Dairy Containers v. Tasman Orient Line (PC)
Dairy Containers Ltd v Tasman Orient Line CV (The "Tasman
DMC Category Rating: Confirmed
This note is based on a note prepared by Tom Broadmore, counsel for Tasman Orient Line in the case.
The consignment was carried under a bill of lading which
contained the following relevant provisions:
The case was governed by New Zealand law. It was common ground that there was no international convention or national law mandatorily applicable to the bill of lading.
The relevant provisions of the Hague Rules were
Article III Rule
8, which reads:
Article IV, Rule 5, which reads:
and Article IX which reads:
The question for the court was whether the wording of Clause 6(B)(b)(i) in the bill of lading entitled Tasman Orient to limit its liability to 55 times £100 sterling in legal tender of the United Kingdom or whether the package limitation was 55 times that arising out of Articles IV Rule 5 and IX of the Hague Rules as judicially construed.
After analysing the judgments in the case of The "Rosa S"  2 LLR 574 and in Brown Boveri (Australia) v. Baltic Shipping Co  93 ALR 171, Williams J. held that the result of these two Articles was ‘that the package limit is effectively £100 sterling gold value, that is to say, the quantity of gold which was the equivalent of £100 sterling or the gold content of that amount when the Hague Rules were adopted in 1924.’ The judge quoted with approval from the judgment of the court of appeal in the Brown Boveri case to the effect that "the first sentence of Article IX was inserted to achieve stability and to avoid the effect of erosion of sterling’s value by inflation so that the limit of liability of £100 sterling was added to by a qualification that the amount of the sterling was not simply to be £100 sterling; it was to be the value of the gold which £100 sterling would then buy."
In the present case, the parties had by contract incorporated the Hague Rules into the bill subject to the limitation of liability under Clause 6(B)(b)(i) to "£100 sterling lawful money of the United Kingdom per package or unit." However, in the judge’s view, the effect of Clause 8(2) of the Bill of Lading was to nullify the package limitation in Clause 6(B)(b)(i) to the extent that it was in conflict with the Hague Rules – in other words, he held that the Hague Rules had to be given contractual primacy over the terms of the bill of lading. Further, the Hague Rules being incorporated in their entirety into the bill, the clause paramount in Article III Rule 8 confirmed that to be the result. It followed that if there were any inconsistency between the phrase "£100 sterling lawful money of the United Kingdom per package or unit" in Clause 6(B)(b)(i) and the phrase "£100 per package or unit or the equivalent sum in other currency" in Article IV Rule 5, the latter supervened and the former was nullified.
In the court’s view, the effect of including the words "sterling lawful money of the United Kingdom" in Clause 6(B)(b)(i) was merely to clarify the currency of the liability limitation, to avoid the possibility of confusion with other national currencies denominated in pounds.
A further reason for the judge reaching the view he did was the inherent unlikelihood of the parties agreeing that recovery should be limited to a sum set 77 years earlier. That unlikelihood was demonstrated by comparing the possible results in this case, £5500 against NZ$613,667. The judge concluded that it was "highly improbable in a business transaction involving the importation of valuable goods by sea that the importer…….would have agreed to run the risk of being able to recover only a few per cent of the value of its loss in the event of damage."
The court emphasised that it was not dealing with mandatory national legislation; it was concerned only with the interpretation of the agreement that the parties had made. A careful analysis of clause 6(B)(b)(i) of the bill of lading showed that the words "the limitation of liability under the Hague Rules shall be deemed to be £100 Sterling, lawful money of the United Kingdom per package or unit" were clearly intended to replace the limit that would otherwise have applied under Articles IV.5 and IX of the Hague Rules by a new limit written in terms of national currency only. The final words of the clause – "and the Hague Rules shall be construed accordingly" had to be read as requiring that the relevant parts of the Hague Rules be read as being amended by the new ‘deemed’ parts. The end result was that the carrier’s liability was limited to £100 sterling, lawful money of the United Kingdom per package or unit, that is, to a total in this case of £5,500.
Article 3.8 of the Hague Rules would operate as a paramountcy clause when the Rules applied compulsorily as a matter of statute, but that was not the case here, where the court was concerned simply with the interpretation of a contract. In that context, the more general provisions of Art.3.8 have to give way to the express limitation stated by the parties in clause 6(B)(b)(i) of the bill of lading. The more specific provision has to be preferred "as a matter of the common sense reading of the bill of lading as a whole. The parties’ plain purpose was to alter that aspect of the Hague Rules. That purpose must be given effect to."
Similar points could be raised in answer to the arguments based on clause 8(2) of the bill of lading but, in the court’s view, that clause could apply only ‘to the extent’ that the Hague Rules were applicable by virtue of clause 6. That extent was determined in relevant part by clause 6(B)(b)(i). The extent of the Hague Rules as so applied, did not include the original limitation provisions of Art.IV.5 and IX. As a result, there could be no repugnancy between the bill of lading and those provisions. It would make no sense, the court held, to direct a modification in those Articles and then immediately to make it null and void.
Contrary to the judge at first instance, the court did not view the reference to ‘lawful money of the United Kingdom’ as simply defining the currency in which payment should be made. "No reason," the court said, "can be given for such a strained reading."
Judgment of the Privy Council
The Privy Council adopted the principles of construction of negotiable documents such as bills of lading articulated by Lord Hoffman and Lord Hobhouse of Woodborough in The "Starsin"  UKHL 12,  2 WLR 711:
Relying on John Richardson’s text "The Hague and Hague Visby Rules" (4th edn., 1998), at page 43, Dairy Containers submitted that the carrier should have expressly adopted Articles I to VIII only of the Hague Rules thereby avoiding the "Gold Clause Trap" implicit in Article IX. The failure to exclude Article IX expressly when incorporating the Hague Rules was therefore fatal.
The Privy Council rejected this submission. It pointed out that Mr Richardson’s drafting formula was not the only one capable of achieving the result sought by the carrier: the question was whether the language actually used was also effective. On that fundamental issue, the Privy Council held that there was "no lack of clarity" in clause 6(B)(b)(i).
An incidental issue arose as to whether the carriage was port to port or combined transport – an aspect which was unclear because of the way in which the bill of lading had been completed. However, the Privy Council considered that that affected only the "textual route" by which clause 6(B)(b)(i), and the final outcome, was reached.
Dairy Containers drew attention to differing limitation figures in clause 6: US$2.50 in the case of combined transport where the stage of transport where the loss or damage occurred was not known; and ₤100 sterling where the loss or damage was known to have occurred at sea. Dairy Containers argued that this difference was illogical and indicated a lack of clarity in clause 6(B)(b)(i) sufficient for the court to conclude that the limitation figure of ₤100 sterling should be rejected.
The Privy Council did not agree. There might have been some force in the submission if it could be assumed that the bill of lading "had been drafted by a single hand and expressed a coherent intention". But that was an unsafe assumption: "A single draftsman expressing a single coherent intention would have been unlikely to provide one limitation in US dollars per kilo and another in British pounds per package or unit."
The Privy Council agreed with the Court of Appeal that Dairy Containers’ arguments based on Article III rule 8 of the Hague Rules and clause 8(2) of the bill of lading could not succeed, essentially for the reasons identified above in discussing the Court of Appeal judgment. It similarly agreed that clause 6(B)(b)(i) could not be interpreted as simply making it plain that the reference in Article IX was to British pounds and not other pounds (such as Irish or Kenyan pounds, as suggested by the judge at first instance): the authoritative French text of the Hague Rules referred to "livres sterling".
In the event, therefore, the carrier was able to limit its liability to ₤5,500.
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