Fukuyo Industries Corporation and Others v. The Owners of the Ship or Vessel "Griesheim" and Others

HCAJ000088/1978

Admiralty Action - Owner sued by shipper for damage to goods carried - Application for stay of H.K. proceedings on ground that owner was party to Bill of Lading and parties had agreed to litigate thereunder in Tokyo District Court - Proof of Foreign Law - Comments of Court upon the scope and presentation of evidence of foreign experts - Use of "telex opinions" criticized - Direction to Clerk of Court as to procedure in future interlocutory application in tae Admiralty jurisdiction - Examination of Japanese law - Acceptance of evidence of Japanese experts as to commonsense - Principle of construction as to which no specific authority cited - Court held that when Bill of Lading was construed in accordance with Japanese law owner was not a party thereto and dismissed application.

BETWEEN

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Coram: Hon. Power, J.

Date: 4 May 1983

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J U D G M E N T

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1. In this matter the plaintiffs are the owners of cargo that, at the end of March 1977, was shipped on board the 1st defendant's vessel "Griesheim", now renamed "Vivacity", for carriage from Japan to Europe. The owners of the vessel at that time were "Griesheim" Unterweser Reederei Beteiligungs Schiffahrt Sges. m.b.H. and  Co. K.G. (Griesheim & Co.). In January 1980 this company sold the vessel to the Neptune Navigation Company and in January 1981 Neptune Navigation Company sold the vessel to Seaborne Merchants Corporation. We are, however, in the present application, not really concerned with these changes of ownership. Griesheim & Co. chartered the vessel on the 25th November 1976 under a NYPE form to Trans Global Bulkers Ltd. which, in turn, sub-chartered the vessel to the 3rd defendant, Nakamura Steamship Co. Ltd. (Nakamura) on the 8th March 1977. This company, in turn, sub-chartered the vessel to Fukuyo Industries Corporation on a Baltime form on the 10th larch 1977.

2. The vessel was arrested in Hong Kong on the 18th June 1982. On the 8th July 1982 the 1st defendant took out a summons asking that the action be stayed on the grounds that -

This is the application presently before the court.

3. For convenience I intend to refer to the various exhibits which were annexed to affidavits by using the designation given them in the affidavit.

4. In this matter, and, indeed in many of the cases that come before this Court, a question of foreign law, i.e. the law of Japan, is involved. What is primarily in issue in these proceedings is whether the 1st defendant is as owner of the vessel a party to a bill of lading. It is common ground that the bill of lading is governed by Japanese law. Both parties sought to prove the applicable Japanese law by expert evidence. I feel it appropriate at this state, to make some general remarks as to the nature and presentation of such evidence.

5. Dicey & Morris in "The Conflict of Laws" 10th Edition, Volume 2 at 1206 state:-

"In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means."

6. I am, of course, concerned here with the nature and presentation of such expert evidence in interlocutory proceeding. Clearly the requirement that the foreign law be pleaded has no application in such proceedings as there are no pleadings. However that may be the requirement remains that the foreign law must be proved as a fact to the satisfaction of the judge.

7. In a number of interlocutory applications, including the present one, the opinions of the foreign experts, are placed before the Court in the form of telexes exhibited to affidavits filed by the solicitors for the parties.

8. It has been my experience, in this and other such applications, that telex opinions from non-English speaking lawyers are often far from satisfactory. They are frequently piecemeal being made up of sets of questions and answers with each set seeking to elucidate or expand something in the prior set. They are invariably couched in "telexese" and are often garbled and almost always condensed; as is customary in telex communications, sometimes to the point of incomprehensibility. These difficulties are, of course, magnified and compounded when the telex comes from a person who does not have complete mastery of English. All too frequently counsel, when referring to such evidence, are driven to say "Well, of course, what the writer really meant to say was .......".

9. It was suggested by counsel in the present application that, given the convenience and availability of telex communications, the acceptance of this kind of evidence has becoming increasingly common both here and in the United Kingdom. That suggestion is not given support by an examination of the reported cases. They seem to indicate that where serious questions of foreign law are raised the experts have filed proper affidavits and, indeed, have, in many cases, been cross-examined thereon.

10. Trial by telex is, in my experience, both slipshod and, in the majority of cases, unnecessary. Normally between the filing of the Notice of Motion and the date of hearing there is ample time for the parties to obtain proper affidavits from their experts sworn by them in their country of residence. 

11. In the present case the Notice of Motion was filed on 8th July 1982 and the hearing was set down for 18th October 1982, 3½ months later.

12. On 5th August 1982 the 1st defendant had filed the first affidavit by Mr. Andrew Peter Biggs. It was clear from this affidavit that Mr. Biggs had already sought the advice of a Mr. Hiroshi Kimura of the Tokyo law firm, Braun, Moriya, Hoashi and Kubota. There was, however, no opinion from Mr. Kimura annexed to the affidavit nor did it appear that Mr. Kimura had at that state, been consulted as to whether the 1st defendant was a party of the bill of lading.

13. The first affidavit from the plaintiff came from Mr. Paul William Budgen on 1st October 1982. To this affidavit was annexed "PWB-19" a telex opinion from Mr. Ikuya Fujii of the firm of Fujii & Toda which who stated, inter alia, that, in his mind, under Japanese law Nakamura was a party to the bill of lading and the owner, 1st defendant, was not. This issue was.. then squarely raised on the 1st October 1982 by that affidavit.

