Mersey Docks and Harbour Board v Hay
| Jurisdiction | England & Wales |
| Judge | The Earl of Birkenhead,Viscount Finlay,Lord Atkinson,Lord Sumner,Lord Phillimore,. |
| Judgment Date | 16 March 1923 |
| Judgment citation (vLex) | [1923] UKHL J0316-3 |
| Date | 16 March 1923 |
| Court | House of Lords |
[1923] UKHL J0316-3
House of Lords
Earl of Birkenhead.
Viscount Finlay.
Lord Atkinson.
Lord Sumner.
Lord Phillimore.
After hearing Counsel, as well on Thursday the 7th, as Friday the 8th, days of December last, upon the Petition and Appeal of the Mersey Docks and Harbour Board of the Dock Office, George's Pierhead, Liverpool, in the County of Lancaster, praying, That the Matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 20th of December 1921, so far as regards the words, "and with the addition in lieu thereof of an Order that the said sum of 4,451 l. 13 s. 1 d. do remain in Court until further Order with liberty to either party to apply as to payment out", and also the words, "The appeal of the Mersey Docks and Harbour Board be dismissed with costs and", might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of William Hay, John Hay and John Hunter (trading as J. Hay and Sons), Thomas McLaren Milne, George Jackson, Robert Gibson Service, William, Baron Invernairn, William Thomson Blakeley, Walter McNab, William Campbell, Jessie Frew Wallace, Margaret Marshall Downie, Alexander Frew Wallace and John Gifford, the Owners of the Steamship "The Countess", lodged in answer to the said Appeal, and also upon the printed Case of the Owners of the Barge "Francis" and other Barges and of the Cargo on board some of the said Barges (who were by an Order of this House, of the 29th day of June last, added as Respondents in the Appeal and ordered to lodge a printed Case in answer thereto); 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 20th day of December 1921, in part complained of in the said Appeal, be, and the same is hereby, Varied by omitting therefrom the words "and with the addition in lieu thereof of an order that the said sum of 4,451 l. 13 s. 1 d. do remain in Court until further order with liberty to either party to apply as to payment out"; And it is further Ordered, That the sum of 4,451 l. 135 s. 1 d. be paid out of Court to the Appellants, and that the Respondents, the Owners of the Steamship "Countess", do pay to the Appellants the further sum of 16 l 11 s. 8 d. (making in all the sum of 4,468 l. 4 s. 9 d.), pursuant to their undertaking: And it is further Ordered, That the Respondents, the Owners of the Steamship "Countess",and the Respondents, the Owners of the Barge "Francis ", do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, such costs to be taxed as between Solicitor and Client: And it is further Ordered, That the Respondents, the Owners of the Steamship "Countess", and the Respondents, the Owners of the Barge "Francis", do pay, or cause to be paid, to the said Appellants the Costs incurred by them in respect of the said Appeal to this House, such Costs to be taxed as between Solicitor and Client and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Admiralty Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
These Appeals are from the two orders of the Court of Appeal in England each dated 20th December 1921 affirming with variations decrees made by the President of the Probate, Divorce and Admiralty Division and dated 23rd March 1921, in two actions brought by the Respondent shipowners against the Appellants.
The Respondent shipowners are the owners of the S.S. The "Countess" which on 5th June 1920 was being navigated in the Alfred Dock at Birkenhead, one of the docks owned by the Appellants. Owing to the negligence of those on board the vessel, she collided with the dock gates leading to the River Mersey and carried away part of the gates. The water in the dock being above the level of the river at the time, the vessel, together with a number of barges and like craft, was carried into the river, where a series of collisions took place; some eighteen or twenty barges were sunk or damaged; and the S.S. "The Countess" was holed. She was towed to and beached at Tranmere to save her from sinking. On that day the Appellants' Assistant Marine Surveyor formed the opinion that the vessel was or was likely to become an obstruction, impediment or danger to the convenient navigation or use of the Port of Liverpool and signed a certificate to that effect. The Appellants took possession of the vessel, effected temporary repairs and then towed her to a place of safety.
