Ballantyne & Company v Paton & Hendry
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1911 |
| Date | 13 December 1911 |
| Docket Number | No. 41. |
| Court | Court of Session |
Lord Guthrie, Lord Dundas.
ShipCharter-partyConstructionDischarge of cargoLiability for damage to ship through negligent discharge.
A charter-party provided:Cargo to be loaded, stowed, and discharged free of expense to steamer, with use of steamer's winch and winchmen if required.
Held that this clause had not the effect of transferring the duty of discharging the cargo from the shipowner, on whom it rests at common law, to the charterer, so as to render the latter responsible for damage received by the ship in the course of discharge.
ReparationShipDamage to ship in course of dischargeLiability of charterersNegligence of stevedores engaged and paid, but not controlled, by charterers.
In an action brought by the owners against the charterers of a ship for damages in respect of injury received by the ship during the discharge of the cargo, the pursuers averred that the defenders were liable, in respect that they had employed and paid the stevedores and the owners of a crane engaged in the discharge, by whose negligence the injury was caused.
Held that, as it was not averred that the defenders had undertaken the control of the discharge of the cargo, the pursuers had failed to set forth a relevant case; and action dismissed.
On 27th September 1910 R. B. Ballantyne & Company, Glasgow, owners of the steamship Bessie Barr, brought an action in the Sheriff Court at Glasgow against Paton & Hendry, Glasgow, who had chartered the vessel to carry a cargo of stones from Portland to Glasgow. The pursuers' claim was for damages in respect of injuries caused to the vessel during discharge at Glasgow while under charter to the defenders.
The charter-party, which was dated 30th March 1909, contained the following clause:(12) Cargo to be loaded, stowed, and discharged free of expense to steamer, with use of steamer's winch and winchmen if required.
The pursuers referred to the charter-party, and averred;It was provided therein that the cargo was to be loaded, stowed, and discharged by the charterers, and free of expense to the steamer. In answer the defenders stated:By the said charter-party it is provided that the loading, stowing, and discharging is to be done by the pursuers, but free of expense to the steamer.
The pursuers also averred;(Cond. 2) On 12th April 1909, in course of the discharge, and while a large stone was in course of being taken out of the hold, and after being raised in the hold it was allowed by those discharging the ship to swing about and finally catch under the combings of the hold, whereby the chain of the crane or sling-chain by which the stone was being hoisted up, broke, and the stone was precipitated some distance on to the floor of the ship. Damage was done to the sheathing, ceiling, and floor of the hold, and to two ladders therein. (Cond. 3) The defenders, in carrying out the terms of the charter-party by themselves or others for whom they are responsible, employed and paid the stevedores and owners of the crane engaged in the discharge of the vessel, and they are liable for the fault of persons employed in doing such work. (Cond. 4) Said accident was due to the fault and/or negligence of those discharging the said vessel, for whom the defenders are responsible under said charter-party, in not taking precautions to see that the said stone when in course of being hoisted was kept clear of the combings, and further, that the hoisting was carried out cautiously, so that, if there was risk of the stone catching on the combings, same should have been released...
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...that any such transfer must not only be clear but must also be unambiguous. This submission was based upon the Scottish case of Ballantyne v Patton and Hendry [1912] SC 246. That case concerned a charterparty which provided that "Cargo to be loaded, stowed and discharged free of expense to......
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Societe De Distribution De Toutes Merchandises En Cote D'Ivoire Trading as "Sdtm-Ci" and Others v Continental Lines N.v and Another
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