14. Mr. Biggs filed an affidavit in reply thereto on 15th October, 1982. He had again consulted Mr. Kimura and had obtained 2 telex opinions from him on 14th and 15th of October which were annexed to his affidavit as APB-8. In the first of these opinions Mr. Kimura said that the question as to whether a shipowner could be a part to a contract of carriage under a bill of lading had not received any judicial scrutiny in Japanese courts and was arguable. This was how the matter stood when it came on hearing on 18th October.

15. Neither party was ready to proceed on that date and the matter was adjourned for a further 4 months until 16th February 1983. On 24th January 1983 an affidavit was filed by Mr. David Hamilton Hall of the London Office of Clyde & Co. which was primarily concerned with the way in which the matter had been handled by that office. On 10th February, just 6 days before the resumed hearing, the plaintiffs filed an affidavit from Mr. Anthony Rooth to which was annexed a further telex opinion from Mr. Fujii.

16. The telex opinions given up to this point did not appear to have been mindful of the authorities discussed below, which deal with the nature and scope of the evidence from experts on foreign law. The opinions failed to set out the sources relied on and the reasoning upon which their conclusion was based was either not revealed, if revealed, was difficult to comprehend.

17. The hearing commenced on Wednesday 16th February. It quickly became apparent that the primary point in issue was whether the owner was a party to the bill of lading under Japanese law and that the dual opinions thereon were wholly inadequate. This was pointed out by the Court during the course of the hearing and attempts were then made, needless to say by the sending of further telexes, to remedy the position. Eventually on Friday 18th February, on the application of Mr. Ma, for the plaintiffs, the matter was adjourned to Monday 21st to allow both parties to file further affidavits. The application came from Mr. Ma but it was made in circumstances where the telex opinions from each side were equally inadequate and where the court had indicated  that, in this regard, it expected much more assistance from both parties, than it was being given. On the 21st February the plaintiff having during the adjourned period received 3 further telexed opinions, which had been given to the solicitors for the defendant, Mr. Ribeiro, for the defendant, asked for time to consider and reply thereto and the matter was then adjourned to 12th April to allow further affidavits to be filed.

18. Before the resumed hearing a further 6 affidavits had been filed each of which had annexed thereto further telexed opinions from Japanese lawyers. Such was the material which faced the Court when it came to consider the matter on 12th April 1983.

19. I consider it is time that a clear indication was given that, unless the circumstances be exceptional, when a party seeks to rely upon the evidence of an expert to prove foreign law that evidence should be embodied in an affidavit or affirmation sworn or affirmed by the expert himself.

20. It is my intention henceforth to direct the Clerk of Court whenever he is asked to fix dates for the hearing of interlocutory applications in the Admiralty jurisdiction to set the matter down for an initial hearing before this Court at which times will be fixed for the filing of affidavits and other appropriate directions given.

21. I turn now to make some general observations as to the contents of such affidavits. It is clear law that the contents must, if they are to be of any use, be capable of proving the foreign law as a fact to the satisfaction of the judge.

22. It should go without saying that an affidavit which is closely and logically reasoned and supported by authority is much more likely both to assist the Court and, indeed, in the outcome, to prevail.

23. The differing functions of the expert as regards, on the one hand, statutes and the general law and, on the other contracts must be  borne in mind when her affidavit is being framed. The expert can as I understand it, supporting his opinion by authority, tell the court what statutes mean and what the general law is. It seems that he should however as regards contracts, limit himself to evidence as to terms of art, as to the law applicable and as to rules of construction. (See Re Panama Plantations Ltd. ⁽¹⁾ at 218) and it is then for the Court, having been given this assistance to say what the contract means. (See Dicey & Morris in "The Conflict of Laws" at 1213, Rouyer Guillet & Cie. v. Rouyer Guillet & Co. Ltd. ⁽²⁾ .

24. It appears however, that the position in this regard is not fully settled. In Camille and Henry Dreyfus Foundation Inc. v. Inland  Revenue Commissioners ⁽³⁾ at 709 Jenkins L.J. said when dealing with the meaning to be given to words in a certificate of incorporation -

"In my view it is well within the competence of a witness as to the operation of a given instrument under foreign law to state the content of the relevant law and to add his opinion as to the effect attributable under that law to the instrument in question. No doubt his opinion might be challenged or displaced by the contrary opinion of some other competent witness. But that is a matter of weight, not admissibility, and the Special Commissioners having accepted the uncontradicted evidence of the witnesses of New York law in the present case, I can see no reason for disturbing their finding."

25. It must further be recognised -

(i) that the law in some systems, at which the Court may be required to  look, may not be susceptible of proof by reference to statute, learned writing or decided cases;

(ii) that the law may not, in part at least, have been subjected to codification but may simply be the law recognized and applied by the courts;

(iii) that there may be a paucity of   learned writing upon a particular topic;

(iv) that it may not be the practice to deliver full reasoned judgments from which guidance can be extracted.

26. There are matters which the Court will have to bear in mind when deciding whether the expert  has sufficiently set out his sources.

27. The affidavit should, when statutes are referred to, set out in full any sections of the statutes to which reference is made. If it deals with the general law of the country not embodied in statute it should, where possible, refer to and quote from the appropriate passages in authorities, be they learned writings or decided cases, which set out that law. If it relies upon learned writings or decided cases, it should, where possible, set out verbatim the specific passages relied upon. When any conclusion of the expert is relevant then the reasoning whereby he comes to that conclusion should be fully revealed.

28. The evidence of an expert which fails to conform with the above requirements runs the risk of rejection even if uncontradicted. Dicey & Morris, in "The Conflict of laws", say at 1211:-

"If the evidence of the expert witness as to the effect of the sources quoted by him is uncontradicted, the court is, in general, bound to accept it."

Implicit in this statement is the requirement that the expert should quote the sources and set out his reasoning as to the effect thereof.

