THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP ''DONG DO'' v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIPS ''DONG DO'', ''BA DINH'' AND ''HANOI 1''

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REASONS FOR JUDGMENT

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Clough, J.A.:

1. These are the reasons of the court for two orders made on the 30th January 1992 in relation to two interlocutory applications by the plaintiff appellants in this appeal. One order dismissed the plaintiffs application for an extension of time for setting down the appeal. The other order granted the plaintiffs application for a stay of execution pending appeal of the order for costs made against them below.

2. The appeal arises from the judgment of Sears J. in an Admiralty action in rem given on the 4th June 1991 dismissing the plaintiffs claim against the defendants. The plaintiffs filed their notice of appeal on the 6th September 1991 in respect of the judgment, which did not deal with the costs of the action. On the 7th September the plaintiffs issued a chambers summons applying for an order extending (in manner hereinafter appearing) the time for setting down their appeal under Order 59 rule 5. On the 26th September the defendants filed a respondents' notice supporting the judgment.

3. On the 21st November Sears J. made an order awarding the costs of the action to the defendants. On the same day the plaintiffs applied to the judge for a stay of execution of his order for costs, pending appeal. Evidently, being aware of the plaintiffs previous related pending application ("the first application") for an extension of time for setting down the appeal, the judge adjourned the plaintiffs' later application ("the second application"), for stay of execution of his costs order, to the hearing of the first application by a single judge of the Court of Appeal. A formal summons in respect of the second application was issued on the same day.

4. On the 6th December both applications came before me and were referred pursuant to Order 59 rule 14(10) for hearing by the Court of Appeal. after counsel for both parties had indicated that the parties intended in any event to exercise their rights under Order 59 rule 14(12) if my decision were adverse to them on the first application, which I regarded as raising a novel issue meriting determination by the Court of Appeal, Both applications were heard by this court on the 29th and 30th January 1992. For the purposes of Order 59 rule 14(4) we regarded the judge's adjournment of the second application to this court as having been properly directed by reason of the inter-relation of the two applications giving rise to special circumstances making it impracticable for the judge to deal with the second application on its own. On the 30th January this court dismissed the first application and allowed the second application for reasons which we give now.

5. The judgment of Sears J. which has given rise to the plaintiffs' pending appeal was concerned with their claim as owners and consignees of three lots of electrical machinery and equipment which were damaged when in transit on a voyage in the defendants' vessel (the "Dong Do") from Japanese ports to Hong Kong in May 1987. The plaintiffs issued their writ on the 11th July 1988 claiming in bailment and tort against the defendants as owners of the vessel in question. The defendants raised no defence to liability in tort and quantum was agreed. However they claimed to have been parties to the three relevant bills of lading comprising or evidencing the contracts of carriage and relied on a contractual or statutory time bar incorporated by the provisions of the bills of lading.

6. The crucial issue between the parties was therefore whether the defendants, who were not named in the three bills of lading, were nevertheless parties to the contracts off carriage comprised in or evidenced by them and accordingly entitled to the benefit of the limitation defence made available to the carrier under the bills. The bills of lading had been issued in a printed form by Meishin Shipping Co. Ltd. ("Meishin") which was the voyage charterer of the vessel under a Fixture Note dated the 24th April 1987 incorporating the terms of a GENCON charterparty. The question thus arose in the action whether the relevant three bills of lading (which had indisputably been issued by Meishin with the defendants' authority) were to be interpreted as owners' (i.e. the defendants') bills.or charterers' (i.e. Meishin's) bills.

7. The judge ultimately decided this question in favour of the defendants. Having held that the bills of lading were governed by Japanese law, he first construed them in accordance with Hong Kong law because this was necessary in order to ascertain which party should undertake the burden of rebutting the presumption that foreign law is the same as Hong Kong law until proven otherwise. Construing the bills under Hong Kong law the judge was of the view that they were on their face charterers' bills, but that in each case the effect of the demise clause (clause 3 of each bill which he held to be a valid clause) was to render the bills shipowners' bills.

