Commonwealth Shipping Representative v P. & O. Branch Service
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Finlay (read by Lord Atkinson),Lord Dunedin,Lord Atkinson,Lord Sumner |
| Judgment Date | 14 December 1922 |
| Judgment citation (vLex) | [1922] UKHL J1214-1 |
| Date | 14 December 1922 |
| Court | House of Lords |
[1922] UKHL J1214-1
Lord Chancellor.
Viscount Finlay.
Lord Dunedin.
Lord Atkinson.
Lord Sumner.
House of Lords
After hearing Counsel on Friday, the 17th day of November last, upon the Petition and Appeal of the Commonwealth Shipping Representative, representing the Government of the Commonwealth of Australia, of Australia House, Strand, in the County of London, 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 6th of March 1922, 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 Petitioner 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 Peninsular and Oriental Branch Service, 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 6th day of March 1922, 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 Appellant 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 appeal raises once more a question which has already been several times debated in this House, viz., the question of the meaning to be given to the expression "all consequences of "hostilities or warlike operations" when contained in a policy of marine insurance.
The Respondents were the owners of a steamship called the "Geelong" which, in the year 1915, was requisitioned by the Government of the Commonwealth of Australia for transport purposes in connection with the War. The requisition was made upon the terms of the well known form of charter known as T. 99, which included a provision that the Commonwealth Government should accept full war risks,—an expression which was understood and agreed by all parties to make the Government responsible for such risks of war as would be excluded from an ordinary marine policy by the usual F. C. and S. warranty, including in that warranty all consequences of hostilities or warlike operations.
On the 1st January, 1916, the "Geelong," which was not at the moment required for the transport of war material, was carrying a general cargo on Government account, and was bound from Port Said to Gibraltar for orders; and at about half-past seven in the evening of that day, when she was a few miles off Alexandria and was sailing (in accordance with the Admiralty instructions) at best speed without showing any lights, she was run into by another steamship called the "Bonvilston" which was also sailing at full speed without lights, and was sunk. The "Bonvilston" was under requisition by the British Government, and at the time of the collision was carrying ambulance wagons and other Government stores from Mudros to Alexandria. There was no negligence on the part of either vessel.
The Respondents having made a claim against the Appellant on the ground that the loss of the vessel was due to a war risk, and their claim being disputed, the matter was referred to the arbitration of Mr. Raeburn, K.C., who made his award in the form of a special case for the opinion of the Court. By that case he found the above facts, his findings as to the purpose for which the "Bonvilston" was being used at the time of the collision being in the following terms:—
"The 'Bonvilston' at the time of the collision was proceeding from Mudros to Alexandria. She was under requisition by the British Government and was carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria). In accordance with the orders of the Naval Authorities given for the purpose of minimising the risk of submarine attack she was steaming at her best speed and was showing no lights."
Upon the above facts the Arbitrator found that the loss of the "Geelong" was caused by a marine peril and not by a war peril, but submitted the question whether he was right in law in so doing, for the opinion of the Court. The case was argued before Mr. Justice Bailhache, who held that the "Bonvilston," being engaged in carrying ambulance wagons and other Government stores from one war base to another war base, was engaged in a warlike operation, and accordingly gave judgment for the Respondents. Upon the matter being taken to the Court of Appeal, that Court (consisting of the Master of the Rolls and Lords Justices Warrington and Scrutton) unanimously affirmed the decision of the learned Judge, but upon somewhat varying grounds. Lord Justice Warrington, while declining to express a definite opinion as to whether upon the facts found by the Arbitrator he would have come to the same conclusion as Mr. Justice Bailhache, held that the Court was entitled to take notice of the historical fact that Mudros was the advance base for the British operations in the Gallipoli Peninsula, and that the collision happened in the middle of the operations connected with the evacuation of the Peninsula; and from these facts he inferred that the "Bonvilston" was at the time of the collision carrying warlike equipment from Mudros in connection with the evacuation, and for that reason was engaged in a warlike operation. On the other hand Lord Justice Scrutton, while holding that the Court was at liberty to take from the "St. Oswald" case ( British and Foreign S.S. Company v. The King, L.R. 1918, 2 K.B., p. 79) the fact that Gallipoli was being evacuated on the 31st December and the 1st January and to conclude that the voyage of the "Bonvilston" from Mudros to Egypt on the 1st of January was part of that warlike operation, was prepared, apart from that circumstance, to hold that carrying ambulance wagons and Government stores from one war base to another in time of war, was a warlike operation. The Master of the Rolls, while he would have preferred to have from the Arbitrator a more complete finding as to what the "Bonvilston" was doing at the time of the collision, did not dissent from the opinions of his colleagues. Thereupon the present appeal was brought.
My Lords, I am inclined to think that, in taking notice of the dates of the evacuation of Suvla Bay and Helles in the Gallipoli Peninsula, and in inferring from those dates (without any finding by the Arbitrator) that the "Bonvilston" was taking part in that evacuation, the Court of Appeal carried too far the doctrine of judicial notice. There is no doubt that judicial notice may be taken of the existence of a state of war between this country and another ( see per Lord Eldon in Dolder v. Lord Huntingfield, 1805, 11 Ves., at p. 292, and per Lord Ellenborough in R. v. De Berenger, 1814, 3 M. & S. at p. 69); and it was said in Taylor v. Barclay (1828, 2 Simons 213 at p. 220) that "it is the duty of the Judge in every Court to take notice of public matters which affect the Government of the country." Further, where it is important to ascertain ancient facts of a public nature, the law permits historical works to be referred to (per Lord Halsbury in Read v. Bishop of Lincoln, L.R. 1892 A.C. at p. 653). But I know of no authority for the proposition that the date of a particular event in a modern war, such as an engagement or a withdrawal, however important in itself, may be stated without proof, and an inference based upon it; and in any case I do not understand how such an inference can be drawn for the first time in a Court of Appeal, when the opportunity of rebutting the inference has passed by.
I, therefore, put on one side this element in the decision of the Court of Appeal, and proceed to consider the effect of the findings in the award; and first it is necessary to determine what those findings mean. Your Lordships were invited by counsel for the Appellant to proceed on the footing that the ambulance wagons and other Government stores referred to in the award were being transported by the "Bonvilston" for some perfectly peaceful purpose, that they may never have been landed at Mudros at all, and that they may have been intended for use in connection with some civil hospital at Alexandria, or for some other non-combatant purpose. It appears to me that any such assumption would do less than justice to the language of the award. When the Arbitrator found that the "Bonvilston" was under requisition by the British Government, and was "carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria)," he must assuredly have intended the Court to understand that the cargo consisted of war material of the above character which was being transported from one war base—that is to say, from a point behind a fighting front from which the forces engaged on that front might be fed with men, munitions and supplies—to another war base for war purposes. At all events I so read the finding, and am satisfied that if anything else had been intended, very different language would have been used. This, then, was the duty in which the "Bonvilston" was engaged at the time of the collision; and the question to be determined is whether this was a warlike operation within the meaning of the warranty.
My Lords, I do not propose to attempt to define the expression "warlike operations." It is composed of ordinary English words in common use, and to define them by other...
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