The Brimnes, Tenax Steamship Co Ltd v Owners of the motor vessel Brimnes

 

[1974] 3 All ER 88

Court of Appeal

 

The shipowners sent a telex message to the charterers at some time between 1730 hrs and 1800 hrs BST withdrawing their ship from the charterers service. The message was sent and received instantaneously on the charterers' telex machine during their normal business hours at their office and while the member of the their staff who was in charge of the machine was present. The charterers claimed that the telex message withdrawing the ship was not seen until the start of following day. The issue before the court was whether the notice of withdrawal took effect when it was received or not until it was actually read.

 

Although this case deals with the acceptance of the breach of contract the principles regarding the communication are the same as the communication of acceptances.

 

Megaw LJ

 

The time of notice of withdrawal

 

The learned judge reviewed with care the acutely conflicting evidence as to the time when the telex notice of withdrawal was despatched from the office of Embiricos SA Ltd and received at the charterers' office on the evening of 2 April. There was no doubt that the telex machine in the charterers' office was in working order and was set so as to invite and receive messages. This telex message, when it was sent, was reproduced in the charterers' office simultaneously with its despatch. The judge held that the telex message was certainly sent, and received on the charterers' machine before 18.00 hours. The time which he found was 17.45 hours...

 

On the assumption that, as I think plainly must be so, this court upholds Brandon J's findings of fact, there was lengthy and elaborate argument, with the citation of numerous authorities, as to the principle applicable for deciding the time at which such notice ought to be treated as having been effectively given.

 

With all respect, I think the principle which is relevant is this: if a notice arrives at the address of the person be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication, so as to postpone the effective time of the notice until some later time when it in fact came to his attention.

 

It was conceded on behalf of the charterers that if Mrs Sayce, an employee of theirs, had seen the telex message when it arrived at the charterers' London office on 2 April, her sight of it would constitute effective notice to the charterers at that moment... It follows that if the judge had held that Mrs Sayce saw the telex message that would have been the end of any argument on this point. Notice would have been effectively given before 18.00 hours. But the charterers say that they escape from that conclusion because the judge said that he was inclined to accept that Mrs Sayce was not in fact aware of the telex message, despite the fact that it had arrived and her own emphatic evidence that if it had arrived she could not have failed to see it. The judge was inclined to think that, contrary to her own insistence, either she left the office before 18.00 hours or she neglected to pay attention to the telex machine in the way she claimed it was her practice to do.

 

I do not think that avails the charterers in the way in which their case was presented. The shipowners have rebutted the charterers' case that the message had not arrived by 18.00 hours. I do not think that the shipowners were obliged, before the time of the receipt in the charterers' office could be treated as the effective time of the giving of the notice, to go on to establish affirmatively that which the charterers themselves asserted: namely, that a person competent to receive the message was there at that time, and, being there, should have seen it. As I have already said, I do not think that the law regards the effective time of the giving of a notice as liable to be postponed because of some failure by the recipient to see it in the ordinary course of a business competently conducted in a normal businesslike way. I do not think that in the circumstances any burden rested on the shipowners to show that in the ordinary course of business some competent person ought to have been in the office to receive the message when it arrived before 18.00 hours, since the case for the charterers was: 'A competent person was there'.

 

I agree with Brandon J that the notice was effectively given when it appeared on the telex machine in the charterers' office before 18.00 on 2 April, when, according to her own evidence, it should have been seen by Mrs Sayce.