Hebridean Coast, The, Owners of Steamship Lord Citrine v Owners of Motorship or Vessel Hebridean Coast
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE WILLMER,LORD JUSTICE DEVLIN |
| Judgment Date | 10 March 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0310-1 |
| Court | Court of Appeal |
| Date | 10 March 1960 |
[1960] EWCA Civ J0310-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Willmer and
Lord Justice Devlin
SIR DAVID SCOTT CAIRNS, Q.C., Mr. WALDO PORGES, Q.C. and Mr. R.F. STONE (instructed by Messrs. Sinclair, Roche & Temperley, Agents for Messrs. Botterell, Roche & Temperley, Newcastle) appeared on behalf of the Appellants (Plaintiffs).
Mr. K.S. CARPMAEL, Q.C. and Mr. PETER BUCKNILL (instructed by Messrs. Middleton, Lewis & Co., Agents for Messrs. Middleton & Co., Sunderland) appeared on behalf of the Respondents (Defendants).
This is an appeal by the Plaintiffs from a decision of the President dated 19th June, 1959, on a motion in objection to the Registrar's decision dated 5th December, 1958, as to damages by collision. The appeal concerns only one of a number of items claimed, namely, Item 14, a claim for damages quantified by the Registrar at £2,032 and reduced by the President to £457. 12s. 9d. in respect of a period of 11-½ days in January, 1952, during which the Plaintiffs' vessel the "Lord Citrine" was detained for repairs rendered necessary by a collision for which the Defendants have admitted liability. The Appellants seek to restore the decision of the Registrar.
The "Lord Citrine" is a collier owned by the Central Electricity Generating Board, the successor of the Central Electricity Authority, the general duties and powers of which are controlled by the Electricity Act, 1947, of which section 36 subsection 1 reads as follows: "It shall be the duty of the Central Authority so to exercise and perform their functions under this Act, including their functions in relation to Area Boards, as to secure that the combined revenues of the Central Authority and all the Area Boards taken together are not less than sufficient to meet their combined outgoings properly chargeable to revenue account taking one year with another".
The statement of damages sustained by the Plaintiffs contained some 22 items, of which all the material ones were agreed at figures shown in the record save and except the item relating to detention. These agreed items covered not only the cost of repairs but the cost of running the ship during the period of detention, and the dispute between the parties was as to the basis upon which the claim for detention should be treated.
The Defendants contended that since the Authority was not a trading body interest on capital value was the right basis, and the Plaintiffs that their claim was not so limited.
By a letter dated 14th June, 1954, the claim was put in this way: "Item 14. As we have already said, we are unable to agree with your view that the British Electricity Authority is not a trading body, and that the 'Lord Citrine' is not to be regarded as a profit-earning ship. However, even if you are right as to this, it is quite clear in our view that interest on capital value is not the proper basis for the allowance for loss of use but that our clients must then be entitled to recover the cost of chartering other shipping space to carry the coal which the 'Lord Citrine' would have carried if she had not had to be stopped for repairs.…Since it was, as stated above, essential that all the coal allocated should be carried, as this was in fact done, and as the Authority's own ships could not have done it in any case, the lay-up of the 'Lord Citrine' necessarily of course involved extra chartering for which they have had to pay. Although the exact replacement ships cannot be identified in the circumstances, it seems to us that the amount of our clients' loss on a chartering basis can doubtless be arrived at roughly by calculating what quantity of coal she would have carried during the detention period from the average cargoes on the six voyages (of which you have particulars) and from the times occupied by those voyages (of which you also have particulars) and ascertaining the cost of hiring other ships to carry that quantity…."
The practice of the electricity Authority was to maintain a fleet of vessels to carry coal for the purposes of generating electricity. In so far as their own vessels were insufficient, the authority chartered other vessels, some on long, some on short, and some on spot, charter. During the period of six months covered by the programme for the winter period 1951-52 all the vessels owned by the Authority were employed. While the "Lord Citrine" was being detained, therefore, the Plaintiffs contend that all the coal which she would have carried was carried in chartered vessels and the freight payable by the Authority under prevailing Chamber of Shipping rates was the test by which damages for detention should be measured.
