Leesh River Tea Company Ltd v British India S.N. Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE SALMON |
| Judgment Date | 15 July 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0715-3 |
| Date | 15 July 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J0715-3
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
(from: Mr. Justice McNair - London)
Mr. J.F. DONALDSON, Q.C. and Mr. J.S. WORDIE (instructed by Messrs, Thomas Cooper & Co.) appeared on behalf of the Appellants (Defendants).
Mr. R.A. MacCRINDLE, Q.C. and Mr. J.F. WILLMER (instructed by Messrs. Clyde & Co.) appeared on behalf of the Respondents (Plaintiffs).
By the judgment of Mr. Justice McNair the plaintiffs, who are now respondents to this appeal, have recovered £1,835. 8s. 2d. damages in respect of a consignment of chests of tea which were damaged by sea-water in the course of a voyage in the defendants' vessel "Chyebassa" from Calcutta, where the goods were loaded, to Hull, where they were discharged.
That the goods were so damaged and the extent of the loss was agreed. The plaintiffs claimed as holders of hills of lading dated 15th October, 1959, which incorporated the Indian Carriage of Goods by Sea Act, 1925, and the Rules scheduled thereto and the shipowners have relied on some of the Rules to give them immunity from liability for the loss.
When the vessel left Calcutta the goods were stowed in No. 2 lower hold and no complaint is made against the ship at that stage. The goods were properly and carefully loaded and stowed and due diligence had been exercised to make the ship seaworthy, as in fact it was. The trouble arose later. The vessel called at Port Sudan, as it was entitled to do, to discharge some cargo and load other cargo in its place. This work of discharge and loading was carried out by the Red Sea Stevedore Co. Ltd., who were the agents of the defendants for the purpose. As it chanced the discharge of the cargo in that area of No. 2 hold exposed a small plate roughly 4 inches by 3 inches affixed by four bolts. This was a cover which could be removed to give access to and enable inspection or repair of a storm valve controlling a sanitary pipe leading from the Chief Engineer's cabin. The plate was made of brass and attracted the attention of one or more of the stevedores who wilfully removed it and stole it in the course of the discharge or the loading, more probably the latter as the incoming cargo could be immediately placed over the hole to conceal it and the hole was in fact blocked in by the cargo of cottonseed loaded at Port Sudan.
The removal of the cover plate left a condition in which sea-water could enter the hold with the rolling of the vessel asthe cavity was, the judge held, a few feet above the loadline and more certainly might the sea enter in bad weather. The condition rendered the ship unseaworthy from the time the plate was removed and it continued to be so throughout the remainder of the voyage to Hull.
The ship in fact encountered heavy weather between the 6th and 8th December. It is accepted that sea-water entered through the hole from which the plate had been wilfully removed and so damaged the respondents' cargo but precisely when this occurred in the course of the voyage was not agreed and it has not been sought to attribute the damage solely to the period of bad weather.
The defendants, who now appeal against Mr. Justice McNair's judgment holding them liable, recognise that they failed to deliver the goods in question in the same good order as they received them and that they are liable for the damage sustained unless they can bring themselves within the Rules. Reference throughout the case has been to the English version as it is the same in all material respects as the Rules in the Indian Act.
The following relevant extracts are cited:
"Article III - Responsibilities and Liabilities. 1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy…. 2. 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….
"Article IV - Rights and Immunities. 1. Neither the carrier nor the ship shall be liable for loss and damage arising from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy….in accordance with the provisions of paragraph 1 of Article III…. 2. Neither the ship nor the carrier shall be responsible for loss and damage arising or resulting from (a) 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…. (c) Perils,dangers and accidents of the sea or other navigable waters…. (q) Any other cause arising without the actual fault or privity of the carrier, or" (to be read as "and") "without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage".
In applying the Rules it has been stressed in several opinions in the House of Lords that it is desirable to seek uniformity of interpretation in the many jurisdictions in which they may arise for consideration.
In Stag Line Limited v. Foscolo, Mango & Co. Ltd. (1932 Appeal Cases page 328) Lord Atkin said: "For the purpose of uniformity, it is, therefore, important that the courts should apply themselves to the consideration only of the words used without any predilection for the former law, always preserving the right to say that words used in the English language which have already in the particular context received judicial interpretation may be presumed to be used in the sense already judicially imputed to them". In the same case Lord Macmillan said: "As these rules must come under the consideration of foreign courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation".
