P & O Nedlloyd BV v Arab Metals Co & Anor, Court of Appeal - Civil Division, December 13, 2006, [2006] EWCA Civ 1717,[2007] 2 Lloyd's Rep 231
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P & O Nedlloyd BV v Arab Metals Co & Anor, Court of Appeal - Civil Division, December 13, 2006, [2006] EWCA Civ 1717,[2007] 2 Lloyd's Rep 231
Case No: A3/2006/2186
Neutral Citation Number: [2006] EWCA Civ 1717IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL ( CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION (COMMERCIAL COURT)Mr. Justice Tomlinson2004 Folio 190Royal Courts of JusticeStrand, London, WC2A 2LLWednesday 13th December 2006Before :LORD JUSTICE BUXTONLORD JUSTICE JONATHAN PARKERandLORD JUSTICE MOORE-BICK- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Mr. Simon Rainey Q.C. and Mr. Nicholas Craig (instructed by Richards Butler) for the appellantMr. Michael Davey (instructed by Ince & Co) for the third respondentThe first and second respondents did not appear and were not represented- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Moore-Bick : 1. Background1. This is an appeal by P&O Nedlloyd B.V. (``P&O'') against that part of an order made by Tomlinson J. on 5th October 2006 by which the judge refused its application for an order for specific performance by the third respondent, Ireland Alloys Ltd (``Ireland Alloys''), of a contract of carriage of two containers of scrap metal entered into in May 1998. 2. Although the history of this matter is extensive, the events which gave rise to the dispute can be summarised relatively briefly. On 1st May 1998 Ireland Alloys entered into a contract with the second respondent, Stena Trading AB, then called Stena Non-ferrous Metals AB, (``Stena'') for the purchase of a quantity of scrap metal c.i.f. Felixstowe. In order to enable it to perform that contract Stena entered into a contract on 7th May 1998 with the first respondent, Arab Metals Co (``Arab Metals''), for the purchase of a similar quantity of scrap metal on corresponding terms. The goods were shipped on board the vessel UB Tiger by Arab Metals at Alexandria the same day for carriage to Felixstowe in two containers under a bill of lading issued by P&O. The goods were discharged in Felixstowe just before the end of May and transferred to P&O's container depot at the port. The bill of lading, which had been indorsed by Stena in favour of Ireland Alloys on 18th May, was surrendered to P&O when the goods were discharged from the vessel.3. On 27th May 1998 forwarding agents by the name of Wm. Martin & Co (Marine) Limited (``Wm. Martin'') acting on behalf of Ireland Alloys sent a fax to P&O requesting delivery of the containers to Ireland Alloys' premises in Hamilton and as a result both containers were carried by road from Felixstowe to P&O's depot at Coatbridge. On 1st June the first of the two containers was taken to Ireland Alloys' premises, but a Geiger counter passed over it at the weighbridge just inside the entrance to the yard registered the presence of radioactive materials and as a result Ireland Alloys refused to accept delivery of either container. The container was taken back to the Coatbridge depot where it remained with its companion while investigations were undertaken.4. On 3rd June the containers and their contents were examined by the National Radiological Protection Board. The sacks of scrap metal, which included parts salvaged from pumps and other oilfield equipment, were found to contain various items whose surfaces were contaminated by radioactive material. Apparently this is a well-known phenomenon in the case of oilfield equipment and results from the concentration within the equipment of radioactive materials occurring naturally within the earth's crust. Although the level of radiation was low (an expert asked to advise the parties some years later described the level as lower than that to be found in some household smoke alarms), in a report issued on 12th June 1998 the surveyor from the National Radiological Protection Board classed the material as radioactive waste, thus bringing it within the scope...See the full content of this document
