§ '.—(1) Where proceedings arising out of the Code are brought against a member of a conference in respect of damage or loss suffered by any person and other members of the conference are also liable (whether jointly or otherwise) in respect of the same damage or loss, the liability of that member to make good that damage or loss shall be in proportion to his responsibility.
§ The reference above to the liability of other members of the conference is to any such liability which has been or could be established in proceedings brought before the same court or other tribunal by or on behalf of the person suffering the damage or loss; and for the purposes of this subsection it is immaterial by reference to what law the issue of liability was, or would be determined.
§ (2)In ascertaining the responsibility of a member of a conference for the purposes of subsection (1), regard shall be had not only to the member's part (if any) in the particular matters giving rise to the proceedings but also to his general involvement in the affairs of the conference as shown, for example, by his share of the conference trade, the nature of pooling arrangements to which he is a party and the extent to which he contributes to the administrative expenses of the conference.
§ (3)Subsections (1) and (2) apply to any proceedings in the United Kingdom and to proceedings elswhere in which the extent of the liability of a member of a conference falls to be determined by reference to the law of a part of the United Kingdom.
§ (4)Where in proceedings arising out of the Code—
- (a) judgment is given against a member of a conference in respect of damage or loss caused to any person, and
- (b) the extent of the member's liability is not determined by reference to subsections (1) and (2),
§ (5)A member of an unincorporated conference against which judgment is given, whether in the United Kingdom or elsewhere, in proceedings arising out of the Code in respect of damage or loss caused by any person by a breach of duty by the conference, shall not, by virtue of section 5(3), be liable to make good any greater proportion of that damage or loss than he would have been if the proceedings had been brought against him and the other members of the conference in respect of a duty owed by all the members of the conference and the extent of his liability had been determined by reference to subsections (1) and (2).
§ (6) subsections (4) and (5) shall not affect the ecforcement in the United Kingdom of a judgment required to be enforced 530 thereby by virtue of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (judgments given in countries with whom reciprocal arrangements exist) or Part I of the Civil Jurisdiction and Judgments Act 1982 (judgments given in other E. E.0 . member states).'.—[Mr. Sproat.]
§ Brought up, and read the First time.9.34 am
§ The Under-Secretary of State for Trade (Mr. Ian Sproat)
I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
With this, it will be convenient to take Government amendments Nos. 3, 4, 5, 6, 7, and 9.
§ Mr. Sproat
The new clause will replace clause 9 as a result of concern expressed to us especially by the General Council of British Shipping that clause 9 as drafted protected shipping lines only in limited cases. The purpose of clause 9 was to ensure that British shipping lines or other shipping lines with substantial assets here were not unduly prejudiced by the efficiency of the British legal system. Where a person—I am speaking of shipping lines rather than of shippers of goods—suffers damage as a result of a failure by the conference to fulfil its code obligations, for example, to admit that person into the conference it might be easy to sue the conference in the United Kingdom and by virtue of clause 5 enforce that obligation against a shipping line here. While a shipping line would have a right of recourse against fellow conference members, such a right may not be very useful in, say, Ruritania, if the currency of that country cannot be changed into sterling.
Clause 9 limited the member's responsiblity here to a "just and equitable" share. However, clause 9 dealt only with enforcement against members of judgments given against conferences. What if the original proceedings and judgment were against an individual member or members? Clause 3(7) would have enabled us to make similar provisions in regulations protecting members. Accordingly, sub section (1) provides that, in any case where proceedings arising out of the code are brought against a member of a conference and other members could also be sued for the same liability, liability of the member shall be only in proportion to his responsibility Subsection (2) repeats clause 9(2) in explaining how a member's responsibility is to be worked out. Subsection (3) explains that subsections (1) and (2) apply not only to proceedings in the United Kingdom but elsewhere if United Kingdom law applies, for example, because that is the law being applied to a case before international mandatory conciliation.
Subsection (4) deals with judgments given against members where the law of some other State applies. That is usually because a case is before a foreign court in the same way as subsection (1) deals with judgments given in the United Kingdom. Subsection (5) repeats clause 9(1)(a) that deals with enforcement against members of judgments against unincorporated conferences. Subsection (6) provides a saving for the cases where, as a result of our international obligations, we are required to enforce without qualification judgments given abroad.
The other amendments grouped with the new clause are consequential to it . Amendment No.3 brings the wording of clause 5(2) into line with the wording of subsection (3) of the new clause and makes it clear that the provisions of 531 clause 5(1) apply not merely in cases before courts of the United Kingdom but also where United Kingdom law is applied, for example, again, in international mandatory conciliation. Amendment No. 4 replaces reference to clause 9 by reference to the new clause. Amendment No. 5 deletes clause 5(5) dealing with the definition of the judgment which now appears in clause 13. The definition now includes a reference to the word "decree" for the purposes of Scottish law. Amendment No. 6 also adds the word "decree" after "judgment" in clause 8 since there the word "judgment" is not used in relation to proceedings arising out of the code.
