to damages incurredthrough the putting intoforceof the OrderinCouncil couldnot be
. sustained.v
T
HIS was an application by the owners and agents of part cargoshipped ex m.v. “ Tarn ” for freight and landing charges.
N. K. Choksy (with him R. A. Kannangara instructed by Messrs. F. J.& G. de Saram, Proctors), for the owners and agents.
M.W. H. de Silva, K.C., A.-G. (with him M. F. S. Pulle, G.C.,instructed by John Wilson, Proctor), for the Crown.
Gut. adv. vult.
February 1, 1944. Howard C.J.—:
The vessel “ Tarn ” of Norwegian ownership, sailed from Hong Kongand arrived on September 25, 1939, at Colombo. On September 27, 1939,by a notice in writing the- Master and Messrs. Volkartf Brothers, thelocal agents of the vessel, were required to unship certain goods mentionedin the said notice on the ground that such goods were contraband of war.Volkart Bros, complied with this request under protest and at the sametime reserved any rights and claims arising from the action of the detainingofficer. The goods mentioned in the notice have subsequently beencondemned and either sold or released on ball. This application is madeby the owners and agents of the vessel who claim (1) a sum of Rs. 35,866.24on account of freight for the said goods, (2) a sum of Rs. 10,028.56 inrespect of expenses incurred by the owners and agents in unloading thesaid goods and in respect of agency fees due to the agents in connectionwith such unloading and detention. The details of this expenditure areset out in a statementmarkedBattached to the application ofthe
claimants. It isnotdenied bytheclaimants that the goods were in
enemy ownership, were contraband by virtue of Gazette Notice of Sept-ember 8, 1939, and destined for an enemy port or that the seizure wasfawful.
With regard to (1) the Attorney-General on behalf of the Crown con-cedes that the claimants are entitled to freight from the port of embarka-tion to Colombo.Mr.Choksy ontheother hand maintains that, asthe
vessel was at thetimeof seizurein neutral ownership the claimantsare
entitled to full freight from the ports of embarkation to Hamburg, the port
HOWARD G.J.—Wilheltnson v. The. Attorney-General
105
of destination. In support of the contention that there is a distinctionbetween British and neutral ships Mr. Choksy ha3 referred me to variousauthorities. In the case of The Juno1 it was contended by the claimantswho were the owners of a British vessel that because, as in the case ofneutral ships in former days, capture was said to be regarded as delivery,and full freight was given to neutral shipowners, so it should be given toBritish ship owners. With regard to this contention the President(Sir Samuel Evans) stated on pages 173-174 as follows: —
“ As to the second contention, a neutral vessel and a British vesselare not. in the like case or condition. Even before the Declaration ofParis a neutral vessel had the full right to carry enemy goods into anenemy country subject to the risk of her detention by a belligerent forthe purpose of seizing the goods, and this was the foundation of theprinciple which, generally speaking, secured to them their full freight.
It is needless to cite the many cases in which the doctrine was applied,or in which exceptions were made. But I will quote from two of thelatest cases in which Lord Stowell dealt with the matter, and laid downthe principle. In The Fortuna 2 ‘ The general principle has been statedvery correctly, that where a neutral vessel is brought in, on accountof the cargo, the ship is discharged with full freight, because no blameattaches to her; she is ready and able to proceed to the completionof the voyage, and is only stopped by the incapacity of the cargoAnd in The Prosper3 ‘ In this Court it is held, that where neutral andinnocent masters of vessels are brought into the ports of this country;cn account of their cargoes, and obliged to unliver them, they shallhave their freight, upon the principle that the non-execution of the. contract, arising from the incapacity of the cargo to proceed, oughtnot to operate to the disadvantage of the ship. This rule was intro-duced for the benefit of the shipowners, and to prevent the rights ofwar from pressing with too much severity upon neutral navigation ’.
Since the Declaration of Paris, and indeed before that, by the practiceadopted in the Crimean War, neutral vessels laden with enemy goodscould not be prevented from continuing then voyages and so earningtheir freight except where the goods were contraband, or where thepursuit of the voyage would amount to a breach of blockade; and inthese cases no freights would be allowed.
With British vessels it is quite otherwise. They must not carryenemj goods, nor proceed on voyages for which such goods wereshipped. In the present case there was accordingly an ‘ incapacity toproceed ’ attributable not only to the cargo, but also to the ship.”
It will be observed that in the ease of The Juno the goods condemnedwere not contraband, but merely enemy goods and that in the passage1 have cited from his judgment the President stated that ‘ ‘ neutralvessels laden with enemy goods could not be prevented from continuingtheir voyages and so earning their freight except where the goods iverecontraband ”. In the case of The Fortuna * the ship was seized but the;goods were not contraband. No question of freight in connection with
I (1916) P.D. 169.3 165 E.R. 1031.