8. This finding placed the burden on the plaintiffs to show that Japanese law required a different interpretation of the bills. On this question the judge had the benefit of conflicting evidence from a Japanese legal expert for each of the respective parties. However it seems to have been common ground between them that the Hong Kong concept of judicial precedent formed no part of Japanese jurisprudence and that under Japanese law it was a question of construction whether the bills of lading were shipowners' or charterers' bills. On this question the judge preferred the evidence of the defendants' expert. Whilst he was again of the view that, construed in accordance with Japanese law, the bills of lading appeared to be, on their face, charterers' bills, the judge held that Japanese law on demise clauses had not been proved to his satisfaction to be different from English or Hong Kong law. He therefore' concluded that under Japanese law the bills of lading were to be construed (as under Hong Kong law) as shipowners' bills.

9. In arriving at his conclusion on this last question, concerning the construction of the bills of lading in accordance with Japanese law, the judge seems to have been influenced inter alia by two factors. One was that, after judgment had been reserved in the action on the 26th February 1991, evidence became available of a recent decision (on the 19th March 1991.) by a Japanese court, equivalent to the High Court in Hong Kong, in a case, (referred to as the "Jasmine") where a demise clause was involved and the Japanese court held that the shipowner and not the charterer was the carrier. The defendants obtained leave to adduce evidence of this decision in the action before judgment was given. Their legal expert relied upon the Jasmine as being of persuasive support to their case. The plaintiffs' expert was unimpressed by the decision which he also sought to distinguish on the facts and he pointed out that it was subject to appeal to a higher court. Of the Jasmine the judge observed in his reserved judgment:

"    I have received an additional affidavit from each expert commenting on a recent decision of the Tokyo District Court, with which Mr. Hiratsuka was concerned. The 'Jasmine' was decided by a Court equivalent to the Hong Kong High Court and the' Chief Justice was one of the Judges. Whilst the decision appears to be based on a contextual construction of the bill of lading, certain observations are made about the demise clause which is in the standard form. I am informed that this decision is to [be] appealed, but the general approach of the Court to the demise clauses appear[s] in my opinion to equate more closely to Hong Kong law."

Another factor which clearly weighed with the judge was his discernment of underlying error in the evidence of the plaintiffs' legal expert, upon whom the judge commented towards the end of his judgment:

 "    However, underlying Mr. Nishiyama's reasoning is his opinion that, as under Japanese law there can only be one carrier, where a ship is chartered, the ship-owner could not be the carrier. He was asked in cross-examination what would be the position if a ship is voyage-chartered and the shipowner wants to be the contracting party - he answered that this could not be done. He sought to explain this answer by saying that the space in the ship has been given to the charterer who then becomes the carrier. This line of reasoning only emerged in oral evidence and seems, in my judgment, to be contrary to the generally held proposition that in a voyage charterparty the court has to construe the bill of lading to ascertain which of the two competing parties - the ship-owner or the charterer - is the carrier. This exercise is unnecessary if Mr. Nishiyama's assertion is correct

    As a matter of fact, having considered all the evidence available to me I consider Mr. Nishiyama to be in error. This wrong approach may well have clouded his opinion on demise clauses."

1. The first application (extension of time for setting down the appeal)

10. In substance the plaintiffs contend by their grounds of appeal that the judge erred in dismissing their claim:

(A) In relation to Hong Kong law because -

(i) Having correctly construed the bills of lading on their face as shipowners' bills the judge ought to have held that such a construction was not displaced by the demise clause (grounds 1 to 3).

(ii)The judge wrongly regarded the terms of the demise clause in the bills of lading as the same as the standard clause recognised as valid in Hong Kong whereas the clause in the bills in question in the action contained an additional sentence which rendered the clause materially different from the standard clause (grounds 4 and 5).

(iii) The judge misconstrued the additional sentence in the demise clause in the bills of lading which, properly construed, was to be regarded as making it clear that the clause was not a demise clause but was intended inter alia to make it clear that in the present case Meishin, as voyage charterers, had not only issued the bills of lading but also undertaken to be the contracting carrier, so that the judge had wrongly held that the bills were shipowners' bills (grounds 6 to 9).

(B) In relation to Japanese law because

(i)if the judge had construed the bills of lading properly under Hong Kong law, in the manner indicated under (A) above, he would have held that the burden was on the defendants to prove that under Japanese law the bills ought to be construed (otherwise) as shipowners' bills (ground 10).

