Asiatic Petroleum Company Ltd v Lennard's Carrying Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1913 |
| Date | 30 July 1913 |
| Court | Court of Appeal |
Court of Appeal
Vaughan Williams, Buckley, and Hamilton, L.JJ.
Asiatic Petroleum Company Limited v. Lennard's Carrying Company Limited
Virginia Carolina Chemical Company v. Norfolk and North American Steam Shipping Company LimitedDID=ASPMELR 12 Asp. Mar. Law Cas. 82 105 L. T. Rep. 810 (1912) 1 K. B. 229
The GlendarrochDID=ASPMELR 7 Asp. Mar. Law Cas. 420 70 L. T. Rep. 344 (1894) P. 226
Smitton v. Orient Steam Navigation Company LimitedDID=ASPM 10 Asp. Mar. Law Cas. 459 96 L. T. Rep. 848
The Fanny 28 Times L. Rep. 217
The WarkworthDID=ASPM 5 Asp. Mar. Law Cas. 194 49 L. T. Rep. 715 51 L. T. Rep. 558 9 P. Div. 20
Spillers and Bakers Limited v. W. Robertson; The DiamondDID=ASPMELR 10 Asp. Mar. Law Cas. 286 95 L. T. Rep. 550 (1906) P. 282
The Spirit of the Ocean 12 L. T. Rep. 239
Re Young and Harston's Contract 53 L. T. Rep. 837 31 Ch. Div. 168, 174
Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), s. 502
Cargo — Loss by fire — Unseaworthiness of ship
Decision of Bray, J. (reported 12 Asp. Mar. Law Cas. 269; 107 L. T. Rep. 651) affirmed.
MARITIME LAW CASES. 381 CT. of App.] Asiatic Petroleum co. Lim. v. Lennard's carrying co. Lim. [Ct. of App. May 28, 25,26,27,28,29,30, and July 30,1913. (Before Vauqhah Williams, Buckley, and Hamilton, L..TJ.) Asiatic Pbtbotjbwm Company Limited v. Lbnkabd's Oabbtiho Company Limitbd. (a) APPEAL FROM THE KING'S BENCH DIVISION. Cargo-Loss by fire - Uneeaworthineu of *hip - Liability-Fault or privity of owners--Merchant Shipping Act 1894 (57 A 68 Vict. e. 60), 502. A cargo of oil earned on board a thip wot destroyed by fire, the cause of the loss hnng the stranding of the ship occasioned by i\e unseaworthiness of her boilers. Held (Vaughan Williams, L.J. dissenting), that the owners teen not entitled to the protection of eeet. 502 of the Merchant Shipping jLet 1894, as the loss had not happened without their actual fault or privily. Per Buckley, L.J.t the words "actual fault or privity " infer something personal to the owner, something blameworthy in him as distinguished from the fault or privity of his servants or agents. Per Hamilton, L.J.,that if the sources of information had been used and not neglected, the condition of the boilers would have been -learnt in time. In the present case the managers had from time to time such knowledge of the matter as made them blameworthy for the ship's unseaworthiness. Decision of Bray, J. (reported 12 Asp. Mar. Law Cos. 269; 107 L. T. Sep. 651) affirmed. Appeal by the defendants from a decision of Bray, J. in an action tried by him in the Com. mercial Court without a jury. The plaintiffs' claim was for damages for breach of contract and breach of duty on the part of the defendants in and about the carriage of a cargo of benzine on board the defendants' uteamuaip Edward Dawson from Novorossisk to Botterdam. Bray, J. held that as the owners had not fulfilled their duty in seeing that the ship was seaworthy, they were not entitled to the protection of sect. 502 of the Merchant Shipping Act 1894, as the loss bad not happened without their actual fault or privity, and he gave judgment for the plaintiffs. The defendants appealed. The facts and arguments are sufficiently stated in the judgments. Sankey, K.O. and Roche, K.3. for the appellants. Atkin, K.C., Maurice Hill, K.C., and Mdekinnon for the respondents. Cur. adv. vult. July 30. - The following judgments were delivered:- Vauohah Williams, L.J.-Bray, J. begins his judgment by thus stating the cause of action: " This action was brought by the indorsees of certain bills of lading under which benzine oil was to be carried by the defendants on board their tank steamer Edward Dawson from Novorossisk to Rotterdam. The Edward Dawson shipped the oil at Novorossisk, and sailed on the 7th Sept. 1911. She went ashore near Flushing on the 1st Oct., and within six hours thereafter the oil took fire and was destroyed. The plaintiffs alleged that the Edward Dawson was unsea worthy when she left Novorossisk owing to defects in the boilers; that she was driven ashore owing to want of steam arising from those defects; and that the fire was caused by the stranding and its consequences. The defendants disputed these allegations, and contended farther that they were protected by sect. 502 of the Merchant Shipping Act 1894" This statement by Bray, J. seems to me to state eumciently the matters in dispute in this action. Seot 502 of