Wednesday Law Report: Where `obligation in question' performed

7 July 1999

RPS Prodotti Siderurgici SRL and others v Owners and/or Demise Charterers of the ship or vessel `Sea Maas'

Queen's Bench Division, Admiralty Court (Mr Justice Rix) 10 June 1999

WHERE A charterer claimed for damage to cargo and the fundamental complaint was that a seaworthy vessel had never been provided by the shipowner the place of performance of the "obligation in question" within the terms of art 5(1) of the Brussels Convention was the port of loading.

The court held that in a claim for damage to cargo the charterers had succeeded in establishing jurisdiction in England.

The plaintiffs, Italian consignees of a cargo of steel coils carried on a voyage from Newport in Wales to Anzio and La Spezia in Italy on the vessel Sea Maas, claimed against the defendants, Dutch owners or demise charterers of the vessel, in respect of alleged wetting damage to the cargo.

The owners contended that the plaintiffs could not bring themselves within article 7 of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships 1952 and therefore failed to sustain jurisdiction in England unless they could bring themselves within article 5(1) of the Brussels Convention. Article 5 provided that:

A person domiciled in a Contracting State may, in another Contracting State, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question . . . (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred . . .

The bills of lading, incorporated, inter alia, a General Paramount clause which incorporated the Hague-Visby Rules. On the front of the bills was the standard wording: "Shipped at the port of loading in apparent good order and condition on board the ocean vessel for carriage to the port of discharge or so near thereunto as she may safely get the goods specified above . . ."

The plaintiffs submitted that the principal "obligation in question" for the purposes of article 5(1) of the Convention was the obligation under article III, rule 1 of the Rules that: "The carrier shall be bound before and at the beginning of the voyage to exercise due diligence . . ." to make the ship seaworthy and the holds fit and safe for the cargo's reception, carriage and preservation and that that obligation had fallen to be performed at the port of loading, Newport, and that there was therefore jurisdiction in the courts of England and Wales.

The owners submitted that the obligation or principal obligation in question was the duty to deliver the goods carried under the bills of lading in the like good order and condition as when shipped and that the place of performance of that obligation was the discharge port, and that accordingly the plaintiffs had failed to establish jurisdiction in England.

David Bailey (Clyde & Co) for the plaintiffs; Timothy Hill (Bentley Stokes & Lowless) for the defendants.

Mr Justice Rix said that it was well established that the "obligation in question" had to reflect the contractual right on which the plaintiff's action was based. It was an error to characterise a damage to cargo claim under a bill of lading incorporating the Hague or Hague-Visby Rules as one based on an obligation to discharge goods in the same good order and condition as when loaded. To do that was to reflect the language of bailment, and the fundamental obligation under a Hague or Hague-Visby contract of carriage was not the obligation to keep and return (subject to proof that any loss or damage had occurred without fault) but the obligation to exercise due diligence.

It followed that everything would depend upon the nature of the claim of the holder of the bill of lading.

If the fundamental matter of complaint was that the shipowner had never provided a seaworthy vessel, the place of performance of the obligation in question would be at the port of loading. In the present case, the obligation in question was the obligation to exercise due diligence to provide a seaworthy ship at the commencement of the voyage and the plaintiffs were accordingly entitled on that ground to found jurisdiction in England.

Arts and Entertainment
TV
Arts and Entertainment
Tony breaks into Ian Garrett's yacht and makes a shocking discovery
TVReview: Revelations continue to make this drama a tough watch
Arts and Entertainment

books
Arts and Entertainment
The party's over: Paul Higgins and Stella Gonet in 'Hope' at the Royal Court

theatre
Arts and Entertainment
Brendan O'Carroll as Agnes Brown in the 2014 Mrs Brown's Boys Christmas special

Broadcaster unveils Christmas schedule

TV
PROMOTED VIDEO
Arts and Entertainment
Look out: Broad shoulders take Idris Elba’s DCI John Luther a long way
tvIdris Elba will appear in two special episodes for the BBC next year
Arts and Entertainment
Taylor Swift is dominating album and singles charts worldwide

music
Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
Arts and Entertainment
Kieron Richardson plays gay character Ste Hay in Channel 4 soap Hollyoaks

tv
Arts and Entertainment
Midge Ure and Sir Bob Geldof outside the Notting Hill recording studios for Band Aid 30

music
Arts and Entertainment
Jake Quickenden and Edwina Currie are joining the I'm A Celebrity...Get Me Out Of Here! camp
tvThe two new contestants will join the 'I'm A Celebrity' camp after Gemma Collins' surprise exit
News
The late Jimmy Ruffin, pictured in 1974
people
News
Northern Uproar, pictured in 1996
people

