Cammell Laird & Company Ltd v Manganese Bronze and Brass Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Tomlin,Lord Warrington of Clyffe,Lord Russell of Killowen,Lord Macmillan,Lord Wright |
| Judgment Date | 27 March 1934 |
| Judgment citation (vLex) | [1934] UKHL J0327-1 |
| Date | 27 March 1934 |
| Court | House of Lords |
[1934] UKHL J0327-1
House of Lords
Lord Tomlin.
Lord Warrington of Clyffe.
Lord Russell of Killowen.
Lord Macmillan.
Lord Wright.
After hearing Counsel, as well on Tuesday the 6th, as on Thursday the 8th, Friday the 9th, Monday the 12th, Tuesday the 13th and Thursday the 15th, days of February last, upon the Petition and Appeal of Cammell Laird and Company, Limited, whose registered office is situate at Shipbuilding and Engineering Works, Birkenhead, in the County of Chester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 1st of March 1933, except so far as regards the words, "and of the said Cross Appeal which is hereby dismissed", might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, except so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Manganese Bronze and Brass Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 1st day of March 1933, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Roche, of the 28th day of July 1932, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants, the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellants are shipbuilders with a shipbuilding yard on the River Mersey.
The Respondents are makers of ship propellers and other articles made of manganese bronze manufactured in accordance with a special process belonging to the Respondents.
On the 31st January, 1930, the Appellants, by two separate contracts, contracted to build for and sell to United Molasses Co., Ltd. (hereinafter called the owners) two sister vessels subsequently named the Athelfoam and the Athelbeach.
Each contract provided for the building, fitting up and completion by the Appellants at their own expense of the vessel therein referred to in accordance with agreed specifications and plans and for the purchase by the owners of the vessel when completed. Each vessel was to be constructed to be classed at Lloyd's 100 A1, for carrying petroleum or molasses and all things necessary to obtain the classification were to be done by the Appellants.
The Athelfoam was to be fitted with main propelling Diesel engines of "North-Eastern" type, to be constructed by the North-Eastern Marine Engineering Co., Ltd. The maximum horse-power of these engines was 2,300 shaft horse-power at 110 revolutions per minute.
The Athelbeach was to be fitted with main propelling Diesel engines of Burmester & Wain Harland & Wolff type to be constructed by Messrs. John G. Kincaid & Co., Ltd. The maximum horse-power of these engines was 2,150 shaft horse-power at 105 revolutions per minute.
Except for the difference in the make of the engines there was to be substantially no difference between the two vessels.
The Athelfoam which in the Appellants' yard was known as No. 972 was to be completed and handed to the owners not later than 12 1/2 calendar months from the 1st December, 1929.
The Athelbeach which in the Appellants' yard was known as No. 973 was to be completed and handed to the owners not later than 13 1/2 calendar months from the 1st December, 1929.
In February, 1930, the Appellants after some correspondence with the companies supplying the two sets of engines for the two twin vessels as to the most suitable form of propeller for such vessels approached the Respondents for a quotation for the supply of the necessary propellers.
This approach led on the 14th April, 1930, to the placing by the Appellants with the Respondents of a provisional order for the propellers expressed, omitting formal parts, in the following terms:—
"Engines Nos. 972/3.
With reference to your quotation of the 4th March last amended per your representative on the 8th instant, we now place provisional order with you for one four-bladed right-hand solid bronze Propeller for each of the above Engines.
The Propeller to be 16' 0? diameter with 11' 3? Pitch and to have a total developed area of 80 square feet in four blades. To be supplied by you finished machined complete, polished all over in the highest class style with boss bored and keyway cut to our templates. Edges brought up to fine lines, true to pitch, ready for fitting on to shaft, for the sum of £638 each, delivered carriage paid to these Works.
Our official order will be forwarded to you in the course of a few days."
The provisional order was acknowledged by the Respondents in a letter dated the 15th April, 1930, in which they said:—
"We note your official order will follow in the course of a few days and when sending same we should be obliged if you would kindly mention the maximum indicated horse-power with corresponding revolutions to enable us to check sections for guarantee purposes."
The guarantee referred to in this letter was apparently the usual guarantee given by the Respondents against defective material and workmanship for a period of six months after handing over of the vessel to the owners.
On the 1st May, 1930, the Appellants wrote to the Respondents enclosing a working print No. 206,694, giving the information as to the horse-power and revolutions of the engine and asking whether the scantlings proposed (that is as shown on the working print) had their approval.
On the 19th May, 1930, the Respondents wrote to the Appellants "We confirm that the scantlings shown on your working print are in order on the basis of I.H.P. and revolutions you mention."
On the same day the Appellants placed with the Respondents an order for the propeller of each of the two vessels.
The order for the propeller for the Athelfoam was as far as material in the following form:—
Messrs. Manganese Bronze & Brass Co. Ltd.,
Job Engines No. 972. …… …… …… ……
Propeller of special Parsons manganese bronze.
One four bladed, right hand solid Propeller, to be 16' 0? diameter with a pitch of 11' 0? and to have a total developed area of 80 square feet in 4 blades. Maximum B.H.P.—2150 at 105 R.P. Minute.
Propeller to be supplied finished machined complete and polished all over in highest class style, with boss bored; faced; and keyway cut to our template, edges brought up to fine lines, true to pitch; ready for fitting to shaft on delivery.
Please notify us in good time when ready for templates.
Copy of pitch readings to be sent to us for our information.
Sweeps, boards, etc., to be supplied by you.
For further particulars see Print No. 206699 a copy of which you have.
To be guaranteed against defective material and workmanship for a period of six calendar months after handing over of vessel to Owners.
To be to the entire satisfaction of the Owners representative and ourselves.
Price £638/-/- lump sum.
The order for the propeller for the Athielbeach was in the same form mutatis mutandis but with the 1st August substituted for the 14th July, as the date of delivery.
It will be noted that in these orders the pitch had been altered from 11' 3? as shown in the provisional order to 11' and that a different working print is referred to.
The alteration in pitch appears to have been the result of further consultation between the Appellants and the makers of the engines and the new working plan gave effect to the alterations.
Such new working plan was in fact sent by the Appellants to the Respondents in a letter dated the 21st May, 1930, in which they said "we send you a copy of Print No. 206699 to which we require you to work."
Some further correspondence took place as to price which was ultimately agreed at £672 per propeller.
The Appellants also later proposed again to alter the pitch but ultimately on the 14th June, 1930, they wrote to the Respondents to make the pitch 11' as originally ordered adding "It is, however, important that this figure should be a minimum and we should prefer that any errors in manufacture should tend to coarsen the pitch."
The working drawing to which the Respondents were required to work showed according to the evidence of the Respondents' experts the information necessary to enable the order to be carried out. This information included particulars as to the thickness required along the medial lines of the propeller blades but beyond these particulars and the direction in the order "edges brought up to fine lines" there were no specific instructions as to the thickness of the blades.
Mr. Mearns the manager of the Respondents' marine department stated in his evidence that all the rest of the thickness of the blade apart from the thickness of the medial line was a matter for the Respondents as propeller experts and that if particular importance had been attached to the thickness of the edges a dimension would be expected to be given by the Appellants.
The two propellers were in fact constructed in all...
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