(ii) The judge erred in his construction of the bills of lading as shipowners' bills under Japanese law in that :

(a) Having rightly held that on their face the bills of lading were charterers' bills, the judge failed to have regard to five specified features of Japanese law which further supported the construction of the bills as charterers' bills (grounds 11 and 12).

(b) The judge wrongly construed the demise clause in the bills of lading as if it were in the standard form and failed to give the proper construction to the additional sentence in that cl ause (ground 13).

(c) If clause 3 of the bills of lading was properly to be construed as a demise clause the judge erred in holding that the general approach of the Tokyo District Court to demise clauses appeared to him to equate more closely to Hong Kong law, because he ought to have held that under Japanese law a demise clause is invalid and of no assistance in construing a bill of lading and, in particular, in identifying the parties to the contract of carriage contained in or evidenced by the bill (grounds 14 and 15).

(d) In erring as indicated in (c), above and in holding that it had not been proved to his satisfaction that Japanese law on demise clauses was different from English (Hong Kong) law the judge had wrongly relied on or placed too much weight on the decision of the Tokyo District Court in the Jasmine as being evidence that under Japanese law a demise clause was valid (ground 16).

(e) The judge failed to attach sufficient weight to the plaintiffs' expert witness to the effect that under Japanese law a demise clause is invalid because the effect of such a clause was to re-introduce Article 759 of the Japanese Commercial Code which has been expressly excluded from the Japan International Carriage of Goods by Sea Act ("COGSA") and because such a clause is contrary to Article 15(1) of Japanese COGSA. If the judge had given due weight to the evidence of the plaintiffs' expert witness he would have held the relevant bills of lading to be charterers' bills and that the shipowners were not parties to the relevant contract of carriage and so not entitled to the benefit of the time bar provided for in the bills (ground 17, 18 and 19).

11. The plaintiffs' summons for an extension of time sought an order that the time for setting down the appeal (which had not expired) be extended to one month after "final determination or other resolution of the appeal now pending before the Japanese High Court in the "JASMIN[E]" case or until further order". The application was supported by the affidavit evidence of the plaintiffs' solicitor Mr. McIntosh and the plaintiffs' expert witness Mr. Nishiyama, who is acting for the appellant in the Jasmine case which is the subject of appeal from the Tokyo District Court to the High Court. A copy of the relevant part of the equivalent of the appellant's notice of appeal in that case was exhibited to the formal affidavit of a partner of Mr. Nishiyama.

12. Mr. McIntosh deposed that in the Jasmine case there were different facts which pointed to the contract with the shipowners which the Tokyo District Court found to have been made. That court had, Mr. McIntosh deposed, gone on to make incidental observations that "..... a demise clause which provides the shipowner to be the carrier does not make it unclear as to who is the carrier under the Bill of Lading".

13. According to Mr. McIntosh the plaintiffs' first argument in their present appeal will be (as appears from grounds 14, 15 and 16 in the notice of appeal) that the judge failed to give full weight to the differences between the Jasmine case and the present case and placed too much weight upon the decision of the District Court in the Jasmine case which the judge assumed to have validated the use of demise clauses, whereas the decision of the District Court had been reached on other grounds. However Mr. McIntosh points out that, in his evidence below, Mr. Hiratsuka, the defendants' legal expert, had deposed that the decision in the Jasmine was support for the validity of demise clauses under Japanese law. If this be the case, Mr. McIntosh contended, then the Jasmine assumed greater importance in the present appeal because one of the grounds of appeal filed in the High Court in the Jasmine appeal by Mr. Nishiyama is that the Tokyo District Court was wrong in determining that the demise clause is valid and effective in Japanese law. Mr. McIntosh further deposed that if this ground were to succeed, as the appellants in the Jasmine case were advised is reasonably possible, then the chances of the plaintiffs' appeal in the present case will be significantly increased and they would then seek to adduce further evidence of the Jasmine decision in any subsequent hearing of their pending appeal.

14. Mr. Nishiyama's affidavit was in line with that of Mr. McIntosh which had been clearly based substantially on Mr. Nishiyama's advice.

15. By the defendants' respondents' notice they sought to support the judge's decision on the additional grounds that the judge should have held that (1) the relevant bills of lading.were subject to Hong Kong law and not Japanese law and (2) even on its face each of the bills was a shipowners' bill whether the applicable law was that of Hong Kong or Japan. The second ground was elaborated by the contention that the judge had failed to give sufficient weight to the fact that (a) on the face of the bill it was stated twice that the bill was signed for the master and (b) the defendants had authorised the charterers to issue bills of lading on their behalf.