29. Where the point in issue is strongly contested close adherence to the above requirements is even more important. Dicey & Morris, in "The Conflict of Laws", at 1212, state:-

"If the evidence of several expert witnesses conflicts as to the effect of foreign sources, the court is entitled, and indeed bound, to look at those sources in order itself to decide between the conflicting testimony."

30. It is correct that the courts will apply English law if there is insufficient evidence of foreign law, that is however certainly not the case where the evidence is simply conflicting. Halsbury "Laws of England" Volume 17 at 70 states:-

"If the experts' evidence is unsatisfactory or conflicting the court will itself examine the decisions of foreign courts, textbooks, codes and other documents in order to arrive at a satisfactory conclusion on the question."

31. The judge in Duke of Wellington, In re Glentanar & Wellington ⁽⁴⁾ faced such a difficulty which he described as follows (at 515):-

"As regards Mr. Valls and Dr. Colas, they were most satisfactory as witnesses, each made plain his conclusions, each made plain the reasons for his conclusions, the difficulty arises from the circumstances, first, that, as they both agreed, there is no express provision in the Spanish Civil Code, nor any express decision of the Supreme Court, on the question of the applicability of the doctrine of renvoi in Spanish law, and, secondly, that on this matter  they arrived at diametrically opposed conclusions. The task of an English judge, who is faced with the duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law as it would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard one; but it would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction ."

The court resolved the conflict by examining the sources.

32. The duty of the court, in all such cases, is clear - it must give effect to the intention of the parties, if it is at all possible, which was that their problem should be resolved by the application of foreign law. To regard English law as being the same as foreign, in circumstances where the foreign law has not been proved, is an artificial device which must not be resorted to lightly.

33. Having made these observations I now turn to conclude the issues.

34. Mr. Ribeiro, for the applicants, contended:-

In the outcome Mr. Ribeiro did not seek to rely upon this subsidiary contention. He said that he was not abandoning it, in case he should wish at some later stage rely upon it, but it was not urged for the consideration of this Court. I do not, therefore, have to deal with this point, however, I think it not inappropriate to remark that I formed the impression that there was considerable substance in the argument that the owner could not, under Japanese Law, be treated as an independent contractor and could not, therefore take advantage of clause 6 of the bill of lading.

35. Mr. Ribeiro did not contest that, if the Court was against him and found that his client was not entitled to the protection of the jurisdiction clause, clause 3 of the bill of lading, the considerations raised by the "Eleftheria" ⁽⁵⁾ had no application and did not seek to argue that he had established, in accordance with the principles laid down in MacShannon v. Rockware Glass Ltd. ⁽⁶⁾, that the plaintiffs were not entitled to pursue their action in Hong Kong.

36. I turn now to consider the evidence as to whether or not under Japanese Lava the owner was a party to the bill of lading.

37. The first affidavit filed on 5th August 1982 was made by Mr. Andrew Peter Biggs of Richards Butler. Mr. Biggs deposed that the "Griesheim" loaded the cargo in question which were consisted of hot rolled steel plates and sheets at Kisarazu (also known as Kimitsu) in March 1977 under 17 bills of lading on Nakamura forms. He said that the cargo was for carriage to Antwerp and Immingham and that the allegation of the plaintiffs was that upon arrival, it was found to have been rust damaged by wetting in the course of carriage. Mr. Biggs went on to state that the cargo insurers, Nippon Fire & Marine Insurance Co. Ltd., had paid out claims with respect to the cargo and had received from each a "Receipt of Indemnity" whereby the receiver renounced his rights concerning the claim in favour of the said insurance company.

38. The bill of lading (APB-1) was headed "Nakamura Steamship Co. Ltd. Bill of Lading". On its face was printed the following statement:-

"Shipped on board the Vessel, the Goods, or packages said to contain the cargo described below, in apparent good order and condition unless otherwise indicated herein, to be carried to the port of discharge or such port or place as selected by the Carrier under the terms  and conditions of this Bill of Ladings, with or without transhipment, as the Vessel and/or other connection conveyances may safely get, and to be delivered there in like order and condition unto order or assigns, subject to the terms, conditions and exceptions on the face and back hereof.

If required by the Carrier, this Bill of Lading duly endorsed must be surrendered in exchange for the Goods or delivery order.

In accepting this Bill of Lading the Merchant agrees to be bound by all the stipulations, exceptions, terms and conditions on the face and back hereof whether written, typed, stamped or printed. As fully as if signed by the Merchant, any local custom or privilege to the contrary notwithstanding and agrees that all agreements or freight engagements for and in connection with the carriage of the Goods are superseded by this Bill of Lading.

In witness whereof, the undersigned, on behalf of Nakamura Steamship Co., Ltd,, the master and the owner of the Vessel, has signed the number of Bill(s) of Lading stated above, all of this tenor and date, one of which being accomplished, the others to stand void.

The bill then provided a place for a description of the goods being shipped and the description was typed thereat. Thereunder appeared the typed words "All the terms, conditions, exceptions and clauses of the Charter Party between FUKUYO INDUSTRIES CORPORATION and NAKAMURA STEAMSHIP CO., LTD dated 10th March 1977 are fully incorporated herewith". Thereunder, appeared the printed words "Place and Date of B(s)/L issued", under which were typed the words "Tokyo, Japan, March 30th 1977". Thereunder there appeared the printed words "Nakamura Steamship Co. Ltd." under which was a signature and a chop bearing the words "Nakamura Steamship Co. Ltd.", "H. Hatsuoka, Chief, Business Department II". The clauses relevant to these proceedings on the back of the bill of lading are as follows -

39. Mr. Biggs made reference to clause 3, the Governing Law and Jurisdiction Clause, indicating that reliance would be placed thereon by the first defendant.

