James Morrison and Company Ltd v Shaw, Savill, and Albion Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1916 |
| Date | 28 July 1916 |
| Court | Court of Appeal |
Court of Appeal
Swinfen Eady, Phillimore, and Bankes, L.JJ.
James Morrison and Co. Limited v. Shaw, Savill, and Albion Company Limited
Leduc and Co. v. Ward and othersDID=ASPMELR 6 Asp. Mar. Law Cas. 290 58 L. T. Rep. 908 20 Q. B. Div. 475
Glynn v. MargetsonDID=ASPMELR 7 Asp. Mar. Law Cas. 148 66 L. T. Rep. 142 (1892) 1 Q. B. 337 69 L. T. Rep. 1 (1893) A. C. 351
Joseph Thorley Limited v. Orchis Steamship Company LimitedDID=ASPMELR 10 Asp. Mar. Law Cas. 431 96 L. T. Rep. 488 (1907) 1 K. B. 660
International Guano - en - Superphospaatwerken v. Robert MacAndrew and Co.DID=ASPMELR 11 Asp. Mar. Law Cas. 271 100 L. T. Rep. 850 (1909) 2 K. B. 360
Davis v. GarrettENR 6 Bing. 716
Parker v. JamesENR 4 Camp. 112
Sleat v. FaggENR 5 B. & Ald. 342
Evans, Sons, and Co. v. Cunard Steamship Company Limited 18 Times L. Rep. 374
Lilley v. DoubledayELR 44 L. T. Rep. 814 7 Q. B. Div. 510
Carriage by direct roule — Liberty to call at intermediate port — Exception of King's enemies
Decision of Bailhache, J. (13 Asp. Mar. Law Cas. 400; 114 L. T. Rep. 746; (1916) 1 K. B. 747) affirmed.
504 MARITIME LAW CASES. CT. OF APP.] JAMES MORRISON & CO. LIM. v. SHAW, SAVILL, & ALBION CO. LIM. [CT. OF APP. Supreme Court of Indicature. COURT Of APPEAL. July 21, 24, 25. and 28, 1916. (Before SWINFEN EADY, PHILLIMORE, and BANKERS, L.JJ.) JAMES MORRISON AND CO. LIMITED v. SHAW, SAVILL, AND ALBION COMPANY LIMITED (a) APPEAL FROM THE KING'S BENCH DIVISION. Carriage by direct route-Liberty to call at intermediate port-Exception of King'e enemies-Deviation to intermediate port not uiually vitited by oumeri' ships-Destruction by enemy vessel-Liability of owners. In Nov. 1914 the defendants, a steamship company, contracted to catry a cargo if wool from New Zraland to London in their steamship the T. The bills of lading provided for " direct service between New Zealand and London," and contained these two clauses: Clause 1. " With liberty on the way to London to call and slay at any intermediate port or ports to discharge or take on board passengers, cargo, coal, or other supplies." Clause 3. " The oieners are to be at hberly to carry the said goods to their port of destination by the above or other steamer or tteameri, ship or ships, either belonging to themselves or to other persons proceeding by any route, and whether directly or indirectly to fueh port, and in so doing to carry the goods beyond their port of destiiuxtion, and to tranship or land and store the goods either on shore or ojloat and reship and forward the same at the owner's expense, but at merchant's risk," The ezceplioti clause excepted the " King's enemies." Besides the wool the T. carried a quantity of frozen meat for delitery at Havre. The tfisiel kept a direct course from New Zealand to London until she reached the Caiquets, when she turned and made for Havre, which was tiot one of the usual ports visited by the dtfendants' steamships. When a few miles from Havre she was sunk by a German submarine. The plaintiffs, who wire indorsees and holders of the bill of lading under which the wool was shipped, brought an action against the defendants claiming damages for breach of contract. Held-, that Uavre was not an intermediate port within the meaning of the bills of lading on the voyage of this vessil from New Zealand to London, and that in making for that port she was deviating from her voyage and the defendants thereby lost the benefiti of the exceptions in the bill of lading. And, further, that, inasmuch as the defendants by deviating were breaking their contract as carriers, they were liable for the loss occasioned by the King's enemies. Decision of Bailhache, J. (13 Asp. Mar. Law Cat. 