* (1809) Edw. 56, 57 ; Z Eng. P.C. 17, 18.1 (1809) Edw. 72, 76 ; 2 Eng. P.C. 25, 26
106
HOWARD C.J.—Wilhelmaon v. The Attorney-General.
contraband cargo arose also in the cases of The Prosper1 and The BremenFlugge2 which were also cited by Mr. Choksy. In the case of The Katwijk*■a Dutch vessel was carrying iron ore from Bilbao in the North of Spaindestined, for Krupps works at "Essen under a Bill of Lading making thecargo deliverable at Rotterdam to the order of a Dutch firm, said to beagents of Krupps. On September 19, 1914, the vessel was stopped inthe English Channel and sent to Portsmouth for examination and thento Middlesb.orough where she was released after discharging her cargowhich, on October 4, had been siezed as prize. Iron ore was declaredcontraband on September 21, 1914. The President (Sir Samuel Evans)in Juis judgment held that he could see no reason for depriving the ownersof this neutral vessel of such freight as ought, in all the circumstances ofthe case, to be given to them. He also held that the amount of freightwould be decided upon reference to the Registrar and merchants, regardbeing had to all the circumstances, some of which he had pointed outin the case of The Juno {supra). It will be observed that the Presidentdid not hold that the owners were entitled to full freight. The followingpassage from the judgment of the President in The Corsican Prince *■with regard to the principle to be applied is also in point: —
* ‘ The Prize Courts have constantly dealt with claims for freight -and damages where- ships or cargoes have been captured or seized, notonly as between captors and owners, but also as between owners ofships and owners of cargo; and have adjudicated upon such claims -whether the ship or cargo had been released, and when both ship andcargo had been released; and, apparently, no actions involving thosequestions in similar cases were brought in any common law Court, andthis is obviously for grounds solid in justice and convenient in practice;because the two Courts administer two different codes or systems oflaw; the Prize Courts deal with claims in accordance with the law ofnations, and upon equitable principles freed from contracts, whichalmost always cease to have effect upon capture or seizure,, by reasonof the non-performance or non-completion of the contract of affreight-ment; whereas common law Courts would only determine the conse-quences of the strictly legal contractual obligations of the parties. TheKing’s Bench Courts would either give the claimants for freight thewhole or nothing according to whether the contract of affreightmenthad been performed- or not; but the Prize Court takes all the circum-stances into consideration, and may award, as it has done in decidedcases, the whole, or a moiety, of the freight, or a sum pro rata itinerisor it may discard the contract rate altogether, even as a basis for assess-ment or calculation (see The Twilling Riget s); or it may withhold ordiminish the sum by reason of misconduct, as e.g., by resistance tosearch, or spoliation, or non-disclosure of papers.”
The Prize Court is not, therefore, concerned with the contract ofaffreightment made between the parties.
Again in the case of The Stigstad6 Lord Sumner approved of the principlelaid down by the President in the case of The Juno (supra) that “ fair
1 165 E.R. 1038.
1 165 E.R. 546.
3 {1916) P.D. 177.
{1916) PJ>. at- p. 202.
{1804) 5 C. Rob. 82.
6 {1919) A.O. 279.
HOWAJRD C.J.—Wilhelmson e. The Attorney-General
0.07
freight must be paid to the claimants having regard to the work whichthey didIn his judgment Lord Sumner at page 290 stated that
“ presumably that sum took into account the actual course and durationof the voyage and • constituted a proper recompense alike for carryingand for discharging the cargo under the actual circumstances of thatserviceIn the case of The Heim1 and The Sorfareren2 the principle
laid down by the President in The Juno and approved by the PrivyCouncil in The Stigstad was followed. Both, The Heim, The Stigstad andThe Sorfareren were eases of neutral shipowners.
Having regard to the various decisions to which I have referred I holdthat the whole freight claimed by the claimants ought not to be allowed.What part should be allowed I refer to the Registrar who should in makinghis assessment be guided by the following rule :—-
Such a sum is to be allowed for freight as is fair and reasonable inall the circumstanoes, regard being had to the rate of freight originallyagreed (although this is not necessarily conclusive in all cases), to theextent to which the voyage has • been made, to the labour and costexpended, or any special charges incurred in respect of the cargoseized before its seizure and unlivery, and to the benefit accruingto the cargo from the carriage on the voyage up to the seizure andunlivery; but no sum is to be allowed in respect of any inconveniencesor delay attributable to the state of war or to the consequent detentionand seizure.
