Liverpool (The) (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN |
| Judgment Date | 28 July 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0728-2 |
| Date | 28 July 1960 |
| Court | Court of Appeal |
Between:
The "Liverpool" (Limitation)
[1960] EWCA Civ J0728-2
The Justice Hodson
Lord Justice Ormerod and
Lord Justice Harman
In The Supreme Court of Judicature
Court of Appeal
Mr. J.V. NAISBY, Q.C., Mr. G.H. NEWSOM, Q.C. and Mr. G.N.W. BOYES (instructed by Mr. R.H. Bransbury, Liverpool) appeared on behalf of the Appellants the Mersey Docks and Harbour Board (Respondents to cross-appeal of Messrs. Waltons' Clients.)
Mr. BOSTACE W. ROSKILL, Q.C. and Mr. H.V. BRANDON (instructed by Messrs. Waltons & Co.) appeared on behalf of the Respondents the owners of part of the cargo on board the "Ousel" (Appellants on cross-appeal.)
Mr. ROLAND ADAMS, Q.C. and Mr. R.F. STONE (instructed by Messrs. Weightman, Pedder & Co., Liverpool) appeared on behalf or the Respondents the owners of the "Ousel"
LORD JUSTICE HODSON: The judgment of the court will be read by Lord Justice Harman.
This is an appeal from a decision of the President delivered on the 21st December last on two issues raised in an action in the Admiralty Court under which the plaintiffs, the owners of the steamship "Liverpool" (which wan wholly responsible for a collision within the area of that port) have boon allowed to limit their liability under sections 503 and 504 of the Merchant Shipping Act, 1894. The sum paid into court under this order amounts to some £12,000. The aggregate of the claims against the Lara greatly exceed this sum and the dividend payable is likely to be in the region of 6s. Od. in the All the facts arc agreed and art sufficiently stated in the President's judgment and we not report them beyond saying, that the issue
The next are the owners of the sunken vessel, the "Ousel", whose claim amounts to over £70,000, of which about £60,000 is agreed, and the last £10,000 in the subject-matter of the present dispute. This last sum represents a claim to be indemnified against the sum payable by the owners of the "Ousel" to the Board as hereafter explained.
Thirdly there are claimants to cargo and so on whose claims amount to £170,000.
Certain of the cargo claimants have raised the instant question which arises out of the right conferred on the Board by the 1954 Act apart from its common law claim for damages in tort against the "Liverpool", now represented by the fund in court, to claim over against the owners of the "Ousel" any deficiency in the amount recovered after giving such credits as the Act enjoins. This deficiency, having regard to the proviso to section 3 subsection 3, which entitles the "Ousel" to limit its liability, amounts to the £10,000 already mentioned. The cargo owners allege that this sum is being in effect claimed twice against the fund, first by the Board and second by the "Ousel".
The President's decision was that the claim by the owners of the "Ousel" for the £10,000 should be allowed, but that the Board must reduce its claim against the fund by a like amount. There thus arise, as we apprehend, the following questions; Can both the Board and the "Ousel" prove for the £10,000 against the fund, and if not which of them is to give way? The President decided that only one proof should be admitted to rank and that the "Ousel's". The Board appeals.
It seems to us that logically the first question to decide is whether the Board should reduce its claim. The President's answer in the affirmative rested on two considerations, first that the Beard by letter dated the 8th January, 1957, gave notice to the owners of the "Ousel" that any deficiency was recoverable by them from the owners (see Record Volume 2 page l), and secondly that by letter dated the 26th January, 195S, the Board gave further notice to the owners of the "Ousel" in these terms: "So far as concerns the main question contained in your letter, it is clear that whether the Board makes a claim upon your clients, and if so for what sum, must depend upon the amount of the share that they may receive of the limitation fund. As matters stand at present it appears that the Board's prospective share will still leave them with a deficiency on their wreck expenses greatly exceeding the amount of your clients' statutory liability under section 3 of the Board's Act of 1954, and in such case the Board will of course look to your clients for payment of the sum for which they are liable under the statute". The President held that by taking these steps the Board had in effect mitigated its damages in tort against the "Liverpool" by the amount it was in a position to recover from the "Ousel" under its statutory power. He further held that the Board ought in reason to mitigate its loss by enforcing this claim and that not to do, so is unreasonable and therefore to the extent of the £10,000 the damages do not flow from the wrongdoing. In so deciding the President followed the principles as to mitigation of damages laid down in the Westinghouse case (1912 Appeal Cases, page 688).
In our judgment the first part of the President's decision does not fit the facts. Let it be conceded that if the Board had recovered the £10,000 from the "Ousel" under its statutory power that would have been satisfaction pro tanto of the damages, still the fact is that the Board has not recovered this sum, and in our judgment there is no duty upon it to do so. It is true that at the trial of the issue the "Ousel"- owners declared themselves ready to pay and in fact tendered the money, which is now on deposit with stakeholders, but we cannot see that this makes any difference, for the tender has never been accepted. The passage from the judgment of Lord Goddard in ( Morris v. Perrott 1945 All England Reports, page 56) cited by the President shows quite clearly that even if the Board had obtained judgment against the "Ousel" there would have been no duty upon it to proceed to execution in alleviation of the "Liverpool", which Is a tort feasor. Here in fact no claim for payment has ever been made. The letter at page 36 of the Record (from which I have read) is merely an intimation that a claim may be made hereafter.
As to the second part of the President's decision, this case, in our...
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