64. Fetim B.V. and others v Oceanspeed Shipping Ltd (The “Flecha”) [1999] 1 Lloyd’s Rep 612

Liner bills held to be owners’ bills – leave to sue outside jurisdiction

The facts

Timber was shipped from the Far East to Europe under bills of lading containing an identity of carrier clause and a demise clause. These clauses stated that, despite the bills being signed by the liner company, only the owners or demise charterers of the vessel would be liable on the bills.

On outturn, the timber was found damaged by wetting from the sea.

The bills were liner bills and signed by the line/time charterers as carrier.

Leave was granted to serve process on defendant owners outside of the court’s jurisdiction. Application was made to set aside the granting of such leave.

Findings

The Admiralty Court (Moore-Bick J) found that the cargo owners (indorsees on the bills of lading) had made out a good and arguable case for the liability of the owners on the bills of lading, so as to justify an order granting leave to issue a writ outside the court’s jurisdiction.

Relying mainly on the Berkshire, the court found that in construing the bills as a whole and in context, the description of the charterers as “carrier” was not sufficient to displace the clear intention of the parties in the “identity of carrier” and demise clauses that the owners were the party liable on the bills.

Commentary

This was an interlocutory case and the findings therefore provisional. The findings do, however, lend support to the criticism of the Starsin above.

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