Elder, Dempster & Company v Paterson, Zochonis & Company ; Griffiths Lewis Steam Navigation Company v Paterson, Zochonis & Company

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Cave,Viscount Finlay,Lord Sumner,.
Judgment Date18 March 1924
Judgment citation (vLex)[1924] UKHL J0318-2
Date18 March 1924

[1924] UKHL J0318-2

House of Lords

Viscount Cave.

Viscount Finlay.

Lord Dunedin.

Lord Sumner.

Lord Carson.

Elder Dempster & Co., Ltd., and Others
and
Paterson, Zochonis & Co., Ltd.;
Griffiths Lewis Steam Navigation Co., Ltd.,
and
Paterson, Zochonis & Co., Ltd.

Whereas Counsel were heard as well on Tuesday the 23d, as Thursday the 25th, and Friday the 26th, days of October last, upon the Petition and Appeal of Elder, Dempster and Company, Limited, of 4, St. Mary Axe, in the City of London, African Steamship Company, of 23, Billiter Street, in the City of London, and the British and African Steam Navigation Company, Limited, of Colonial House, Water Street, in the City of Liverpool, 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 15th of December 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 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 Paterson Zochonis and Company, Limited, lodged in answer to the said Appeal; And whereas, by an Order of this House, of the 14th day of February last, it was ordered that the Appeal be re-argued on Monday the 18th day of February last; and whereas the re-argument of the said Appeal was, on the said Monday the 18th day of February last, adjourned to Tuesday the 19th day of February last; Counsel were accordingly called in and were heard to re-argue the said Appeal as well on Tuesday the 19th, as Thursday the 21st, and Friday the 22d, days of February last; and due consideration being 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 15th day of December 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Action be dismissed: 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 Courts below, 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.

Whereas Counsel were heard as well on Tuesday the 23d, as on Thursday the 25th, and Friday the 26th, days of October last, upon the Petition and Appeal of Griffiths Lewis Steam Navigation Company, Limited, whose Registered Office is situate at Merthyr House, James Street, Cardiff, 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 15th of December 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 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 Paterson Zochonis and Company, Limited, lodged in answer to the said Appeal; and whereas, by an Order of this House, of the 14th day of February last, it was ordered that the Appeal be re-argued on Monday the 18th day of February last; and whereas the re-argument of the said Appeal was, on the said Monday the 18th day of February last, adjourned to Tuesday the 19th day of February last; Counsel were accordingly called in and were heard to re-argue the said Appeal as well on Tuesday the 19th, as Thursday the 21st, and Friday the 22d, days of February last; and due consideration being 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 15th day of December 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Action be dismissed: 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 Courts below, 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.

Viscount Cave .

My Lords,

1

The Appellants Elder, Dempster and Company, Limited, who are managers for the Appellants the African Steam Ship Company and the British and African Steam Navigation Company, Limited, run to the West African ports a line of cargo steamers which carry West African produce. These vessels have their holds fitted with 'tween decks, so that goods stored in the lower part of the hold may be relieved from the weight of those stored in the upper part. The Appellants Elder, Dempster and Company, requiring an additional vessel for their West African trade, chartered from the Appellants the Griffiths Lewis Steam Navigation Company, Limited (whom I will refer to as the owners), the steamship "Grelwen," a ship of the Isherwood type containing deep holds but no 'tween decks. The "Grelwen" proceeded to the Sherbro River where she loaded from the Respondents Paterson, Zochonis and Company, Limited, 297 casks or butts of palm oil, which were stowed in two or three tiers at the bottom of holds 2, 3 and 4. She also loaded there from the Respondents and other shippers about 51,800 bags of palm kernels, which were stowed partly over the casks of palm oil in holds 2 and 4 (thus completely filling those holds) and partly in other parts of the ship. The vessel then proceeded to the port of Konakry, where she loaded from the Respondents a further 147 butts of palm oil which were stowed at the bottom of No. 3 hold, and also loaded from the Respondents and others about 11,400 more bags of palm kernels, which were stowed partly over the palm oil in No. 3 hold (thus filling that hold) and partly elsewhere. She also loaded some piassava and other miscellaneous produce which was stowed in the space between the main and shelter decks.

2

When the vessel arrived at Hull, which was her destination, it was found that the casks and butts of palm oil in holds 2, 3 and 4 had been crushed by the palm kernels stored above them, which were very heavy—it was stated in evidence that each cask had to carry 64 bags of palm kernels or nearly 6 tons in weight—and the greater part of the oil was lost or damaged. The casks must have begun to give way immediately after the palm kernels were stowed above them; for the log shows that before the vessel left the Sherbro River she had 3 feet of palm oil in the bilge well of No. 2 hold, and that before she left Konakry the same thing had happened in hold No. 3; but it is possible that the leakage continued after the vessel left port and was intensified by the rolling of the ship.

3

The Respondents accordingly commenced this action against the Appellants, claiming damages for breach of the contract entered into by the bills of lading under which the palm oil was shipped, or alternatively for negligence or breach of duty. The Defendants at the trial attempted to prove that the casks and butts were frail or leaky; but this attempt failed, and it is not now denied that the damage was caused by the altogether unreasonable and excessive weight placed upon the casks. This being so, the contest resolved itself into the question whether the damage was due to bad stowage, or to the fact that the vessel was structurally unfit or unseaworthy for the carriage of the palm oil by reason of the depth of her holds and the absence of 'tween decks. It was not denied that if the damage was due to bad stowage the charterers are protected against liability by the conditions contained in the bills of lading; but if it was due to unseaworthiness, then it was contended (and I think rightly) that the charterers were not protected by any of the conditions of the bills of lading and were liable to make good the damage.

4

The action was tried by Mr. Justice Rowlatt, who held that, while the ship was well found for the purpose of traversing the sea, she was "not a ship, in the way she was prepared for this voyage, proper to carry these casks of palm oil"; and he added—

"This was a ship which was not a 'tween deck ship. It had a deep hold of a depth of 25 feet, and you cannot safely get in at the bottom of that hold casks of palm oil with any sort of a cargo of dead weight or approaching dead weight of gravity on the top of it, and therefore it is a hold which you cannot put those casks in at the bottom, which is the place to put them. It could have been made proper for the stowage of such a cargo by the erection of what has been called a temporary 'tween deck or a platform, by the erection of something (to use perfectly plain and popular language) which would tend to keep the weight of the superincumbent cargo off the bilges of the barrels. That could have been done, and then the hold would have been fit to receive this cargo. That seems to me a fault which goes to the hold. It is not a fault which goes to the stowage as stowage. It is a fault which goes to the appliances for shipping the cargo safety, and makes the ship unseaworthy for the purpose of carrying this cargo on this voyage."

5

He accordingly gave judgment...

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