Jeff Fletcher found fame in 1990s

Arts and Entertainment
A scene from the new Paddington bear review

Review: Paddingtonfilm
Arts and Entertainment
Tony stares at the 'Daddy Big Ears' drawing his abducted son Oliver drew for him in The Missing
tvReview: But we're no closer to the truth in 'The Missing'
Arts and Entertainment
Henry Marsh said he was rather 'pleased' at the nomination
booksHenry Marsh's 'Do No Harm' takes doctors off their pedestal
Arts and Entertainment
All in a day's work: the players in the forthcoming 'Posh People: Inside Tatler'

tv
Arts and Entertainment
Eddie Redmayne plays Stephen Hawking in new biopic The Imitation Game

'At times I thought he was me'

film
Arts and Entertainment

books
Arts and Entertainment
One Direction go Fourth: The boys pose on the cover of their new album Four

Review: One Direction, Four

music
Arts and Entertainment
'Game of Thrones' writer George RR Martin

Review: The World of Ice and Fire

books
Arts and Entertainment
Sean Bean will play 'extraordinary hero' Inspector John Marlott in The Frankenstein Chronicles
tvHow long before he gets killed off?
Arts and Entertainment
Some like it hot: Blaise Bellville

music
Arts and Entertainment
A costume worn by model Kate Moss for the 2013 photograph

art
Arts and Entertainment

music
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Homeless Veterans Christmas Appeal: Drifting and forgotten - turning lives around for ex-soldiers

    Homeless Veterans Christmas Appeal: Turning lives around for ex-soldiers

    Our partner charities help veterans on the brink – and get them back on their feet
    Putin’s far-right ambition: Think-tank reveals how Russian President is wooing – and funding – populist parties across Europe to gain influence in the EU

    Putin’s far-right ambition

    Think-tank reveals how Russian President is wooing – and funding – populist parties across Europe to gain influence in the EU
    Tove Jansson's Moominland: What was the inspiration for Finland's most famous family?

    Escape to Moominland

    What was the inspiration for Finland's most famous family?
    Nightclubbing with Richard Young: The story behind his latest book of celebrity photographs

    24-Hour party person

    Photographer Richard Young has been snapping celebrities at play for 40 years. As his latest book is released, he reveals that it wasn’t all fun and games
    Michelle Obama's school dinners: America’s children have a message for the First Lady

    A taste for rebellion

    US children have started an online protest against Michelle Obama’s drive for healthy school meals by posting photos of their lunches
    Colouring books for adults: How the French are going crazy for Crayolas

    Colouring books for adults

    How the French are going crazy for Crayolas
    Jack Thorne's play 'Hope': What would you do as a local politician faced with an impossible choice of cuts?

    What would you do as a local politician faced with an impossible choice of cuts?

    Playwright Jack Thorne's latest work 'Hope' poses the question to audiences
    Ed Harcourt on Romeo Beckham and life as a court composer at Burberry

    Call me Ed Mozart

    Paloma Faith, Lana del Ray... Romeo Beckham. Ed Harcourt has proved that he can write for them all. But it took a personal crisis to turn him from indie star to writer-for-hire
    10 best stocking fillers for foodies

    Festive treats: 10 best stocking fillers for foodies

    From boozy milk to wasabi, give the food-lover in your life some extra-special, unusual treats to wake up to on Christmas morning
    Phil Hughes head injury: He had one weakness – it has come back to haunt him

    Phil Hughes had one weakness – it has come back to haunt him

    Prolific opener had world at his feet until Harmison and Flintoff bounced him
    'I have an age of attraction that starts as low as four': How do you deal with a paedophile who has never committed a crime?

    'I am a paedophile'

    Is our approach to sex offenders helping to create more victims?
    How bad do you have to be to lose a Home Office contract?

    How bad do you have to be to lose a Home Office contract?

    Serco given Yarl’s Wood immigration contract despite ‘vast failings’
    Green Party on the march in Bristol: From a lost deposit to victory

    From a lost deposit to victory

    Green Party on the march in Bristol
    Putting the grot right into Santa's grotto

    Winter blunderlands

    Putting the grot into grotto
    'It just came to us, why not do it naked?' London's first nude free runner captured in breathtaking images across capital

    'It just came to us, why not do it naked?'

    London's first nude free runner captured in breathtaking images across capital