The facts found by the Registrar and confirmed by the President are as follows: For the year in question the National Coal Board provided only 87 per cent, of the quota allocated to the Plaintiffs. The quantity short-delivered was no less than 1-1/4 million tons. Of the 87 per cent, delivered, 25 per cent, of the coal was sea-borne. Of that fraction 45 per cent, to 50 per cent, was carried in the Plaintiffs' own colliers, whereas 50-55 per cent, was carried in chartered tonnage. The Plaintiffs' own ships could not have carried the whole of the sea-borne coal actually received. There were ten large chartered vessels on 10-year charter from June, 1949, all of which were regularly employed over the years, while certain other vessels were employed on short charter and others on spot charter, as required. None of the Plaintiffs' own vessels was idle during the detention period, and if the "Lord Citrine" had not been under repair she would not have been idle. At no time during the 26 winter weeks of 1951-52 were the Plaintiffs not chartering vessels additional to the long-term chartered vessels; but no specific vessel can be pointed to as having taken the place of the "Lord Citrine" during the detention period in order to carry the coal which she would have carried had she not been laid up for repairs. It was, of course, cheaper for the Plaintiffs to carry coal in their own vessels, because all chartered vessels, whether on long-term, short-term, or spot charter, were entitled to be paid so much per ton of coal carried. There was no question of the Plaintiffs vessels to someone else. While it was customary to build up stocks at each station during the 26 summer weeks, and to run down stocks in the period from November to April, the situation in the winter period 1951-52 was normal, and there was no under-stocking or over-stocking at all.
The defendants have sought to criticize these findings of fact upon the footing that the witnesses who spoke to them were not in a position to know and indeed admitted that the details of the chartering and the working out of the programme for the winter 1951-52 were not known to them. This Court should, however, in my opinion deal with the appeal on the basis of the facts as found and not on some other basis which may or may not be more favourable to the Defendants.
The Registrar held, and the President confirmed, that the Plaintiffs had failed to show that they had in fact chartered other tonnage to replace the "Lord Citrine".
The amount of coal involved which would have been carried by the "Lord Citrine" during the detention period, about 5,000 tons, was relatively small in proportion to the amount involved in the winter programme, about 5,000,000 tons, and the Plaintiffs were unable to show that they chartered any other tonnage to replace the "Lord Citrine" during the period. I do not see any ground for interfering with the concurrent findings of the President and the Registrar to this effect. The Plaintiffs, therefore, fail to prove as an item of special damage that they have had to charter other space to replace the "Lord Citrine".
The contention of the Plaintiffs was, however, that although they could not point to exact replacement of ships yet it must necessarily follow that the "Lord Citrine's" coal was carried on such hired ships and damages should be measured on such basis. The Plaintiffs contend that, even if they cannot establish replacement, hire charges are the appropriate basis for fixing general damages having regard to the operations of the Authority which I have described. They say that they are for the purposes of this argument a commercial organization and they ought to be treated in the same way as if they were a profit-making concern. They rely in particular on The Ikala (1929 Appeal Cases, page 196), a case which arose from a collision involving the plaintiff's vessel in 13 days' detention and had a long and chequered career, culminating in the Court of Appeal (see Lloyd's List Reports, 1929, page 19). They sought to bring themselves within the language of Lord Warrington of Clyffe at page 211, when he said: "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".
The learned President dealt with this submissions as follows: "In my opinion having regard to the evidence it is not legitimate to infer that the coal which might otherwise have been carried by the 'Lord Citrine' during the 11-½ days was carried by chartered tonnage; or, if so, that it was necessary to do so. Certainly there is no evidence that there was any special chartering for the purpose; or that such 'spot' charters as were made for special delivers had any connection with the detention of the 'Lord Citrine'". In my...
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