40. On the 1st October 1982, Mr. Bugden, of Clyde & Co., filed an affidavit in which he stated that he had obtained a legal opinion by telex (PWB-19) from a Mr. Ikuya Fujii of the firm of Fujii and Toda, stating that the 1st defendant was "unable to attain any contractual status under the bill of lading and was therefore unable to rely upon any of its clauses". Before going any further, I think it should be made clear that it was common ground that clause 4, the demise clause of the bill of lading, does not nave any application in the present circumstances as, under Japanese law, Nakamura stand in the position of a demise charterer. Mr. Fujii dealt with that and also looked generally at the question as to whether or not the ship owner was a party to the bill of lading. His observations in that regard was as follows -

"Position of Shipowner under Bills of Lading

1.     The Bill of Lading, produced as APB-1' in the affidavit, shows that it was signed by a representative of Nakamura Steamship Company Limited, and not for and on behalf of the Master of the Vessel. Nakamura Steamship Company Limited, according to Mr. 'Biggs' affidavit were the subcharterers of the Vessel at the material time, the owners then being (the Griesheim Co.)

2.     We have considered Clause 1(A) on the reverse of the said bill which defines the carrier for the purpose thereof.

'(A)      'Carrier' means the Nakamura Steamship Company Limited including the servants, agents and the master and the vessel and/or her owners.'

3.     As Clause 3 of the said bill of Lading states clearly that Japanese law would apply to it, the position under Japanese law is that since the Bill was issued by Nakamura Steamship Company Limited and signed on its behalf, the only person who would be the carrier, for the purposes of ascertaining liability in contract under the Bill, would be Nakamura Steamship Company Limited, and not the owners thereof. The owners are not contractual parties to this Bill of Lading under Japanese law.

4.     It is also to be noted that Clause 1(A) is rather unhappily worded in that there is contained the words 'and/or the owners' (our emphasis). We feel confident that a Court in Japan will hold that the owners in the present case do not have any contractual liability or benefits under the present bill. There are decisions which state that such clauses in Bills of Lading purporting to define the parties' legal rights thereunder, if against the general law, are invalid and hence the present clause 1(A) would be treated as meaningless. In our view this is the position.

41. Mr. Fujii seems to be stating two propositions of Japanese law. The first is that, a person signing a bill of lading will only bind other parties thereto where he, at the place of actual signing, indicated that he is signing on behalf of those other persons. In the present bill of lading, it is true that the chop surrounding the signature appended was that of the Nakamura Steamship Company Limited and no mention, at that part of the bill of lading ,was made of, the owner. Elsewhere on the face of the bill of lading, it did, however, state that it was signed on behalf of the owner. Mr. Fujii seems to be indicating that, in Japanese law, this is not sufficient to bind the owner. The second proposition of Japanese law which Mr. Fujii seems to put forward is that only a person who issues a bill of lading, such persons being the actual signatories or persons whose names appeared as authorizing parties at the place of signature, will be held to be carriers under the bill of lading. Mr. Fujii did not give any authorities for either proposition.

42. Mr. Biggs filed a further affidavit on the 15th October 1982 which contained, a telex opinion, (APB-18), from Mr. Kimura  of the firm of Braun, Moriya, Hoashi & Kubota. Mr. Kimura said that he had been asked to advise whether under Japanese law the ship-owner could be a party to the contract of carriage under the bills of lading. He stated that he considered that Nakamura Steamship would be a party to the contract and went on to say, "There is a printed provision on front side of bills of lading that the undersigned on behalf of Nakamura Steamship, the Master and the owners of the vessel has signed the bills of lading. I doubt the view that the above clause is completely meaningless. Unless existence of two different identities as carrier is prejudicial to shipper and bill of lading holder's interest, I cannot see why above clause has no effect. I do not think that existence of two carriers would be against their interest. In my understanding the above has not received any judicial scrutiny. I think that the above point is arguable and it would be open to owner to advance the above argument."

43. Mr. Kimura clearly  joins issue with Mr. Fujii. He appears to be stating that: -

Mr. Kimura says that this particular matter has not received any judicial scrutiny but he also sets out no law or sources as a basis for his general conclusions.

44. Mr. Anthony Rooth, also of Clyde & Co., on the 10th February 1983, filed an affidavit annexing a further telex opinion from Mr. Fujii (AR-1). Mr. Fujii states, inter alia, that:-

"(B) Second, nowhere in the contract does it clearly state that there are two carriers acting as principals. There are no words that 'Nakamura and the owners of the vessel jointly undertake the carriage of the goods and shall be jointly and severally liable for damage under Japanese C.O.G.S.A.' The Bill of Lading was issued by Nakamura whose name appears at the top and above the signature line at the bottom. The name of the owner of the vessel does not appear anywhere on the bill of Lading. Therefore, under the facts and under the strong presumption under the Japanese Law that the contract is with the person who issued the Bill of Lading, there is no question that Nakamura and Nakamura only is the carrier in this case."

45. Mr. Fujii seems to be returning to the two propositions he enunciated earlier, namely that the issuer of a bill of lading is the person whose name appears above the signature line and that in Japanese  Law only the  issuer of a bill of lading will be held to be a party thereto. He also appears to be indicating that he considers that there is significance, without saying why it should be so, in the fact that the name of the owner of the vessel does not appear anywhere in the bill of lading. This opinion does, however, for the first time mention "the Japanese COGSA".