400; 114 L. T. Rep. 746; (1916) 1 K, B, 747) affirmed. Appeal ftcm the decieion of Bailhache, J. (reported 13 Aep. Mar. Law Oaa. 400; 114 L. T. Rep. 746; (1916) 1 K. B. 747). The plaintiffs were consignees and owners of 158 bales of wool shipped from Wellington, New Zealand, in the steamship Tokomaru, owned by the defendants, the Shaw, Savili, and Albion Company Limited. The Tukomaru was one of the defendant company's regular line from New Zealand to th) United Kingdom. The goods were ('hipped under a bill of lading dated the 19tb Nov. 1914, which was headed: ' Direct service between New Zealand and London." The bill of lading gave the sbipownern extensive liberty to load at any port in New Zealand, and contained these clauses: 1. . . . And bonnd (subject to tbo before-mentioDcd liberties) on fioally leaving New Zaalaod for London and with liberty on the way to London to o"Il aod stay at any intermediate port or porta to discharge or take on board passengers, cargo, coal, or other supplies, with permission, if desired, for the vessel to call at Bio de Janeiro and (or) Montevideo and (or; La Plata. 3. The ownr re are to be at liberty to carry the said goods to their port of destination by the above or other steamer or steamers, ship or shipp, either beloi.ging to themselves or to other persons, proceedinj by any route, and whether directly or indirectly to socb port, and in so dolrig to carry tto goods beyond their port of deetinstion, and to tranship or load and store goods either on shore or afioat and reship and forward the same at the owner's expense, bnt at merchant's risk. The exceptions clause included " act of God " and the " King's enemies." The regular course taken by steamers o7 the defendant line from New Zoaland tu Loudon after leaving Usbant was to proceed direct to the eonth side of the Isle of Wight and thence up the Channel, through the Straits of Dover, to the Thames. On the occasion in question the defendants undertook the carriage of a quantity of frozen meat to Havre. The Tokomaru commenced her voyage and was within seven or eight miles from Havre when she was torpedoed by a German submarine and sank, all her cargo being lost. The plaintiffs thereupon commenced this action claimiog 4013/. agreed damages from the defendants fo;r loss of the cargo. Bailhache, J. held (1) that clause 3 of the bills of lading did not avail the defendants, since it cnly applied when transhipment of the cargo from the T, to another vessel had taken place, and, even if that were not so, the bille of lading would be ambiguous Elderslie Steamshp Company v. Borthwick, 92 L. T. Rep. 274; (la05) A. O. 93); (2) that the provisions of clause 1 did not constitute a defence to the plaintiffa' claim, since, assuming that Havre was an intermediate port within the meaning of the clause, when the route and ports of call of a line of steamships had become stereotyped, mere general words in the owners' own bill of lading giving liberty to call at intermediate ports would not justify their calling at some entirely fresh intermediate port; (3) that after deviation the defendants were only common carriers and were net protected by the common law exception of the King's enemies, since in deviating they were breaking their contract with the plaintiffs and not fulfilling it; and (4) that it was unnecessary for the plaintiffs, in order to substantiate their claim, to show that the natural and probable result of deviating to Havre was a) Reported by EDWARD J.M. CHATLUS, Esq.,Barrister-at-law. MARITIME LAW CASES. 505 CT. OF APP.] JAMES MORRISON & CO. LIM. v. SHAW, SAVILL, & ALBION CO. LIM. [CT. OF APP. that the T. would he sunk by hostile craft. The plaintiffs were therefore entitled to judgment. The defendants appealed. Sir Bnbfrt Finhy. K.G , Sir...
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