Ships in UK Law

It is now well settled that those who plead the section as a defence must discharge the burden of proving that they come within its terms. That is to say, they must show that they were themselves in no way in fault or privy to what occurred; in this case to the failure to render the ship properly seaworthy by taking care that the master was instructed about the special risk arising from its shape.

None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.

State-controlled enterprises, with legal personality, ability to trade and to enter into contracts of private law, though wholly subject to the control of their state, are a well-known feature of the modern commercial scene. The distinction between them, and their governing state, may appear artificial: but it is an accepted distinction in the law of England and other states (see Czarnikow Ltd. v. Rolimpex [1979] A.C. 351).

But these consequences follow inevitably from the entry of states into the trading field. Though, with much hesitation, I feel obliged to differ on this issue from the conclusion of the learned judge, I respectfully think that he well put this ultimate test:

In other words the loss of user for the time of repair, in effect, made the "Prestol's" then capital value infructuous for the time being, even though by special effort more benefit was got out of other ships, in which other capital was invested than would otherwise have been the case.

But the Appellants' actual loss in so far as it was due to their impecuniosity arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the Respondents' acts, and in my opinion was outside the legal purview of the consequences of these acts.

"(4) In the case of any such claim as is mentioned in paragraphs (d) to (r) of subsection (1) of section one of this Act, being a claim arising in connection with a ship, whore the person who would be liable on the claim in an action in, personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court and (where there is such jurisdiction) the Admiralty jurisdiction of the Liverpool Court of Passage or any county court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against -