46. Mr. Fujii finally observes, in this regard, that the bill of lading was a "contract of adhesion" which would, if vague in its terms, be construed against the ship-owner.   Implicit in this observation is, of course, the requirement that the terms be vague and be capable of the construction contended for. In the outcome it was not necessary for me to consider whether I should so construe the bill of lading.

47. This opinion of Mr. Fujii brought forth a further telexed opinion from Mr. Kimura which was annexed to the affidavit of Mr. Biggs filed on the 17th February 1983 (APB-12). In this opinion Mr. Kimura stated, again without giving any authority, that the law did not require any express, joint and several liability clause to render two parties jointly and severally responsible for carriage of goods". He went on to say that he doubted that the bill of lading was a "contract of adhesion" in the strict sense and pointed out, I think correctly, that even if it was, it would be of no real ssistance to the plaintiff's contention.

48. At this point neither Mr. Kimura nor Mr. Fujii had supported their contentions with any authority of any sort and neither had fully revealed the reasoning whereby they arrived at their conclusions.

49. The matter stood thus when it first came on for hearing. During the course of argument, a further telex opinion, (APB-14), was received from Mr. Kimura which was annexed to an affidavit of Mr. Biggs  filed on the 19th February, 1983. Mr. Kimura said that there was no presumption that a person who signed and issued a bill of lading became the only party thereto. He said that the determination as to who was the carrier, i.e. who was a party to the bill of lading was resolved by determining in what capacity the time charterer issued the bill of lading, whether for himself alone or both for himself and as agent for the owner. He submitted that whether the time charterer was acting as an agent should be primarily judged from the face of the bill of lading. Mr. Kimura here seems to have joined the issue in a positive way with the assertions of Mr. Fujii and to be denying that any such principles, such as Mr. Fujii contended for, exist in Japanese Law. He does not, it is true, deny that only the issuer will be bound, but says that there is no principle in Japanese Law that the only persons to be bound are those whose names appear at the place of signature.

50. Mr. Rooth filed a further affidavit of the 21th February 1983. This contained telexed opinions from Mr. Nishiyama of Logan Okamoto and Takashima (AR-8) and from Mr. Ninomiya of Yoshida and Partners (AR-9). It should perhaps be said at this point that there was no challenge by either side to the expertise of the experts on the other side. It seemed to be common ground that opinions had come from members of 5 of the leading admiralty law firms in Japan.

51. Mr. Nishiyama said that there were no precedents or published scholastic opinions on the points being raised. He said: "We tend to think that since Nakamura held itself out as the carrier under the COGSA and issued the bills of lading using its own form, however the bills of lading are worded, it is contradictory to think that Nakamura entered into the contract of carriage on behalf of the owner as carrier as well."

52. Mr. Nishiyama makes mention of the Japanese Carriage Of Goods By Sea Act. This statute is properly called the "Law Concerning International Carriage of Goods By Sea". I will refer to it hereafter as the Japanese COGSA". The relevant provisions for our purposes are as follows:-

"(Scope of Application)

53. Mr. Nishiyama said that "Nakamura held itself out as the carrier under the COGSA". It seems to me that he was here indicating that, in his view, Nakamura by complying with the requirement of Article 7(6) and giving its full name had held itself out as the sole carrier under the legislation. He appears to be saying that where a shipping company, which must be taken to be familiar with the provisions of the Japanese COGSA, inserts its name, and only its name, in a bill of lading such as we have in the present case, then it holds itself out as the sole carrier. Mr. Nishiyama seems to be saying that, when interpreting a contract under Japanese law, one looks to all of the circumstances under which the parties contracted, including representations made expressly or impliedly by a party and that such representations may be sufficient to override express words in the contract. Mr. Nishiyama does not give any authority for this view.

54. Mr. Nishiyama in a further telex, also part of AR-8, cited two opinions from learned writers, one from Professor Tanaka and one from Professor Ishii. I did not consider that either of the passages cited were of any real assistance as it did not seems to me that either Professor was referring himself to our specific problem. There appears to be no doubt, as the professors were contending, that in Japanese law a charterer alone is liable to perform contracts of carriage if he issues a bill of lading in his name. This does not seem to me to go towards our problem which is whether an owner is bound if a charter issues a bill of lading in his own name which purports, on its face, to bind the owner but does not name him.

55. Mr. Nishiyama, returning to his point that Nakamura had held itself out as a carrier, suggested that Article 2 of the Japanese COGSA had to be read disjunctively. He said that there was, in Japanese law, a "Rule for Construction of Documents" which "requires owner, lessee and charterer to be read separately with effect that only one of these parties can be carrier". This statement by Mr. Nishiyama seems to me to be of considerable importance. He contends that a rule of construction in Japanese law requires that "or", which is, prima facie, an alternative word, be given its ordinary disjunctive meaning. The rule contended for it appears to be that ordinary words should be given their ordinary meaning. Such a rule is so simple and straightforward as to be almost self evident. It is clearly in accordance with logic and commonsense that anyone contending that a word should be given some meaning other than its ordinary one must show good cause why such other meaning should be adopted. If correct to apply such a rule it seems clear that Japanese law does intend that one, and only one of the three named   types of persons should be the carrier.

56. The next opinion was that of Mr. Ninomiya seems to me to give considerable support to what was said by Mr. Nishiyama he says -

"Words on front of bill of lading that it signed for Nakamura, master and owners does not make clear which is 'carrier'. In Japan, we look to Article 2(2) of Japanese COGSA to find out who carrier is. Article 2(2) says carrier can mean owner, lessee or charterer of ship who undertakes carriage of goods. Lessee means bareboat charterer. We have to decide which one of these people is, 'carrier", since there should only be one carrier and that is party who makes contract of carriage with shipper, and issues bill of lading."

