Clan Line Steamers v Board of Trade
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Sumner,Lord Buckmaster,Lord Warrington of Clyffe,. |
| Judgment Date | 16 April 1929 |
| Judgment citation (vLex) | [1929] UKHL J0416-1 |
| Date | 16 April 1929 |
| Court | House of Lords |
[1929] UKHL J0416-1
House of Lords
Lord Chancellor.
Viscount Sumner.
Lord Buckmaster.
Lord Blanesburgh.
Lord Warrington of Clyffe.
After hearing Counsel, as well on Monday the 11th as on Tuesday the 12th, days of February last, upon the Petition and Appeal of the Clan Line Steamers, Limited, whose Registered Office is situate at 109, Hope Street, Glasgow, 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 19th of July 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 Board of Trade, 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 19th day of July 1928, complained of in the said Appeal, be, and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an appeal from an Order of the Court of Appeal affirming the decision of the King's Bench Division upon an award stated in the form of a special case: the question which arises for determination is whether upon the facts as found by the Arbitrator the respondents are liable to pay to the appellants a sum of £265,000, representing the value of a steamship known as the Clan Matheson at the date of her loss in May, 1918. The appellants were at all material dates the owners of the Clan Matheson, which was requisitioned by letters dated the 28th September, 1917, upon the terms of a Charter-party known as "T 99."
By Clause 18 of the Charter-party it was provided as follows:
"The Admiralty shall not be held liable if the steamer shall be lost, wrecked … by, or in consequence of, collision … or any other cause arising as a sea risk".
Clause 19 of the Charter-party provided:
"The risks of war which are taken by the Admiralty are those risks which would be excluded from an ordinary insurance policy of marine insurance by the following but not more extensive clause:—'Warranted free of capture, seizure, or detention and the consequences thereof … and also from all consequence of hostilities or warlike operations …'"
On the 17th May, 1918, whilst the Clan Matheson was still under requisition upon the terms of the Charter-party she sailed from New York in convoy. She was bound for Nantes and her cargo consisted as to 84 per cent. of stores intended for the civil commissariat and as to 16 per cent. for the military authorities.
The convoy sailed in columns; the Clan Matheson was the third ship in the second column from the port hand; the regulation distance between each ship in the same column was 400 yards and the regulation distance between the columns was 800 yards; the corresponding ship in the port column was a vessel called the "Western Front," which was under charter to the Government of the United States of America and was bound for St. Nazaire with a cargo made up entirely of war supplies for that Government; St. Nazaire was a war base.
On the night of the 22nd-23rd May, 1918, the convoy was proceeding at a speed of from 9 to 9 1/2 knots; there was a rough sea; the convoy was sailing without lights, but it was a moonlight night, visibility was good and every vessel in the convoy could easily be seen. About 1 a.m. the Second Officer of the Clan Matheson, who was then on watch, noticed that the ship ahead of him in his column was on his starboard bow. He ordered the quartermaster to port the helm, but found that the ship did not respond. He repeated the order, and then went to the helm and found the wheel hard a-port. He suspected that something in the steering gear had suddenly given way, and he called the Captain and the Chief Engineer. The engines were put astern and attempts were made to adjust the steering gear, but meanwhile the Clan Matheson swung right across the bows of the "Western Front," which struck her amidships and approximately at right angles. The Clan Matheson sank within two hours and became a total loss; the time which elapsed between the moment when the Second Officer first noticed that the Clan Matheson was out of her course and the moment of the collision was estimated by him at from 2 1/2 to 4 minutes, and this seems on the data given to be an outside estimate. It was admitted on the pleadings that the Western Front was engaged upon a war-like operation; it was contended before the Arbitrator that the Clan Matheson was also engaged upon a war-like operation; the Arbitrator negatived this contention and though the appellants challenged this finding in the Courts below, at your Lordships' bar it was conceded that the finding was one of fact and that there was material to support it and the contention was abandoned. There was no express finding upon the question whether there was negligence in the navigation of the Western Front; but in the courts below Counsel for the appellants admitted that negligence on the part of those in charge of the Western Front could not be suggested—that is to say, in the language of the learned judge, "The Western Front could not avoid striking the Clan Matheson as she did when the Clan Matheson swung out of her course and across the bows of the Western Front." The Arbitrator held that there was no negligence on the part of the appellants or those in charge of the Clan Matheson and he found "that immediately before the collision the steering gear of the Clan Matheson broke down and failed to operate, and that by reason thereof the said vessel sheered to port and across the course of the Western Front."
So far as appears, there was no suggestion at the time of the accident that the Admiralty was under any liability in respect thereof; but on the 11th August, 1926, encouraged apparently by their reading of certain decisions in Your Lordships' House, the appellants by their solicitors wrote a letter to the respondents alleging that at the date of the collision the Clan Matheson was upon a war-like operation, and that there was therefore a claim upon those bearing the war risk insurance under the Charter-party.
The claim was referred to the sole arbitration of Mr. Claughton Scott, from whose award I have extracted the findings of fact to which I have called Your Lordships' attention. The learned Arbitrator held upon these findings that the loss of the Clan Matheson was a consequence of war-like operations within the meaning of Clause 19 of the Charter-party, and consequently that the respondents were liable; and he stated his award in the form of a special case. The special case was argued before Mr. Justice Wright, and he reversed the decision of the Arbitrator. From that judgment the appellants appealed to the Court of Appeal, and by a majority (Scrutton L.J. and Lawrence L.J., Greer L.J. dissenting) that Court upheld the decision of the judge and dismissed the appeal; from this decision the present appeal is brought.
In order to decide the question raised in the appeal it is necessary to refer to certain decisions which have already been given in this House upon the construction to be placed upon these two clauses in the Charter-party. In the case of the Petersham, 1921, 2 A.C., p. 100, it was held that sailing without lights is not a war-like operation. In the case of the Matiana, which was heard and decided at the same time, it was held that sailing under convoy is not a war-like operation. In the cases of the Ardgantock and of the Larrinaga, 1921, 2 A.C., p. 241, it was held that if a warship carrying out her naval duties in time of war comes into collision with a merchant vessel without any negligence on the part of those in charge of either the warship or the merchant vessel, the resultant damage to the merchant vessel is a consequence of war-like operations. In the case of the Geelong, 1923, A.C., p, 191, it was held that a merchant vessel carrying war stores from one war base to another war base for the British Government in time of war was engaged upon a war-like operation and therefore in the same position as a war vessel. In the case of the Warilda, 1923, A.C., p. 292, it was held that where a ship engaged on a war-like operation comes into collision with another vessel, the damage done to the former ship is none the less a consequence of a war-like operation because those in charge of that vessel have been guilty of negligence which brings about the collision. There is in addition a decision of the Court of Appeal in the case of the Trevanion, 1928, 2 K.B., p. 534, that if a collision occurs between a vessel engaged in a war-like operation and a merchant vessel owing to negligence in the navigation of both vessels the collision is none the less a consequence of war-like operations within Clause 19 of the Charter-party. Your Lordships were informed that this last decision is under appeal to Your Lordships House; it is not necessary to express any opinion as to its correctness in order to determine the present case, and I do not propose to discuss it in this judgment.
Counsel for the appellants contended that these authorities established that a collision between a vessel engaged in a war-like operation and a...
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