Hebridean Coast, The, Owners of Steamship Lord Citrine v Owners of Motorship or Vessel Hebridean Coast

JurisdictionEngland & Wales
JudgeLord Reid,Lord Morton of Henryton,Lord Tucker,Lord Morris of Borth-y-Gest
Judgment Date21 December 1960
Judgment citation (vLex)[1960] UKHL J1221-3
Date21 December 1960
CourtHouse of Lords

[1960] UKHL J1221-3

House of Lords

Lord Reid

Lord Morton of Henryton

Lord Tucker

Lord Morris of Borth-y-Gest

Owners of Steamship "Lord Citrine"
and
Owners of Motorship or Vessel "Hebridean Coast" (The "Hebridean Coast")

Upon Report from the Appellate Committee, to whom was referred the Cause Owners of Steamship "Lord Citrine" against Owners of Motorship or Vessel "Hebridean Coast" (The "Hebridean Coast"), that the Committee had heard Counsel, as well on Wednesday the 16th, as on Thursday the 17th, days of November last, upon the Petition and Appeal of the Owners of the Steamship "Lord Citrine", praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th of March 1960, might be reviewed before Her Majesty the Queen, in Her 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 Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Owners of the Motorship or Vessel "Hebridean Coast", 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 Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 10th day of March 1960, 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 Appellants 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.

Lord Reid

My Lords,

1

Nearly nine years ago, on 23rd December, 1951, there was a minor collision off Cromer between the "Lord Citrine" and the "Hebridean Coast". The owners of the "Hebridean Coast" admitted liability on 21st March, 1952, and since then the only question at issue between the parties has been the amount of damages due to the Appellants. But the Appellants' Statement of Damages, amounting in all to £5,241, was not filed until 14th June, 1956, and the case only now comes before your Lordships for final decision.

2

The "Lord Citrine" was owned by the Central Electricity Authority and was one of a number of vessels used by them to bring coal to London from various ports on the north-east coast. When the collision occurred she was on a voyage in ballast from London to Immingham. After the collision she was able to proceed to Immingham and, after some temporary repairs, to take on her cargo of coal and carry it to London. Thereafter she was out of service for a time undergoing permanent repairs. The largest item in the Appellants' claim was:

"14. Loss by detention: 10 a.m. 31/12/51 to 7 a.m. 14/1/52 13 days 21 hours, loss of use of 'Lord Citrine' for carriage of coal and charter of equivalent shipping space £2,451 13s. 0d."

3

All the other items were agreed or decided by the Admiralty Registrar and this item has now been modified, the claim now being for £1,525 for detention for 11 1/2 days.

4

The point at issue between the parties is largely a question of fact. The Admiralty Registrar made careful and elaborate findings of fact but on some crucial points these lack precision. I do not blame him because it would appear that the issues were not presented to him with precision.

5

I shall first set out as briefly as I can the facts which are not in dispute. The Central Electricity Authority and the National Coal Board agreed tonnage programmes for each summer and winter period. About a quarter of the tonnage due to be brought to London was brought by sea. During the winter period November-April, 1951–2, the Coal Board only supplied about 87 per cent, of the agreed tonnage. About 1,250,000 tons should have been brought by sea during this period and it would seem that about 87 per cent. of that amount was in fact brought by sea. It is not disputed that all the coal available for shipment was in fact shipped during the period.

6

The Authority's own ships did not and could not carry more than about half of that coal, the rest was carried in chartered vessels. Certain vessels were chartered on ten-year charter. Others were employed on short charter or spot charter as required. The "Lord Citrine's" voyages lasted on the average 8 1/2 days and her average cargo was 4,171 tons. If she had not been under repair she would not have been idle but would have been carrying coal, but we do not know to what port she would have been sent or what particular consignment of coal she would have carried during the repair period.

7

There is no evidence or finding that the loss of the "Lord Citrine's" services during the repair period in any way dislocated the Authority's programme or that any particular steps were taken at the time to make good that loss of her services. The Registrar found that all the Authority's own ships were "regularly employed" and that none was "idle during the detention period". He further found that "no specific vessel can be pointed to as having taken the place of the 'Lord Citrine' during the 11 1/2 days' detention of that "vessel". By that he clearly means no specific vessel either of the Authority's fleet or of the chartered ships. The Appellants' argument before him was that the general circumstances were such as to indicate that the loss of one of their ships resulted in their having to use chartered tonnage more than they would otherwise have done". Their claim was based on the cost to them of the "charter of equivalent shipping space", and the finding of the Registrar is:

"I do not think that if the Plaintiffs have to show they chartered other tonnage to replace the 'Lord Citrine' they have succeeded in doing so."

8

But he added:

"It seems to me quite likely that they did in fact do so",

9

though he does not explain why he thought this quite likely.

10

The argument which I have quoted from the Registrar's Reasons was repeated before your Lordships. If I substitute the word "prove" for "indicate", the argument might be valid if supported by the facts. The Appellants attached great importance to the Owners of Steamship Strathfillan v. Owners of Steamship Ikala. The Ikala [1929] A.C. 196. I shall quote two passages. Lord Sumner said (at p. 205):

"It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay."

11

And Lord Warrington of Clyffe said (at p. 211):

"Though there was no sufficient "positive evidence of any chartering effected for the purpose of supplying the tonnage lost by the detention of the 'Strathfillan', the circumstances proved might have been such that the tribunal would have been justified in drawing the inference that a proportion of the chartered tonnage did in fact supply the tonnage lost by the detention."

12

Proof may be by direct evidence or by inference, and the standard of proof in civil cases is that the fact to be proved must be made to appear more probable than not. The essential steps in the Appellants' argument are these. All the coal available during the winter period was in fact brought to London. This must have included the coal which the "Lord Citrine" would have carried if there had been no detention for repairs. That coal must have been carried either in the Authority's vessels or in chartered vessels. It could not have been carried in the Authority's vessels because they were already being used to their full capacity. Therefore it must have been carried in chartered vessels. It is more expensive to carry coal in chartered vessels and the claim is for the difference in cost between carrying the coal in chartered vessels and carrying it in the Authority's vessels.

13

If any one of the links in this chain is faulty the argument breaks down, and I need only consider the statement that all the Authority's vessels were already being used to their full capacity. The amount which the "Lord Citrine" would have carried during the detention period is a very small proportion of the total carried during the remainder of the winter period by the Authority's vessels—almost certainly less than 1 per cent. Do the findings then show that so small an extra burden could not be or probably was not carried by them? The Registrar's findings are that all the Authority's own ships and those on ten-year charter were "regularly employed over the years" and that "none of the Authority's vessels except the 'Lord Citrine' was idle during the detention period". I do not regard a finding that vessels were regularly employed over the years as excluding the possibility or even the likelihood that they could have carried 1 per cent. more than they did, and finding that none was idle during the detention period is of little weight. All we know is—if we do know it—that all the available coal was brought during the winter period. There is nothing to show that the coal which the "Lord Citrine" would have carried was brought at any particular time, and that is not surprising because no one knows what coal she would have carried or from what port. I would also refer to and adopt what Willmer and Devlin, L.JJ. said on this matter in the Court of Appeal.

14

Counsel also referred your Lordships to the evidence. They were quite entitled to do so because the...

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