Canada Maritime Ltd v Oerlikon Aerospace Inc. [1998] EWCA Civ 170 (06 February 1998)

Canada Maritime Ltd v Oerlikon Aerospace Inc. [1998] EWCA Civ 170 (06 February 1998)

MV and TF have a real prospect of success in a defence based on the Himalaya clause, supported by The Mahkutai, and the judge's exercise of discretion to set aside the judgments was not erroneous in principle; the appeal should be dismissed.

Citation
[1998] EWCA Civ 170
Parties
Plaintiff by Counterclaim/appellant: Oerlikon Aerospace Inc.; Plaintiff by Counterclaim/appellant: Her Majesty The Queen in Right of Canada; Second Defendant to Counterclaim/respondent: Maritima Valenciana S.A. (MV); Third Defendant to Counterclaim/respondent: Transportes Fuente S.L. (TF); Plaintiff/main Action/first Defendant to Counterclaim: Canada Maritime Limited
Jurisdiction
England and Wales
Judgment Date
06 February 1998
Procedural Posture
Appeal / Appeal From Order Setting Aside Summary and Default Judgments
Outcome
appeal dismissed
Legal Topics
Himalaya Clause, Privity of Contract, Summary Judgment, Default Judgment, Discretion to Set Aside Judgment
Commercial Law Shipping Law Himalaya Clause Privity of Contract Summary Judgment Default Judgment Discretion to Set Aside Judgment

Case Brief

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Parties

Oerlikon Aerospace Inc.

Plaintiff by Counterclaim/appellant

Her Majesty The Queen in Right of Canada

Plaintiff by Counterclaim/appellant

Maritima Valenciana S.A. (MV)

Second Defendant to Counterclaim/respondent

Transportes Fuente S.L. (TF)

Third Defendant to Counterclaim/respondent

Canada Maritime Limited

Plaintiff/main Action/first Defendant to Counterclaim

Procedural Posture

Appeal / Appeal From Order Setting Aside Summary and Default Judgments

Legal Issues

  1. 1 Whether MV and TF have a real prospect of success in a defence based on the Himalaya clause in the bill of lading
  2. 2 Whether the judge erred in principle in exercising discretion to set aside summary and default judgments
  3. 3 Whether the doctrine of privity of contract should be excepted for Himalaya clauses

Ratio Decidendi

MV and TF have a real prospect of success in a defence based on the Himalaya clause, supported by The Mahkutai, and the judge's exercise of discretion to set aside the judgments was not erroneous in principle; the appeal should be dismissed.

Court Disposition

appeal dismissed

Orders

  • appeal dismissed with costs
  • application for leave to appeal to the House of Lords refused