Failure To Take Soundings
| Date | 01 January 1959 |
| Author | E. R. Hardy‐Ivamy |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00520.x |
| Published date | 01 January 1959 |
84
THE MODERN
LAW
REVIEW
VOL.
22
fit
for the purpose for which it was brought into the world which
was, after all, to help plaintiffs injured
in
unexplained accidents.
Great sympathy must be felt with the dissenting judgment of
Morris
L.J.
He felt that this dangerous operation was attended
by risks which were not only foreseeable but which were foreseen.
It
was no defence to show that certain safety precautions were taken
which nearly succeeded. “The conduct of all Holst’s men was
in
issue
’’
(p.
811).
He saw no reason to suppose that a properly
conducted inspection would not have revealed a brick which was
in
danger of falling. In the absence
of
evidence that such an
inspection was in fact carried out with reasonable care he held
that the negligence established by
res
ipsa
loquitur
would stand.
This judgment seems much more in accordance with previous
authority than the others and in particular
it
accords with the
general tenor
of
the judgment in
Moore
v.
Fox
which limited the
defences which could be raised to discharge the burden created by
the rule of
res ipsa loquitur.
As the court experienced no difficulty in holding that
res
ipsa
loquitur
would apply in spite of the fact that there was more than
one defendant the attitude of Morris
L.J.
to the possibility that
the act which caused the brick
to
fall was one
of
collateral negligence
also seemed sound; he evidently required that the point should be
ignored unless specially raised (p.
809).
The point did not fall
for
decision by the other members of the court and they carefully
avoided expressing any opinion.
B.
LILLYWHITE.
FAILURE
TO
TAKE SOUNDINGS
ONE
of
the issues raised in
Riverstone Meat
Co.
Pty.
v.
Lancashire
Shipping
Co.,
Ltd.,l
was whether the shipowner could successfully
rely on the Australian Sea-Carriage of Goods Act,
1924,
Sched., Art.
IV,
r.
2,
which provides: “Neither the carrier nor the ship shall
be responsible for loss
or
damage arising from
(a)
act, neglect
or
default of the master, mariner, pilot
or
the servants of the carrier
in
the navigation
or
management
of
the ship.”?
It
was alleged
in this case by the owners of cargo found to be damaged by sea
water that the damage had been caused by the negligence of the
shipowner in failing to discover by proper soundings the presence
of water in the hold.
McNair
J.
found as a fact that regular soundings had been
taken, and decided the case on another question
of
law, namely,
whether on proof that unseaworthiness had resulted from the
negligence
of
a workman employed by a competent ship repairer
engaged by the shipowner, the result of whose negligence would
1
[1958]
3
W.L.R.
482;
119581
3
All
E.R.
061.
*
This
rule
is
in
identical terms
with
the corresponding
provisions
of
our
own
Carriage
of
Goods
by
Sea Act,
1924.
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