Gosse Millard v Canadian Government Merchant Marine; American Can Company v Canadian Government Merchant Marine
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Sumner,. |
| Judgment Date | 16 November 1928 |
| Judgment citation (vLex) | [1928] UKHL J1116-1 |
| Date | 16 November 1928 |
| Court | House of Lords |
[1928] UKHL J1116-1
Lord Chancellor.
Viscount Sumner.
Lord Atkin.
House of Lords
After hearing Counsel, as well on Monday the 23d, as on Tuesday the 24th and Thursday the 26th, days of July last, upon the Petition and Appeal of Gosse Millerd, Limited, of Vancouver, British Columbia, 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 25th of November 1927, 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 Canadian Government Merchant Marine, Limited, 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 25th day of November 1927, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Wright, of the 23d day of May 1927, thereby in part set aside, be, and the same is hereby Restored: 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 Court of Appeal, 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.
My Lords,
This is an action brought by the Appellants against the Respondents, claiming damages for injury done to their tin-plates on a voyage from Swansea to Vancouver in a ship belonging to the Respondents and known as the "Canadian Highlander."
At the trial there was a great conflict as to the cause of the damage to the tin-plates; but on the hearing before the Court of Appeal and at your Lordships' bar, both sides accepted the findings of fact of the learned trial judge; and it is therefore convenient to state these findings at once in order to formulate the questions of law which are raised in the Appeal.
Under a Bill of Lading dated the 6th February, 1925, 5,808 boxes of tin-plates belonging to the Appellants were shipped at Swansea for carriage to Vancouver by the "Canadian Highlander." The whole of these tin-plates were stowed in No. 5 Lower Hold, which is the aftermost hold in the ship. After loading these tin-plates the "Canadian Highlander" proceeded to Liverpool in order to discharge inward cargo and to load further outward cargo. On the 9th February certain lumber, forming part of the inward cargo, was unloaded from the No. 5 'tween decks at Liverpool. During the discharge of this lumber through the hatchway of No. 5 Hold there was heavy rain. On the 10th February, whilst undocking, the "Canadian Highlander" collided with a pier and damaged her stern. As a result, it became necessary to dry-dock the vessel and to do extensive repairs. During the course of the repairs it was discovered that the tail shaft liner was cracked and it became necessary to remove the tail shaft in order that a new liner might be fitted to it; for this purpose it was necessary to shift some of the cargo in the No. 4 Hold and to remove the tail shaft liner through a door leading from the tunnel recess into No. 5 Hold. The repairs continued until the 4th April, when the "Canadian Highlander" was undocked and proceeded to Glasgow, and thence to Vancouver, where she arrived on the 17th May. On her arrival it was found that the Appellants' tin-plates had sustained serious damage by fresh water. The learned judge came to the conclusion that during the vessel's stay in dry dock there was carelessness in moving and replacing the tarpaulins which were supposed to cover the No. 5 Hold when work was being done there, and that in consequence rain got into the No. 5 Hold and did the damage; and that probably there was also carelessness with regard to the use of the tarpaulins on the 9th February when the lumber was being unloaded and that on that occasion also some rain was admitted. The learned judge seems to have acquitted the ship's officers of any lack of care, and there was no evidence to enable him to decide who were the persons responsible for the negligence which occasioned the damage. From time to time the hold seems to have been entered by the stevedores' men, by members of the crew, by surveyors, and by the men employed by the repairers; andit is easy to understand that one or more of these persons may not have been sufficiently scrupulous in replacing the tarpaulins on their entrance to, or exit from, the hold, or in preventing the water which had accumulated on the tarpaulins from finding its way into the hold.
The Appellants relied on Rule 2 of Article III of the rules relating to bills of lading contained in the schedule of the Carriage of Goods at Sea Act, 1924, which enacts as follows:
"Subject to the provisions of Article IV, the Carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried."
It was not suggested on either side that there were any provisions in the Bill of Lading material to be considered apart from the articles contained in the Statute; but the Respondents relied upon rule 2 a of Article IV; this rule provides that:
"Neither the Carrier nor the Ship shall be responsible for loss or damage arising or resulting from the act, neglect or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship."
From the statement of the facts as found by the learned judge it could not be disputed that the Respondents had failed properly and carefully to carry, keep and care for the goods carried. But the Respondents pointed out that the obligation imposed upon them was expressly made subject to the provisions of Article IV, and they claimed that the loss or damage complained of resulted from the act, neglect or default of their servants in the management of the ship. The argument at the bar turned mainly upon the meaning to be placed upon the expression "management of the ship" in that rule. The words in question first appear in an English Statute in the Act now being considered; but nevertheless they have a long judicial history in this country. The same words are to be found in the well-known Harter Act of the United States, and as a consequence they have often been incorporated in Bills of Lading which have been the subject of judicial consideration in the courts in this country. I am unable to find any reason for supposing that the words as used by the Legislature in the Act of 1924 have any different meaning to that which has been judicially assigned to them when used in contracts for the carriage of goods by sea before that date; and I think that the decisions which have already been given are sufficient to determine the meaning to be put upon them in the Statute now under discussion.
In the year 1893, in the case of the " Ferro" ( 1893, P., p. 38) certain oranges had been damaged by the negligent stowage of the stevedore. It was held by the Divisional Court that the negligent stowage of the cargo was not neglect or default in the management of the ship. Mr. Justice Gorell Barnes says
"I think it is desirable also to express the view which I hold about the question turning on the construction of the words 'management of the ship.' I am not satisfied that they go much, if at all, beyond the word navigation."
"It would be an improper use of language to include all stowage in the term 'mismanagement of the ship.' It is not difficult to understand why the word 'management' was introduced, because in as much as navigation is defined as something affecting the safe sailing of the ship. … it is easy to see that there might be things which it would be impossible to guard against connected with the ship itself and the management of the ship which would not fallunder navigation. Removal of the hatches for the sake of ventilation, for example, might be management of the ship, but would have nothing to do with the navigation."
In the case of the "Glenochil" ( 1896, P., p. 10) the same two learned judges, sitting as a Divisional Court, held that the words did protect the shipowner for damage done by pumping water into the ballast tank in order to stiffen the ship without ascertaining that a pipe had become broken, and thereby let the water into the cargo. Mr. Justice Gorell Barnes says
"There will be found a strong and marked contrast in the provisions which deal with the care of the cargo and those which deal with the management of the ship herself: and I think that where the act done in the management of the ship is one which is necessarily done in the proper handling of the vessel, though in the particular case the handling is not properly done, but is done for the safety of the ship herself, and is not primarily done at all in connection with the cargo, that must be a matter which falls within the words 'management of the vessel.'"
"It seems to me clear that the word 'management' goes somewhat beyond—perhaps not much beyond—navigation, but far enough to take in this very class of acts which do not affect the sailing or movements of the vessel, but do affect the vessel herself."
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