O/Y WASA STEAMSHIP COMPANY, LTD., AND N.V. STOOMSCHIP "HANNAH" v. NEWSPAPER PULP & WOOD EXPORT, LTD.
(1948) 82 Ll.L.Rep. 936
KING'S BENCH DIVISION.
Before Mr. Justice Morris.
Charter-party-Cancellation by charterers -Breach-Principal and agent-Undisclosed principal-Right of owners to sue-Disponent owners-Rectification- Frustration - War - Enemy taint - Illegality-Notice of readiness-Waiver -Charter-party dated April, 1940, entered into between H. (Dutch company), disponent owners of Finish ship, and defendant charterers (Swiss company) for carriage of peeled pulpwood from Canada to Rouen-Signed by M. & S. "under telephonic authority from and as agents for disponents"- Further provisions in charter-party:
3. The freight to be paid in cash without discount in London to Meldrum & Swinson Ltd. on telegraphic advice that bills of lading have been properly signed, non-returnable ship lost or not lost.
4. . . . restraints of princes, rulers, and people . . . always mutually excepted. . . .
6. Owners to give charterers or their agents and shippers ten days' notice of steamer's expected readiness at loading port.
8. The steamer to load as per Clause 1 and discharge in such dock, berth or place, always afloat, as may be ordered by charterers or their agents on receiving notice of arrival. Notice to be given in writing to charterers or their agents at port of loading when cargo will be required.
13. If the nation under whose flag the steamer sails shall be at war, whereby the free navigation of the steamer is endangered, or in case of blockade or prohibition of export from the loading port, this charter shall be null and void at the last outward port of delivery or at any subsequent period when the difficulty may arise, previous to cargo being shipped.
26. The loading time to count from the moment the ship starts loading but not later than 24 hours after the master has given written notice within the ordinary office hours that vessel is ready to load.
War Risks Clause: . . .
(2.) The ship shall have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or otherwise howsoever given by the Government of the nation under whose flag the vessel sails or any department thereof, or any person acting or purporting to act with the authority of such Government or of any department thereof, or by any committee or person having, under the terms of the war risks insurance on the ship, the right to give such orders or directions and if by reason of and in compliance with any such orders or directions anything is done or is not done, the same shall not be deemed a deviation, and delivery in accordance with such orders or directions shall be a fulfilment of the contract voyage and the freight shall be payable accordingly.
Pulpwood bought by charterers from B. & Sons (Canadian firm)-Sold to French company against open letter of credit to be opened with Swiss bank- B. & Sons to be paid by charterers by letter of credit to be opened with Canadian bank-Delay by French company in arranging letter of credit- Arrival of ship at Canadian loading port on May 14, 1940-Notice of readiness given by master on May 15- Ten days' notice of expected readiness not given-Whether waived-Loading not commenced by B. & Sons owing to delay by charterers in opening letter of credit with Canadian bank-Charter-party cancelled by charterers on May 22 "due aggravation general situation" (Germans having overrun France)- Impossibility of performance - Cancellation accepted by owners - Action for breach brought by W. Ltd. (Finnish owners of ship) and H. (disponent owners) - Right of W. Ltd. to sue-Admissibility of oral evidence to prove that W. Ltd. were principals - Meaning of "disponent owners"- -Right of plaintiffs to rectification- Whether W. Ltd. (in which H. held
O/Y Wasa S.S. Co., Ltd., and Another v. Newspaper Pulp & Wood Export, Ltd.
K.B.
937
controlling interest) tainted with enemy status when Holland occupied by Germans - Evidence that by Dutch decree of May, 1940, ownership of shares in and legal claims made by Dutch companies were vested in Dutch Government in London - Whether further performance of charter-party against public policy-Further defences of "restraint of princes, rulers, and people" and of frustration by supervening illegality
.