16. The defendants relied on the affidavit, filed on the 25th November 1991, of Mr. Hiratsuka, who had been their expert witness below and is acting for the respondents in the Jasmine appeal. He agreed with the evidence of Mr. Nishiyama that the High Court would probably not give judgment in the Jasmine appeal before the expiration of 18 months from the date (10th July 1991) of filing of the appeal. He deposed that he would expect the judgment to be given in the first half of 1993 although there was slight possibility that it would be given in late 1992. Mr. Hiratsuka added that there was a possibility of a further appeal to the Supreme Court of Japan. In that event, he deposed, there would be a further delay of approximately one year even if the Supreme Court were to dismiss the appeal without a hearing, otherwise the final appeal could take 3 to 5 years, from the time the appeal was lodged.

17. On the hearing of the plaintiffs' application by this court the plaintiffs sought leave to file out of time and read an affidavit sworn by Mr. Nishiyama on the 24th January 1992 in reply to Mr. Hiratsuka's evidence regarding the question of further appeal to the Supreme Court of Japan. This was opposed by the defendants who did not object to the affidavit being read de bene esse. Mr. Nishiyama deposed to his belief that "while there is a slight possibility of a further appeal" in the Jasmine case it was "very unlikely". His evidence was that there was no appeal to the Supreme Court unless the judgment appealed (a) was clearly affected by error in the interpretation of the Constitution or ordinances or (b) failed to state reasons or stated mutually contradictory reasons. He seems to have inferred that the Jasmine case involved error in making a factual finding. He stated that the Tokyo High Court was unlikely to make errors constituting grounds for appeal to the Supreme Court. He went on to give evidence of statistics of the percentage (35 per cent) of civil and administrative litigation where appeals were taken to the Supreme Court and deposed that where maritime cases were taken on final appeal the Supreme Court gave judgment within one year

18. Mr. Fok for the plaintiffs submitted helpful and elaborate written submissions in support of the application. He did, not in terms identify Order 3 rule 5 as the basis for the "general discretion" to extend time which he invited the court to exercise. However we assume that the plaintiffs intended to invoke that rule because (the summons having erroneously referred to Order 15 rule 15) Mr. Fok did not invoke the inherent jurisdiction of this court to grant a stay which is reserved by section 16(3) of the Supreme Court Ordinance (Cap. 4). Furthermore Mr. Fok's written submissions referred to the practice notes in the Supreme Court Practice, Vol. 1, pp.918 and 921 relating to the discretion of the court under the rule to extend time for instituting and setting down an appeal. However Mr. Fok rightly acknowledged that this application is not of the same type as was considered by Griffiths L.J. in the leading case of C.M. Van Stillevoldt B.V. v. El Carriers Inc. [1983]1 WLR 207 and was more in the nature of an application for a stay of the appeal pending the determination of the Jasmine appeal.

19. In order to persuade the court to exercise its jurisdiction to extend time to achieve what amounted to a stay of the appeal Mr. Mok resorted to a number of analogies, including the principles applicable to appeals out of time which he submitted were applicable "because a fortiori, if the Plaintiffs would be permitted to appeal Sears J.'s decision out of time upon the Tokyo High Court deciding that demise clauses were invalid under Japanese law, the Plaintiffs ought to be entitled to decelerate the process of appeal."

20. There was, in Mr. Fok's submission, good reason to stay the appeal temporarily to enable the Tokyo High Court to determine the issue as to the validity under Japanese law of the demise clause in a bill of lading. Having regard to the defendants' concession as to liability and the judge's finding that the bills were on their face charterers' bills a decision by the Tokyo High Court that demise clauses were invalid under Japanese law would, Mr. Fok contended,constitute evidence which was likely to be determinative in support of the plaintiffs' appeal. An analogy was drawn with the procedure for a stay under Order 4 rule 9(1)(a). If the decision of the High Court in the Jasmine appeal were favourable to the plaintiffs they would seek to adduce fresh evidence of this fact (pursuant to order 59 rule 10(2) as matters occurring after trial or, alternatively as evidence admissible in accordance with Ladd v. Marshall [1954]1 WLR 1489) in order to show the true state of Japanese law.

