Arthur Guinness, Son & Company (Dublin) Ltd v The Freshfield (Owners); The Lady Gwendolen
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE WINN |
| Judgment Date | 02 April 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0402-1 |
| Docket Number | 1962A No. 1843 |
| Court | Court of Appeal |
| Date | 02 April 1965 |
[1965] EWCA Civ J0402-1
Lord Justice Sellers
Lord Justice Willmer and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Hewson)
Mr. J.V. NAISBY, Q.C. and Mr. JEFFREYS COLLINSON (instructed by Messrs. Hill, Dickinson & Co., Liverpool) appeared on behalf of the Appellants (Plaintiffs).
Mr. H.V. BRANDON, Q.C. and Mr. JOHN WILLMER (instructed by Messrs. Waltons, Bright & Co., Agents for Messrs. Batesons & Co., Liverpool) appeared on behalf of the Respondents (Defendants).
The appellants' motor vessel the "Lady Gwendolen" on a voyage from Dublin to Liverpool collided with and sank the defendants' motor vessel the "Freshfield" at about 8 a.m. on the 10th November, 1961, when the "Freshfield" was at anchor near the C.19 buoy in the Crosby Channel, a buoyed approach to the River Mersey. The collision was due to complete and inexcusable negligence of the Master of the "Lady Gwendolen" in continuing his course in that channel at full speed in dense fog and further, and whil 1st so doing, in failing to have manned or himself effectively to observe and make use of the radar installation with which his ship was equipped and had been since he took over her command in 1953.
The appellants admitted liability and brought this action to limit their liability for the damage caused by the collision. The appellants are entitled by section 503 of the Merchant Shipping Act, 1894, to a decree limiting their liability if they establish that the loss or damage, though caused through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship, was so caused without their actual fault or privity.
The owners were not on board the "Lady Gwendolen" at the time of the collision. The ship was under the control of the Master, who was on the bridge in charge of the navigation with one able seaman at the wheel. Navigation of a ship at sea is so much in the hands of the Master, officers and crew and so much out of the control of the owners that the failure of an owner to establish no actual fault or privity in respect of navigation itself is exceptional and striking. Nevertheless Mr. Justice Hewson, a very experienced Admiralty judge, has found that the owners have not established that the loss occurred without their actual fault. No question of privity arises.
The owners' claim has been strenuously resisted in both courts and the case has been fought very largely on express allegations of fault set up by the defence. The learned judgedid hot accept all the defendants' submissions but he refused the owners a decree, as I understand the judgment, on broad grounds. Most if not all the grounds raised by the defence have been renewed and argued on behalf of the defendants, now respondents, in this court and the hearing has involved the consideration of many aspects of a limitation suit.
The main case made against the owners was that this highly negligent navigation of her Master was not an isolated act of negligence but that over the years of his service in this ship the Master had navigated at excessive speed in fog. The voyages to and from Dublin and the Mersey, either Liverpool or Manchester via the Ship Canal, were short and regular. Foggy weather was not infrequently encountered. The "Lady Gwendolen" according to her logs had on many occasions maintained full speed in fog and after a thorough and detailed cross-examination the Master admitted that he had done so. The Marine Superintendent, Mr. Robbie, had perused the logs in the performance of his duty but failed to detect the Master's habit of navigation in such dangerous circumstances or if he did so, or if he suspected it, failed, as the judgment finds, to warn the Master and to seek to deter him from this practice or to take any step to see that the Regulations were complied with. He failed to inform his employers, who throughout seem to have been unaware of the risks the Master of this ship was taking.
The judgment accepts the repeated disregard of the regulations and due care in fog by the Master and finds negligence of the Marine Superintendent in not acting so as to discover what was being done and to take effective measures to prevent it. The routine examination of the vessel's logs and the conclusion to be drawn from them seemed to me so clearly for the Marine Superintendent and his staff and not, so to put it, for the Board Room that I have felt a strong inclination to the view that the owners were entitled to rely on their servants to perform their respective duties and to report if there was anything wrong. The Master was admittedly a competent and capable Master. He held a MerseyPilot's Certificate. The Marine Superintendent was criticised because his experience had been in the engine room and not as a deck officer during his 20 years at sea but the learned judge held him to be a competent and suitable superintendent for the owners' purposes. The Marine Superintendent alone, it seems, made any check at all of the logs. Re accepted the entry on the deck log "M.O. T.R. observed", which meant "Ministry of Transport Rules observed", without comparing the deck log with the engine movement book. The judgment finds that the Superintendent "just assumed that the Master proceeded -at what was a safe speed and that the Master was the proper person to judge what was a safe speed in the conditions". The Superintendent did not supervise properly, though the judge was satisfied that he knew enough to enable him to do so.
With the obvious sources of fault lying with the Master and the Marine Superintendent, why has the judgment found actual fault on the owners or at least a failure on their part to establish no actual fault?
It is on account of the introduction of radar and the learned judge's view of an owner's obligation with regard to the supervision of its use. Reliance on a competent Master and an efficient Marine Superintendent has been held by him not to be enough to exonerate the owners.
I have felt the danger that the learned judge, so well informed of the troubles as well as the advantages which radar has brought in the navigation of ships, may have attributed his specialised and peculiar knowledge to the average shipowner and had perhaps imposed too high a standard or obligation on owners personally so as not to exonerate them even though they appointed and relied on competent servants.
The basis of the judgment is, I think, to be found in this extract: "The vital question, as I have already said, can be summed up in three words — 'Radar in fog', and I must be very careful now to analyse what I consider to be the duty of owners in this regard.
"There is no doubt that the introduction of radar into merchant ships after the last war created a new problem in relation to the navigation of ships in fog. Speaking generally, up to such introduction the situation had been unchanged in that respect for over a century, since the advent of steam and the introduction of the collision regulations. In regard to the advent of radar, these courts and learned Wreck Commissioners have repeatedly and publicly stressed the importance of the observance of Article 16, especially when ships are fitted with and using radar, and this over the years following the war and before the promulgation of notice M.445, and before this collision in 1961. It was a matter of the greatest importance in the safety of life and property at sea. The transgressions of some masters commanding ships fitted with radar in proceeding at excessive speed in fog was and is and should be a matter within the knowledge and the concern of ship owners. In the relationship between owners and masters there are, of course, many latters of detail which may be and are properly left to the intermediate managers and superintendents, and there are many latters which also are properly left to competent masters themselves, such as which course to take and when, and the general ay-to-day incidents of navigation, and so on. This example by to means exhausts the list".
M.445 was an important document published by the Ministry Transport in December, 1960. It made recommendations articularly in connection with navigation in fog by ships quipped with radar. It should of itself have been a guide to he Master to a similar extent as if it had been one of the egulations with which he was required to conform.
The Master had the form. He acquired it from the Custom House himself. I would not condemn the owners for that but it a notice which is also directed to shipowners and the plaintiffs as owners should have seen it and appreciated its importance. If they had done so as responsible owners they should, ad no doubt would, have spoken to all their Masters and theMarine Superintendent about it. if the master of the "lady Gwendolen" had been given some additional warning from manageria quarters about the safe use of radar it might have served to make him more cautious and urged him to comply with the regulations and advice given as, I think, he recognised in his evidence. This might have been effective even if the Master's previous habitual excessive speed in fog had Remained undetected by the Marine Superintendent or anyone else and had not therefore been the subject of a warning and reprimand.
It is no excuse for the plaintiffs that their main business was that of brewers and that the ownership of three ships was incidental to their business and solely for...
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