Gilroy, Sons & Company v Price & Company
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1892 |
| Date | 21 November 1892 |
| Docket Number | No. 1. |
| Court | House of Lords |
Ld. Chancellor (Herschell), Lord Watson, Ld. Halsbury, Lord Morris, Lord Field.
Ship—Unseaworthiness—Pipe left uncased.—
A cargo of jute was shipped under a bill of lading which exempted the shipowner from liability for ‘any act, neglect, or default whatsoever of pilot, master, or crew in the navigation of the ship in the ordinary course of the voyage.’ The cargo was damaged by sea water entering from the discharge pipe of a water-closet, which had been broken by the pressure of the cargo in rough weather.
In an action at the instance of an onerous indorsee of the bill of lading against the owners, the Second Division found in fact (4) that said pipe was not cased as it should have been to prevent the pressure of cargo on said pipe, and that the want of casing as aforesaid led to the breaking of said pipe and consequent damage of the cargo; (5) that the failure to case said pipe was a default or neglect on the part of the master or crew of said ship in the navigation of the ship committed by them in the ordinary course of said voyage; and found in law ‘that the defenders are not liable for said damage, it being damage for which they are exempted from liability by the terms of said bill of lading.’
Upon a remit from the House of Lords in an appeal, the following additional facts were found—(1) that in the case of vessels carrying jute it is according to usual practice that a pipe such as that in question is cased before the cargo is loaded and the ship starts on her voyage; (2) that after the ship was loaded the pipe in question was not visible or accessible without the removal of part of the cargo; (3) that, in order to get at the pipe for the purpose of casing it, it would have been necessary to remove part of the cargo (which was in bales and could have been removed).
In the appeal, held (rev. the judgment) that the want of the casing when the voyage commenced was a defect which amounted in law to unseaworthiness, and that the owners were not exempted from liability.
(In the Court of Session, Feb. 27, 1891, 18 R. 569.)
Messrs Gilroy, Sons, & Company, Dundee, raised an action in the Sheriff Court of Lanarkshire against Messrs Price & Company, the owners of the ship ‘Tilkhurst,’ to recover damages for injury done by sea-water to a cargo of jute on a voyage from Chittagong to Dundee. The pursuers were onerous indorsees of a bill of lading under which the defenders accepted the jute as shipped in good order and condition, and undertook to deliver it at Dundee in like good order and condition, ‘any act, neglect, or default whatsoever of pilot, master, or crew in the navigation of the ship in the ordinary course of the voyage, and all and every dangers and accidents of the seas and rivers, and of navigation of whatever nature and kind excepted.’
There was no dispute that the cargo had been damaged owing to the breaking off of the discharge-pipe of a water-closet, and the consequent influx of sea-water into the cargo.
The pursuers averred that the ‘vessel when she sailed from Chittagong on 5th December 1888 was not in a seaworthy condition; said pipe was then cracked or otherwise faulty. It had no casing such as is usually put round such pipes, and is necessary for their safety. In consequence, the pipe had been injured by pressure from the cargo, or otherwise got injury, which would not have happened if the casing had been there. The damage to said cargo was caused in consequence of the defective state of the pipe and/or the want of said casing.’
The defenders denied this averment, and stated that the ‘pipe was in perfect order when the vessel left Chittagong, and that the cargo was stowed and secured in such a way that the pipe could receive no injury therefrom or be injured from the inside of the ship,’ and that the breaking of the pipe and consequent damage was caused by the straining of the vessel in a severe gale.
The defenders further founded upon the exception clause in the bill of lading which is quoted above, and they pleaded, inter alia;—(3) In any view, the damage having emerged through one or other of the perils excepted from the contract, the defenders should be assoilzied.
A proof was led.
On 18th July 1890, the Sheriff-substitute (Guthrie) found that the defenders had not proved that their failure to deliver the jute in good order and condition was due to any cause for which they were not responsible, and by a subsequent interlocutor gave judgment for £3407, 11s. 9d., being the amount agreed on as the damage sustained.
The defenders appealed to the Court of Session.
The Second Division pronounced the following interlocutor:—‘Recall the interlocutor appealed against: Find in fact (1) that the defenders were carriers in their ship the “Tilkhurst” of a cargo of jute from Chittagong to Dundee under the bill of lading No. 20 A of process, of which bill of lading the pursuers are the onerous indorsees; (2) that the said cargo was damaged in the course of said voyage by sea-water, which obtained access to said cargo by means of a hole in the side of the ship to which was attached or connected the discharge-pipe of the forward water-closet on the port side, which pipe was broken in the course of the voyage; (3) that said pipe was broken by pressure of the cargo thereon; (4) that said pipe was not cased as it should have been to prevent the pressure of cargo on said pipe, and that the want of casing as aforesaid led to the breaking of said pipe, and consequent damage of the cargo; (5) that the failure to case said pipe was a default or neglect on the part of the master or crew of said ship in the navigation of the ship committed by them in the ordinary course of said voyage: And find in law that the defenders are not liable for said damage, it being damage for which they are exempted from liability by the terms of said bill of lading: Therefore assoilzie the defenders from the conclusion of the action: Find no expenses due to or by either party, and decern.’
The pursuers appealed.
The House, considering the findings in fact not satisfactory, made a remit to the Court for further findings upon the evidence before them.
The following additional findings were returned by an interlocutor dated 31st May 1892:—
‘(1) That in the case of vessels carrying jute it is according to usual practice that a pipe such as that in question is cased before the cargo is loaded and the ship starts on her voyage.
‘(2) That after the “Tilkhurst” was loaded the pipe in question was not visible or accessible without the removal of part of the cargo.
‘(3) That, in order to get at the pipe for the purpose of casing it, it would have been necessary to remove part of the cargo (which was in bales and could have been removed), but that the evidence in the cause does not shew what amount of the cargo required to be removed for that purpose.’
At delivering judgment,—
Lord Chancellor.—The pursuers in this action are the owners or part owners of a cargo of jute carried on board the ship ‘Tilkhurst,’ and they seek to recover against the owners of...
To continue reading
Request your trial
- The Owners of the cargo lately laden on board the ship or vessel MV "Viva Ocean" v The Owners or demise charterers of the ship or vessel MV "Viva Ocean"
-
Alize 1954 and CMA CGM SA v Allianz Elementar Versicherungs AG and 16 Ors
...Co (1877) 3 App Cas 72 (water entered through a porthole which had not been properly fastened, and damaged a cargo of wheat); Gilroy Sons & Co v W R Price & Co [1893] AC 56 (the master negligently failed to case a water-closet pipe before the commencement of the voyage and the pipe burst d......
-
Lamport & Holt Lines Ltd v Coubro & Scrutton (M. & I.) Ltd (Raphael)
...an exception which in terms covers negligence does not protect the shipowner where the negligence has led to breach of the warranty: Gilroy v. Price, (1893) Appeal Gases, 56. 11 Similarly in Canada Steamship, Lord Morton, in applying his third test, considered three well defined "other grou......
- Huddart Parker Ltd v Coiter