The owners of the vessel admitted negligence, which obviously was without their actual fault or privity. The damage done to the locks, gates, &c. of the Appellants was estimated at 10,000 l. The loss or damage caused to the barges and other craft (which included a barge belonging to the Appellants) and their cargoes was about 55,000 l. There was no loss of life.
The tonnage of "The Countess," according to the Merchant Shipping Acts, was 558.83 tons, and the statutory amount of her liability at 8 l. per ton was therefore 4,468 l. 4 s. 9 d. Her value at the date of these events was about 34,000 l. The amount claimed for raising, removing and detaining the vessel is about 1,000 l.; but no question arises upon that matter in these Appeals.
The Mersey Dock Acts Consolidation Act, 1858, section XCIV.. provides that, where damage is done to any lock gate or other work of the Appellants through the negligence of the master or any other person on board a vessel, the amount of the damage may be recovered from the master or owner summarily before a justice of the peace, or, at the Appellants' option, the vessel may be detained until such damage is paid or a deposit is made of the amount claimed by the Appellants. A deposit is to be deemed to have been paid in satisfaction unless notice of dispute is given within seven days.
The Appellants, by letter of the 7th June 1920, informed the Respondent shipowners that they held the latter responsible for the damage and that the vessel was detained under the above-mentioned section.
Numerous actions against the Respondent shipowners having been commenced by the bargeowners, these shipowners on 14th June 1920 commenced a limitation action in which they claimed to limit their liability to the amount ascertained under the Merchant Shipping Acts and to have the amount ascertained and distributed rateably among the claimants. The bargeowners' actions were therafter stayed. In this limitation action the Respondent shipowners applied by summons for an order releasing the vessel upon payment into Court of the statutory amount of their liability. No order was made and an appeal was dismissed by Hill, J., on 12th July 1920. On the same day the Respondent shipowners issued a writ against the Appellants claiming the delivery up of the vessel and damages for detention. In this detinue action they issued a summons for delivery up upon such terms as to payment into Court as might appear to the Court to be just, and eventually the Court of Appeal made an order under which on 27th July 1920 the Respondent shipowners paid into Court the sum of 5,500 l. and the vessel was delivered up to them. In this detinue action the Appellants justified the detention under section XCIV. of the Mersey Dock Act, 1838, already mentioned and also under section 7 of the Mersey Dock Act, 1912 (which authorises them to raise and remove wrecks, &c.), and counterclaimed for declarations as to their rights and to be paid out of the money lodged in Court the amount ascertained in the limitation action to be the liability of the vessel, or if no decree, the actual amount of the damage and also the expenses of raising and removing the vessel.
The two actions were tried together, and on 23rd March 1921 the President held that the Respondent shipowners were entitled to a decree in the limitation action; that until decree the detention was justified; but that after decree the Appellants had no priority over other claimants in the limitation fund which was to be distributed pari passu without regard to priorities. He held that the Appellants were entitled to be repaid in full the cost of raising and removing the vessel. The balance of the money in Court after such repayment he ordered to be paid to the credit of the limitation action for distribution in the manner decreed by him.
The Appellants appealed in both actions. The Respondent shipowners appealed in the detinue action. These Appeals were heard together, and on 20th December 1921, the decrees were affirmed with variations, the majority of the Court agreeing with the judgments of the President except that the Appellants were held entitled to detain the ship until the rateable sum payable to them had been ascertained and paid.
From these orders the Appeals have been brought to your Lordships' House where the bargeowners, who were not parties, have appeared to support the orders appealed against.
The Mersey Dock Acts Consolidation Act, 1858, section XCIV., which was preceded by similar sections in two previous statutes relating to the Appellants' undertaking or some parts thereof, viz., 51 Geo. III. c. 143,...
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