Mr. Ninomiya also appears to be saying that Article 2(2) requires that one or other of the named categories may be the carrier, i.e. that the clause must be read disjunctively, which is, of course, what was said by Mr. Nishiyama.

57. This affidavit also had annexed to it a telexed opinion (AR-10) from Mr. Hosoi of Hiratsuka & Partners. Mr. Hosoi confirmed that there were no legal cases in Japan dealing directly with this problem. He also referred to the works of Professor Tanaka but I do not consider for the reasons I have already given that this reference is of any real assistance. One of the approaches of Mr. Hosoi in reaching his conclusion that the owner was not a party was to rely upon Article 704 of the Japanese Commercial Code and Article 19(1) of Japanese COGSA. I did not find his reasoning based upon these two provisions convincing. He also referred to the "Sea Beauty" case which dealt with the effect of a demise clause but again I do not consider that this case was of much assistance as it does not appear to have involved any statement on the face of the bill of lading that it was being signed on behalf of the owners which is the situation faced by this Court. Mr. Hosoi also states that "there cannot be two carriers in a bill of lading governed by Japanese COGSA." Mr. Hosoi appears to be indicating, though not it must be conceded not with absolute clarity, that this is because of the wording of Article 2(2) of COGSA. He appears to be giving the same interpretation to that Article as that given it by Mr. Nishiyama and Mr. Ninomiya.

58. Mr. Biggs returned to Mr. Kimura for comment on these further opinions and he filed a further affidavit on the 3rd March 1983 annexed to which was a further telexed opinion from Mr. Kimura (APB-16). By this time, rather belatedly, the interpretation of Article 2(2) of the Japanese COGSA was squarely  in issue. Two of the Japanese lawyers had directly stated that Article 2(2) of the Japanese COGSA should be read, giving the word "or" its prima facie, disjunctive meaning, and indicating thereby that there could be only one party under Japanese law to a bill of lading. A third lawyer had appeared to have indicated, although not expressly stated, that he also took this view. Mr. Biggs sought elicit further information in this regard by asking the following question:-

"It appears to us that Article 2(2), only tells us that an owner, bareboat charter or charterer can be the carrier. It does not appear to support any view that only 1 carrier can exist in respect of any particular carriage. Do you agree?"

59. Mr. Kimura replied:-

"I agree with your argument. Article 2(2) of COGSA is intended to merely enumerate persons who can be carrier. It should not be construed that carrier can only be one or the other of those enumerated, to the exclusion of the others."

60. Mr. Kimura when agreeing with Mr. Biggs, simply states that Article 2(2) "should not be construed" as suggested by the other lawyers. He fails, even though he had been given the text of Mr. Nishiyama's opinion (AR-8), to grapple with the real question raised therein which is whether the Japanese "Rules for Construction of Documents" requires that Article 2(2) be read disjunctively. Mr. Biggs had framed his question so as to give the clearest possible indication of the answer he was seeking. As the answer involves the resolution of a matter of crucial importance I cannot help but feel that he was ill-advised so to do. The court was deprived not only of a spontaneous opinion as to the meaning of Article 2(2) but also an opinion as to whether or not a Rule of Construction, such as is contended for by the other lawyers, exists in Japanese law.

61. Mr. Kimura does go on to say:- "COGSA leaves identity of carrier undecided. What COGSA does is to merely name the persons who can be carrier." This is, of course, quite correct, but the issue is whether or not they are named disjunctively.

62. Mr. Kimura continues:- "Mere fact of issuing (is more correct to say signing) bill of lading could not be criterion to identify carrier. What is to be ascertained is on whose behalf bill of lading was issued. Determination of a party to contract under bill of lading does not depart from general rule of contract. Further, contract of carriage is in its nature not such contract as the law does not allow more than one party to be jointly severally bound thereby."

63. Mr. Kimura's argument in this regard, even if it be without flaw, is of no assistance if Article 2(2) of the Japanese COGSA must be interpreted as the other lawyers indicate.

64. In this further opinion Mr. Kimura deals with the quotation from Professor Tanaka and says that his comments that the charterer alone is the carrier should be viewed on the basis that the charterer issues the bill of lading on behalf of himself alone. As I have already indicated this seems to me to be a quite valid comment upon the passage cited.

65. Mr. Kimura deals with Article 704(2) of the Japanese Commercial Code and the argument put forward by the plaintiffs thereon. As I have already indicated I was not impressed by the argument of Mr. Hosoi in this regard and I intend to say no more than that I consider that there is considerable force in the observations of Mr. Kimura. Mr. Kimura also dealt with the Sea Beauty case and I accept his evidence that in that case there was no wording indicating that the bill of lading had been signed on behalf of the burners and that it would, therefore, have no application to the present matter. It was, anyway, it would appear, settled by the parties without any ruling thereon being made by the Court.

66. Mr. Kimura also dealt with the effect of non-compliance with Article 7(6) of the Japanese COGSA. The defendant was, of course, contending that, despite the wording of the Article 7(6), the omission of the name of the carrier from the bill of lading did not affect the contract of carriage and the parties thereto. He regard that the provision that the carrier's name must be stated in the bill of lading was to ensure that the carrier could be identified and that it was sufficient if the shipper was put in the position where he could, by demand, if necessary, obtain the identity of the carrier. He submitted that the provision did not 'exclude a person, whose name is not specified in the bill of lading, from being a carrier'.

67. On the 14th March 1983 Mr. Rooth filed a further affidavit annexing thereto further opinions from Mr. Ninomiya (AR-11), Mr. Hosoi (AR-12) and Mr. Nishiyama (AR-13).