I hope that my explanation and clarification, which I think met the wishes of hon. Members in Committee, will satisfy the House.
§ Mr. Terence Higgins (Worthing)
I recall that when I had closer connections with the shipping industry it used to be the practice for the captain of a vessel, if he had been through a bad storm, to go to a notary and register a protest when he had arrived in port, as a result of which he was exonerated to some extent from any damage that was caused to the cargo because of the bad weather.
I should like to register a protest about the new clause. As we are on Report, it is possible, unlike a Committee stage, for hon. Members to speak only once, except possibly with the permission of the House. To put down this large and complex new clause with the related amendments at this stage, when the preparation of the Bill has been going on for six or seven years, is unsatisfactory. The weather is so bad from a procedural point of view that it is not conceivable for hon. Members to examine every detail of the new clause. Therefore, I shall refer only to one or two points to which my hon. Friend the Minister might like to reply.
My hon. referred to the mandatory conciliation procedures. My recollection of our earlier debate is that there are not to be any mandatory conciliation procedures. Perhaps my hon. Friend will tell us whether that is so.
New clause 1(1) provides:Where proceedings arising out of the Code are brought against a member of a conference in respect of damage or loss suffered by any person and other members of the conference are also liable (whether jointly or otherwise) in respect of the same damage or loss, the liability of that member to make good that damage or loss shall be in proportion to his responsibility.If the members of the conference are not liable jointly, I presume that they are liable severally. If that is so, I do not understand why the new clause does not say so. If the members are liable jointly and severally, I do not see why the subsequent parts of the new clause split responsibility up on the basis that my hon. Friend the Minister optimistically mentioned. He said that in subsection (2) we are told how to work out in what proportion the members are responsible. In subsection (2), there is a series of generalities, with no indication as to what weight is to be given in general or in particular. It is not true to say that one can work out from subsection (2) the extent to which any individual member is liable. If that is so, it seems to undermine the purpose of the new clause.
Effectively, the conferences are not to be bodies corporate. That is why there are the provisions for them to be individually liable or proportionately liable. In the light of the new clause, we are giving the members all the advantages of a body corporate in respect of claims against 532 them in the context that the Minister mentioned, without having any of the responsibilities that such a body would have. That is a worrying development.
As I have said, it is virtually impossible on Report to deal with such matters in detail, as should be done. I hope that those in another place will seek to probe that aspect of the Bill a little more. Generally speaking, My hon. Friend's officials have not done a good job. I hope that my hon. Friend will give them a rocket.
Mr. David Ginsberg (Dewsbury)
I endorse what the right hon. Member for Worthing (Mr. Higgins) has said about the text of the new clause. It is weighty and complex. I also feel that procedurally what has happened should give the House and Ministers some cause to reflect.
This matter has been with the Department for six or seven years. It could and should have been anticipated. The Committee spent much time smoking out a lot of information from the Government, which should properly have been before the Committee and the House much earlier.
It is impossible this morning to decide whether the wording of the new clause is satisfactory. I accept what the Minister said, that the reasons for tabling it were proper. Therefore, I am prepared to accept it.
§ Mr. Sproat
I apologise to the House, and particularly to my right hon. Friend the Member for Worthing (Mr. Higgins). I agree that what I am asking the House to do this morning is not the best way to proceed. However, I believe that it is the best way of proceeding that is open to us. It became clear in Committee when not only Government Members studied the wording of the Bill but various interested bodies outside studied it that the protection that we intended to give to members of conferences was not absolutely certain. We thought that it was when we drafted the Bill, but when the General Council of British Shipping and other bodies looked at the Bill they were not satisfied that that was so. My hon. Friend the Member for Eastleigh (Sir D. Price) made some pertinent remarks about that. It was to try to meet what my hon. Friend said that we decided that the best way, although not necessarily a good way, was to proceed as we have done.
I have no doubt that my noble Friends in another place will wish to take the advice of my right hon. Friend the Member for Worthing and look at the matter. All I can do is apologise for the fact the the Ministers did not foresee all the problems. We thought that we had, but the Committee convinced us otherwise. I hope that that general reassurance, and the knowledge that the matter can be considered again in another place, will persuade my right hon. Friend to accept the situation.
I am grateful to the hon. Member for Dewsbury (Mr. Ginsburg) for his remarks. He has got it exactly right. We are proceeding in this way because it is the best that we can do in the circumstances.
When I mentioned international mandatory conciliation I was referring to part two, chapter VI of the Schedule, which refers to the provisions and machinery for the settling of disputes and also international mandatory proceedings. My right hon. Friend said that subsection (2) did not give good guidance, but I believe that that is the most precise guidance that we can give in the circumstances. It provides a basis for all parties to know 533 how responsibility can be deployed in general, but the precise way in which responsibility should be deployed will depend on the circumstances of the case. We believe that what we have said gives sufficient general guidance.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.