the Merchant Shipping Act 1894 runs thus: "The owner of a British seagoing ship, or any share therein, shall not be liable to make good to any extent whatever any loss or damage happening without his aotual fault or privity in the following cases-namely, [1) Where any goods, merchandise, or other things (a) Reported by Edware J, M. Chaplin. Esq, Barrister-at-law. 382 MARITIME LAW CASES. Ct. of App.] Asiatic Petroleum Co. Lim. v. Lennard's Carrying Co. Lim. [Ct. of App. whatsoever taken in or put on board bis ship are .lost or damaged by reason of fire on board the ship." Bray, J. deals first with the question whether the ship Edward Dawton was unsea-worthy when she left Novorossisk. He comes to the conclusion that the Edward Dawton, when she left Novorossisk, was uoseaworthy by reason of the defects ia the boilers, and Mr. Sankey, who argued this oa*e on behalf of the defendants, admitted this unseaworthiness at Novorossisk. The next question Bray, J. propounds to himself is: " Whether the ship was stranded owing to the inability of the boilers from their defects to raise sufficient pressure of steam." Bray, J. comes to the conclusion that before entering the channel the combustion chambers of the two centre furnaces had been so completely salted up that there were then only four available instead of six. The ship passed Dover at 3 a.m. on Saturday, the 30th Sept. Soon after there was a gale, with heavy sea; at 3.30 the captain, who up to that time had kept his course to Rotterdam, hove to- that is, turned the ship's head to the wind, which was slightly west of north. After stating these faots, Bray, J. says: " I see no ground for saying tLat this was not a prudent course." I agree that this statement of the condition of the ship np to the time of the turning of the ship's head to the wind is fully justified by the evidence, except that I think Bray, J. understates the viofenoe of the gale. Looking to the independent weather reports, I think it is plain that the gale was of a hurricane type, notwithstanding the evidence of Captain Wood, of the Wrexham, which was in the North Sea on that night, who said that it was a gale that an ordinary boat of the class of the Edward Dawton should have been able to ride out successfully with seaworthy boilers. The Wrexham was in a different part of the North Sea, under the shelter of the English coast, end not on the Dutch coast; and the list of wrecks which was put in is eloquent of the violence of the sea on that night on the Dutch coast. I think that the evidence shows that until the tube burst the boilers of the Edward Dawton' enabled her to hold her own against the drifting and that them is no evidence to show that the tube which burst was an old tube of fifteen years' standing, and not a new tube, which sometimes burst unexpectedly with the best machinery. I therefore doubt if the evidence justifies the conclusion by Bray, J. " that the stranding on the Botkil] Bank was o&used by want of steam which was caused by the unseaworthy condition of the boilers. I find the same with regard to the second stranding. Once having been drives on to Botkill Bank, what happened afterwards was the natural consequence of having been driven into such a dangerous position with possibly some injury to her steering gear." If this conclusion of Bray, J. had been a conclusion arrived at on a conflict of evidence or a nondtasion of fact based on evidenoe of actual facts spoken to by witnesses, the duty of this court would, yrimd fade, at all events, be to accept such findings, bat the conclusions with which the court has to deal here are mere probabilities based on evidence which has no direct application to the conclusions arrived at by the learned judge. The next question dealt with by Bray, J. is whether the loss of the cargo was the consequence of the Btranding. The learned judge eajjB: " I suggested to counsel, in the course of their arguments, that if it was shown that the stranding caused a danger to arise, that even though reasonable care were taken the benzine might catch fire, and not owing to any negligence, then the stranding was the effective cause of the loss of the benzine. I am not putting this as an exhaustive statement of the law on the subject, but both counsel accepted it as sufficiently correct in this case. Now it was clear that the tanko were injured by the stranding to such an extent as to allow some of the benzine to escape. Where it escaped was not ascertained, nor the extent of the leakage...
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