68. Mr. Ninomiya returned once again to the question of the interpretation of Article 2(2) of the Janpanese COGSA. He said that there were no special Rules of Construction applying to that statute but that, in his opinion, "under the General Law", which I take it to mean the ordinary rules of construction, the words "owners, lessee or charterer" are to be read disjunctively. Mr. Rooth asked Mr. Ninomiya what was the effect, given the wording of Article 7(6) of the omission of the owner's name from the bill of lading. He answered by citing a work by Professor Ishii, "Maritime Commerce Law", published by Yuhikaku in 1969, in which, according to Mr. Ninomiya, the Professor states; at page 273, that particulars relating to the cargo to be carried, relating to identity of carrier and relating to the port where the cargo to be discharged are required as minimum entries to bill of lading. He also refers in this regard to a book by Professor Komachiya of Tohoku University, "Opinion on Unification of Bills of Lading", published in 1958. In this book the Professor said, at page 344:-

"In bill of lading, it is necessary to identify the cargo and which carrier takes delivery of cargo from the shippers at which place and at which port the cargo should be delivered by the carrier to the holder of the Bill of Lading. These particulars should be particularized in the Bill of Lading. If they are not, the Bill of Lading is invalid."

He also quotes a passage from a book by Professor Tanaka, Commentary on the Law Concerning Carriage of Goods by Sea published in 1964 in which he says at page 136:-

"If the Bill of Lading does not particularize the carriers name; the agent who signed the Bill of Lading for the carrier shall take full responsibility for performance of Bill of Lading contract under our law."

69. It appears, from the final opinion of Mr. Kimura, to which reference will be made later, that this quote is incomplete and should read:-

"If the Bill of lading does not state carrier's name and furthermore Bill of Lading does not state that Bill of lading was issued through agency then a person who signed bill of Lading should take responsibility for the Bill of lading contract."

I have outlined the words said to have been left out by Mr. Ninomiya.

70. In the circumstances I do not consider that which quotation is correct I am left in the position where I simply do not know any reliance should be allowed to be placed upon this quotation. However, Mr. Ninomiya is entitled to rely upon the other two learned works he cited. His conclusion was "therefore, Article 7(6) still requires owner's name/trade name to be entered on bill of lading even if it is signed by Nakamura as agent for the owner. If owner's name does not appear in such case, agent (Nakamura) is fully and solely responsible for the bill of lading contract. Party whose name is not specified on the bill of lading thereby is excluded from being carrier".

71. Mr. Nishiyama in his further opinion (AR-13) referred to further passages in the books by Professor Tanaka and Professor Ishii. He refers to Professor Tanaka at page 13E where he says:-

"The law requires the-name of the carrier or the trade name of the carrier to appear in the Bill of Lading so that it is clear on whose behalf the agent is signing the Bill of Lading. (This applies especially to the case of subcharter)".

He says that Professor Ishii states at page 273:-

"In order for the Bill of Lading to be valid it has to have descriptions in it of the goods to be carried, the carrier's name and the port where the goods are to be discharged."

72. He goes on to conclude, basing his conclusion upon these writings, that where a Bill of Lading "does not include carrier's name, it is invalid".

73. Mr. Aishiyama returns once again to Article 2(2) of the Japanese COGSA saying that that Article:-

"Resolves the question as to who can be the carrier and in view of the scholars' opinions mentioned ............ above, it should be clear that COGSA presupposes that when one of the persons enumerated in Article 2(2) of COGSA becomes carrier, the other enumerated persons will not be the carrier."

74. Finally Mr. Biggs filed a further affidavit on the 21st March 1983 to which he annexed a final opinion from Mr. Kimura (APB-18). Mr. Kimura first turned to the learned writers. He said (setting out, it would seem, in full the quote from Professor Ishii referred to by Mr. Nishiyama in AR-13) that Professor Ishii in "Maritime Commerce Law" said at page 273:-

"It is shared by majority of scholars that omission of some items as set out in Article 7 of COGSA does not render Bill of Lading invalid unless such omission does affect essence of Bill of Lading. Insofar as Bill of Lading can identify particulars of goods, carrier and port of delivery, such Bill of Lading is not invalid."

It seems to me that what Professor Isnii is here indicated is that if the carrier is not identified, then the Bill of Lading will be invalid. This is not the view Mr. Kimura takes of what Professor Ishii is saying. His suggestion is that what the Professor means is that, even if the carrier's name is not specified, as long as the bill of lading gives sufficient particulars to enable the shipper to identify the carrier", then the minimum requirement for its validity is satisfied. I do not find myself impressed by this argument. The Professor, when he wrote the passage quoted, expressly stated that he was dealing with Article 7 of the Japanese COGSA which states, in terms, that the bill of lading "shall have entry of the following (twelve) particulars' which include "the full name or trade name of the carrier". Mr. Kimura argues that what the Professor says, in the passage cited, is that whether or not the omission of any one particular makes the bill of lading invalid "should be judged from a point of view of whether such omission destroys the essence of the bill of lading". This is not but the Professor then goes on to indicate that "particulars of goods, carried and port of delivery" are essential.

75. Mr. Kimura makes a similar comment about the passage from page 344 of Professor Komachiya's book cited by Mr. Ninomiya in AR-11. He submits that the particulars referred to by Professor Komachiya are not meant to be particulars of the name of the carrier. He is again suggesting that it is enough to give sufficient information to allow the shipper to ascertain the identity of the carrier. Can Mr. Kimura be right when he puts forward this interpretation of what the Professor said? The Professor said that it is "necessary to identify which carrier takes delivery of the goods" and that particulars in this regard should be particularized in the bill of lading". It seems to me that when one says it is "necessary to identify" a person, one must mean that it is necessary to give details of his identity which, in these circumstances, must surely be the name or trade name of the person. I find myself unable to agree with Mr. Kimura that what the Professor was really saying was that all the bill of lading need is to give sufficient information so that the shipper can, by enquiry ,ascertain the identity of the carrier.