21. On behalf of the plaintiffs it was contended that the defendants would not be prejudiced if the application were granted. The judgment, it was said, had no financial consequences for them. The arguments on appeal were purely legal arguments and the defendants had security in place from their P & I Club in case the appeal succeeded. It was contended that the delay was minimal because it was unlikely the appeal would came on before the autumn of 1992. Also, the defendants would benefit if the application were granted and the Tokyo High Court were to uphold the decision of the District Court in the Jasmine. Furthermore, it was contended, if this court were to hear and dismiss the plaintiffs' appeal before the Jasmine appeal were decided it would be open to the plaintiffs to seek leave to appeal to the Privy Council on the basis of the fresh evidence constituted by a favourable decision in the Jasmine appeal.

22. As to a possible further appeal to the Supreme Court of Japan in the Jasmine case, the plaintiffs relied on the evidence of Mr.Nishiyama that such an appeal was unlikely and emphasised that, whereas such an appeal remained a matter of uncertainty, the appeal to the Tokyo High Court was a known fact.

23. We were unable to accept these submissions, able though they were, as sufficient to persuade the court to exercise its discretion (whether inherent or under Order 3 rule 5) in favour of the plaintiffs in this application. In exercising the necessary balancing exercise we began with the consideration that, as Mr. Fok, fairly acknowledged, procedural time tables laid down by rules of court are ordinarily required to be strictly adhered to in this court. In the present case the plaintiffs had elected to institute an appeal against Sears J.'s judgment. They had done so in time but sought, in effect, to stay the appeal (and the recovery of costs by the successful defendants) until such time (if ever) as the High Court in Tokyo might decide the Jasmine appeal in a manner favourable to their contentions in this appeal.

24. If the plaintiffs' application had been granted it seemed to the court to be probable that the hearing of the appeal would have been deferred from the autumn of 1992 for at least three months and possibly longer, pending the determination of the Jasmine appeal in the High Court. In our opinion the possibility, to which Mr. Hiratsuka referred, of a further appeal to the Supreme Court in Japan (whatever the outcome of the appeal to the Tokyo High Court) could not be ruled out by the contrary opinion of Mr. Nishiyama, whose late affidavit we were prepared to admit although counsel for the defendants informed the court that the affidavit was received less than 48 hours before the hearing. At the very least there was a conflict of evidence between the experts on this question, but we also accepted Mr. Smith's submission that the nature of the arguments in favour of the invalidity under Japanese law of a demise clause in a bill of lading supported the contention that questions of the construction of COGSA and the Japanese Commercial Code were involved, so that the possibility of an appeal to the Supreme Court could not be ruled out. On this basis, even on Mr. Nishiyama's evidence, there was a real risk of further appeal and that the Jasmine appeal would not be finally determined (in the Supreme Court) for at least another year after the High Court's decision.

25. In addition to the risk of substantial (and possibly very substantial) delay if the plaintiffs appeal were stayed, as sought, there was the fundamental uncertainty as to the outcome of the Jasmine appeal in the Tokyo High Court in which the experts of the parties to this appeal are involved on opposite sides. If the Jasmine appeal should not be settled and should be decided in a manner unfavourable to the plaintiffs the stay would have served no useful purpose, because the defendants resist the application and are anxious to get on with the plaintiffs' appeal in Hong Kong. It was the patent uncertainty of the outcome of the Jasmine appeal in the High Court (and possibly in the Supreme Court) which seemed to us to destroy any possible comparison between the plaintiffs' application to extend time to set down the appeal pending the determination of the Jasmine appeal and the allegedly obverse situation of an application to appeal out of time after the Jasmine appeal had been determined. Indeed it seemed to us that the plaintiffs were seeking to have it both ways at the expense of the defendants by an application for what amounted to a stay on the basis of what Mr. Clifford Smith, for the defendants, rightly called a hypothetical favourable decision in the Jasmine appeal.