With regard to the claims made in statement “ B ”, Item (1) ” Customsover-hour dues ” is not pressed by Mr. Choksy. Item (6) ■“ Landinginto Warehouse German Cargo ” is conceded by the Attorney-Generalto be due to the claimants. Mr. Choksy has stated that item (5) refersto the charge paid for the hire of lighters to convey the goods from theship’s side to the wharf. In these circumstances this item is also concededby the Attorney-General. Item (2) ‘‘Discharging German Carjgo ”,item (3) “ Shifting and restowihg in hatch ” and item (4) ‘ ‘ Shifting intolighters and reloading ” all refer to expenses which have been incurred inseparating the contraband goods from the rest of the cargo and unloadingit at Colombo in accordance with the directions of the detaining authority.The question of the reimbursement of expenses that have been thrownupon the shipowner has been considered in some of the cases that I havealready cited in this judgment. In his judgment in .The Heim (supra) atpage 241 the President stated as follows: —
“ And if there have been thrown upon the shipowner expenses, forinstance, which would otherwise have been thrown upon the cargo• owner, they must be paid by the cargo owner when he gets his cargo,because he is getting relieved of expenses which he would otherwisehave had to pay. Any expenses which the shipowner has incurred,as it says in the passage I have read, ‘ for carrying and dischargingthe cargo under the actual circumstances of that" service ’ must be takeninto account in arriving at the proper recompense for carrying anddischarging it under those circumstances. To those I think he isclearly entitled.”
1 (1919) P.D.237.* British and Colonial Prize Cases, Vol. 1, p. 589
108
HOW Alt D C.J.—Wilhelmson v. The Attorney-General
In the case of The Stigstad {supra) the vessel was ordered to Leith andthen to Middlesborough for discharge. A claim was put forward forexpenses consequent upon this seizure and the discharge at Middles-borough afterwards. These expenses included special agency fees atMiddlesborough. With regard to the claim for such expenses LordSumner at pages 283-284 stated as follows: ■—
“ That part of the claim which relates to the ship’s being orderedto call at Leith and the claim for expenses incurred there are claimsfor damages for putting in force the above-named Order in Council,for it is not suggested that the Order to call at Leith, and thence toproceed to Middlesborough, was in itself an unreasonable way of exer-cising the powers given by the Order. The small claim for fees atMiddlesborough seems to relate to an outlay incident to the earning ofthe freight which has been paid, and was covered by it; but, if it isanything else, it also is a claim for damages of the same kind. ' Dam-ages ’ is the word used by the President in his judgment; and althoughit was avoided and deprecated in argument before their Lordships,there can be no doubt that it, and no other, is the right word to describethe nature of the claims under appeal.”
Again at page 290 His Lordship, before deciding that such a claimcannot be sustained, stated as follows: —
‘ ‘ The further claims are in the. nature of claims for damages forunlawful interference with the performance of the Ttotterdam charter-party. They can be maintained only by supposing that a wrong wasdone to the claimants, because they were prevented from performing it,for in their nature these claims assume that the shipowners are to beput in the same position as if they had completed the voyage under thatcontract, and are not merely to be remunerated on proper terms forthe performance of the voyage, which was in fact accomplished. Inother words, they are a claim for damages, as for wrong done by themere fact of putting in force the Order in Council.”
Claims to items (2), (3) and (4) in statement ” B ” amount to a claimfor damages incurred through the putting into force the Order in Council.declaring the goods that were seized and hence cannot be sustained.The same principle was also formulated in The Tredegar Hall1 the head-note of which is – as follows : —
‘ ‘ As indicated in the judgment in The Juno, British shipowners, inwar time, are not permitted to claim for any delay or inconvenienceincurred by reason of the diversion or detention of their vessel for thepurpose of seizure and making unlivery of confiscable enemy property.The loss (if any) to the shipowner results from the war and must besubmitted to, just as he is not entitled to bring into the estimation ofthe freight any alleged excess in the cost of discharging at the portat which the vessel actually delivered the cargo, and the cost at theport to which she was originally destined.”
Items (7), (10), (11) and (12) refer to out-of-pocket expenses incurred bythe agents and item (9) refers to agency fees. None of these expenses wouldbe incurred by the owner of the cargo if it had been discharged at the
r (1916) P.D. 217.
Loxley v. Attorney-General
109
port of destination. The items refer to expenses incurred as the resultof the war and cannot therefore be sustained. In The Stigstad (supra)Ijord Sumner has expressly held that agency fees cannot be recovered.
There remains only the question of costs. This question I reservepending the report of the Registrar on the amount due to the claimantsin respect of (a) freight and (b) items (5) and (6) in statement ** B ”.