76. He goes on to set out a quote from another book by Professor Tanaka "Discussion on Maritime Commerce Law" published in 1970, for which the professor says, at page 388:-

"Since Article 7 of COGSA is intended to enumerate particulars which a shipper is entitled to demand to appear in a bill of lading, omission of some particulars does not render the bill of lading invalid insofar as essential particulars are entered therein. Only such bill of lading as is deemed not to be a bill of lading from a business sense is invalid."

77. Mr. Kimura goes on to say that "Omission of discharging port, identity of goods and their quantum is given by Professor Tanaka as, examples where the bill of lading would be nullified". He says that the Professor does not express that the omission of the carrier's name makes the bill of lading invalid. He suggests that this passage gives support to his contention that an unnamed carrier can be a party to a bill of lading. This is entirely not stated in the passage and I am far from convinced that the Professor's mind was turned to such  a question when he wrote it.

78. Mr. Ribeiro relied heavily on the approach suggested by the Professor Tanaka in this passage.

79. Mr. Kimura sets out Articles 99 and 100 from the, Japanese Civil Code.

Article 99 states:-

"A declaration of intention, made by a representative within the scope of his authority and disclosing the fact that he is acting for his principal, shall be effective directly against the principal.

2.    The provisions of the preceding paragraph shall apply mutatis mutandis to a declaration of intention made by a third person to a representative."

Article 100:-

"A declaration of intention made by a representative without disclosing that he is acting for his principal shall be deemed to have been made on his own behalf: However, the provisions of paragraph 1 of the preceding article shall apply  mutatis mutandis, if the other party was aware of, or should have been aware, that it was made on behalf of the principal."

Mr. Kimura finally concludes, relying upon these provisions as to the law of agency in the Japanese Code, that: "In the light of the above, insofar as it can be ascertained from the bill of lading that it was issued through agency and who is a principal, such principal shall be carrier".

80. It was common ground that the Court had to put itself in a position of a Japanese Court applying Japanese law. Mr. Ribeiro urged that the Court would, when it looked at the words on the face of the bill of lading and when it bore in mind Articles 99 and 100 of the Japanese Civil Code, come inescapably to a prima facie conclusion  that the owners were a part to the bill of lading. He then argued that it was for the plaintiffs to displace this prima facie conclusion.

81. With respect to Mr. Ribeiro, I do not consider that that is the approach which a Japanese Court would adopt. I am satisfied that a Japanese Court would do what the majority of the Japanese lawyers did i.e. examine this bill of lading in the light of the Japanese law which deals with such bills of lading i.e. the Japanese COGSA. The Court would, I am satisfied ask itself who, in accordance with law as set out in the Japanese COGSA, are the parties to this bill of lading. The first clause of importance to which the Court would turn its mind would be Article 2(2) of COGSA. I have considered the evidence of the Japanese experts that the ordinary rules of construction in Japan require that the word "or" when used in a statute be given it is ordinary disjunctive meaning. Might it be suggested that there was not sufficient authority cited to establish this rule of construction. When I bring my common sense to bear on that question and when I bear in mind the evidence, particularly that of Mr. Nishiyama and Mr. Hosoi, I am satisfied to accept that it is a principle of construction in Japanese law that words should be given their ordinary meaning. This is so eminently a proposition of commonsense, it is not surprising that it  should also be a proposition of law. It is true that in English law interpretation sometimes requires that words be not given their ordinary meaning and this may well be so in Japanese law. However, as I have already said, it is for the person suggesting that some other meaning be given to the word to establish that the law allows and requires that the word have such other meaning. There has been no evidence to indicate to me in the present case that Japanese law either allows or requires that the word "or" be read conjunctively. Indeed Mr. Kimura did not really address himself to this question. lie did not attempt when dealing with Article 2(2) to interpret it in accordance with the principles of interpretation recognised by the law of Japan.

82. Mr. Ma pointed out that the majority of the Japanese lawyers had formed the view that the owner was not a party to the bill of lading. while I am satisfied that it would be wrong to approach the matters on a "numbers" basis, as, indeed, Mr. Ma conceded, I do note that the conclusion at which I have arrived accords with the conclusions of all of the lawyers except Mr. Kimura. I am satisfied that under Japanese law the owner was not a party to the bill of lading and was not entitled to take advantage of Clause 3.

83. It is not material for me now to consider whether, if it was permissible under Japanese law to have 2 carriers, the omission of the name of a carrier in a bill of lading would, by virtue of Article 7, make the bill of lading invalid, at least against the unnamed carrier.

84. As I have already indicated the subsidiary contention of the defendant was not pressed in this Court. Further Mr. Ribeiro did not seek to argue that the defendant, not being entitled to be treated as a party to the bill of lading, had shown that the plaintiffs were not entitled to pursue their action in Hong Kong. The application must be dismissed. I will hear the parties as to costs.

(1)    (1946) 2 All E.R. 214.

(2)    (1949) 1 All E.R. 244.

(3)    (1954) 1 Ch. 672.

(4)    (1947) 1 Ch. 506.

(5)    (1969) 1 L.L. R. 237

(6)    (1978) A.C. 795.

Representation:

Mr. R. Ribeiro (Richards, Butler) for Applicant/lst Defendant.

Mr. G. Ma (Clyde & Co.) for Respondent/Plaintiff.