26. Furthermore, as Mr. McIntosh's evidence and the grounds of appeal summarised above demonstrate, the plaintiffs case on appeal relies initially on the argument that in any event the judge misconstrued the demise clause in the bills of lading and placed too much weight on the Jasmine decision in the District Court as being evidence that under Japanese law a demise clause in a bill of lading is valid. The case is manifestly a complex one involving difficult questions of construction. Despite a forceful argument from Mr. Clifford Smith in support of the second ground in the defendants' respondents' notice, (as to which we express no opinion save that the ground is clearly arguable), we were by no means persuaded that the initial contentions of the plaintiffs, which do not depend upon the outcome of the Jasmine appeal, do not amount to reasonable arguments which in themselves might result in the success of the plaintiffs' appeal.

27. It follows that the de facto stay sought by the plaintiffs is intended to ensure that, if (but only if) the final outcome (whenever that may be) of the Jasmine appeal (to which they are not parties) is favourable to the plaintiffs, they will have the advantage of another and admittedly powerful argument which might, if the grounds in the respondents' notice (particularly the second ground) fail, decide the appeal in the plaintiffs' favour. The price to be paid by the defendants for the de facto stay was the deferment of the determination of the appeal, from a judgment in favour of the defendants, for a substantial and uncertain period during which time the defendants would have had to maintain the security for the plaintiffs' claim of about (US)$300,000 in the form of a Club guarantee which inevitably would have adverse financial repercussions for the defendants.

28. Weighing all these factors in the balance we were left in no doubt that it would be unjust to grant the plaintiffs' application and that, although supported by an able argument by Mr. Fok, the novelty of the application was matched by its lack of merit. We therefore dismissed the application, but we will, if necessary grant any formal extension of time that may now be required in the order to enable the appeal to be duly set down without further delay.

2. The second application (stay of execution of the order for costs)

29. The plaintiffs' first application having been dismissed, the second application had to be considered on the basis that the appeal would have to be set down without further delay. This was therefore a case for the exercise of the court's discretion under Order 59 rule 13 in accordance with the general rule of practice that the onus was upon the applicant plaintiffs to satisfy the court that if there were no stay of execution of the order for costs against the plaintiffs, and those costs had to be paid, there would be no reasonable probability of getting the costs back if the appeal were to succeed. We were left in no doubt that the plaintiffs (who were prepared to give the usual undertaking for diligent prosecution of the appeal) had discharged this onus.

30. The plaintiffs had arrested a sister ship of the " Dong Do" when these proceedings began. The defendants secured the release of the arrested vessel upon provision of security of $2.5 million. However it was clear from Mr. McIntosh's evidence that if the plaintiffs' appeal were successful the total amount of their claim and their own costs below and on appeal would exhaust the security which would not cover the amount (approximately $1 million) of the defendants' costs recoverable by the plaintiffs after a successful appeal, if there had been no stay of execution.

31. The defendants (Hanoi Maritime Transportation Co.) are a Vietnamese corporation. The evidence in support of the application for the arrest of the sister ship ("Hanoi 1") of the "Dong Do" and the evidence of Mr. McIntosh in support of this application indicated that Lloyds Register cannot be relied upon for the identification of the vessels owned by the defendants at any specific time. Thus the Register for 1991/2 showed the defendants as the owners of "Hanoi 1", "Hanoi 02", "Ba Dinh" and "Dong Do" whereas further inquiries disclosed that "Hanoi 02" had been owned by another corporation since 1987. Furthermore the defendants' solicitor, Mr. Hardaker, deposed that the vessels currently owned by the defendants were only the "Dong Do" and the "Ba Dinh".

32. The defendants relied on the availability of their two vessels, which traded internationally and both of which had called in Hong Kong during the previous 12 months, as providing ample scope for the enforcement of any claim the plaintiffs might have, in the event of a successful appeal, to recover the costs paid by them to the defendants. We were not persuaded by these arguments. It seemed to us that, in the light of the combination of the foreign character of the defendants and the uncertainty created by mutations of ownership of foreign vessels which traded internationally, it could not be said that there was any reasonable probability of the plaintiffs being able, as successful appellants, to recover any costs they would have had to pay the defendants if no stay of execution were ordered.

3. Costs

33. No order for costs was made at the conclusion of the hearing of the applications. There will be an order nisi that the defendants are to have the costs of the first application and the plaintiffs are to have the costs of the second application. In making the order nisi regarding the second application we have borne in mind that the defendants did not oppose that application conditionally upon the first application succeeding, but the opposition was unqualified on the issue of reasonable probability of recovery on which they were unsuccessful.