These are the specific rules relied on by the appellants:
(1) Article IV (1). On the facts of this case this Rule cannot avail the shipowners. They fulfilled their obligation under Article III "before and at the beginning of the voyage" and no loss or damage arose from unseaworthiness on leaving Calcutta at the beginning of the voyage. Due diligence was also exercised by the ship's officers and crew at Port Sudan but no argument was sustained before us that the learned judge shouldhave applied the rule, so as to give the shipowners immunity under it in respect of the present claims. Such argument as there was, I understood, was withdrawn and abandoned. The judgment stands on this point.
(2) Article IV (2) (a). It was argued that if the stevedore who removed the cover was to be held to be a servant of the shipowner then what he was doing was an act, neglect or default "in the management of the ship". No authority cited lent any support to this contention. It would have required but little more boldness to have submitted that it was "in the navigation of the ship". Again the learned judge rightly rejected the contention.
(3) Article IV (2) (c). This ground of alleged immunity led to some, argument and citation of authorities on "perils and dangers of the sea". The respondents' counsel submitted that the loss or damage did not so arise or result. The learned judge it would appear accepted that the entry of sea-water into this cargo was prima facie a peril of the sea but he stated that it was necessary to ascertain the cause of its entry before the defence could be established. In this I am in agreement with the learned judge. I would be prepared to hold that the entry of the sea was a peril or danger of the sea but I do not review the authorities because it is clear that this defence must fail if the cover plate was removed in circumstances in which the shipowners are responsible for the act of the stevedores' servant or servants who removed it. If the appellants are not to be held responsible for the act of the thief then they succeed in avoiding liability under the next provision on which they rely and under which the main issue in this case, as I see it, is more appropriately considered.
(4) Article IV (2) (q). "Any other cause" would clearly include theft of part of or malicious damage to the ship and if the loss is not to be held to be a loss by perils of the sea it must be attributed to the removal and theft of the cover plate which gave rise to the unscaworthiness which allowed the sea to come in.
The appellants established that the theft was without their actual fault or privity and they have to establish also that it was without the fault or neglect of their agents or servants. Hourani v. Harrison (1927 Commercial Cases page 305) held that "and" has to be substituted for "or".
The Red Sea Stevedore Co. Ltd. were the agents of the appellants for the discharge and loading of cargo and its handling and stowing at Port Sudan. The thief (I disregard that there may have been more than one, similarly employed) was the servant of...
To continue reading
Request your trial
- Rustenburg Platinum Mines Ltd v South African Airways and Pan American World Airways Inc.
- Tasman Orient Line CV v New Zealand China Clays and Others (The "Tasman Pioneer")
-
Tasman Orient Line CV v New Zealand China Clays Ltd and Others SC
...Phelps, James & Co v Hill [1891] 1 QB 605. 24 Leesh River Tea Co Ltd v British India Steam Navigation Co Ltd (the “Chyebassa”) [1966] 2 Lloyd's Rep 193 (CA). 25 The “Bulknes” [1979] 2 Lloyd's Rep 39 26 Whistler International Ltd v Kawasaki Kisen Kaisha Ltd (the “Hill Harmony”) [2000] UKH......
-
Rustenburg Platinum Mines Ltd v South African Airways and Pan American World Airways Inc.
...with Morris v. Martin (1966) 1 Queen's Bench 716, followed by Leesh River Tea Co. Ltd. v. British Indian Steam Navigation Co. Ltd. (1967) 2 Queen's Bench 250, and the latest case which was heard only a few weeks ago in the Privy Council on the 19th June, The Port Swettenham Authority v. T.W......
-
Carriage of Goods under Bills of Lading and Similar Documents
...522 at 541. 222 See below D(3), "Care of the Cargo." 223 Leesh River Tea Co. v. British India Steam Navigation Co. (The Chyebassa), [1966] 2 Lloyd's Rep. 193, [1967] 2 Q.B. 250 (C.A.). 224 Moxine Footwear Co. v. Canadian Government Merchant Marine Ltd., above note 197. And see Makedonia (Th......