Morrison Steamship Company Ltd v Greystoke Castle (Cargo Owners)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Simon,Lord Roche,Lord Porter,Lord Simonds,Lord Uthwatt
Judgment Date22 November 1946
Judgment citation (vLex)[1946] UKHL J1122-1
Date22 November 1946

[1946] UKHL J1122-1

House of Lords

Viscount Simon

Lord Roche

Lord Porter

Lord Simonds

Lord Uthwatt

Morrison Steamship Company Limited
The Owners of Cargo Lately Laden on Board the s.s. "Greystoke Castle"

After hearing Counsel, as well on Tuesday the 28th, Wednesday the 29th, Thursday the 30th and Friday the 31st days of May last, as on Monday the 3d, Tuesday the 4th and Wednesday the 5th, days of June last, upon the Petition and Appeal of Morrison Steamship Company Limited, of 28 Mosley Street, Newcastle-on-Tyne, 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 1944, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order 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 the Owners of Cargo lately laden on board the Steamship "Greystoke Castle", lodged in answer to the said Appeal; 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 1944, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Simon

My Lords,


This Appeal involves a difficult question of principle relating to General Average Expenditure—a question on which this House has not hitherto pronounced and on which previous decisions in the English Courts appear to be in conflict. I have had the great advantage of reading and studying the Opinions prepared by my four colleagues who sat with me to hear the Appeal: these Opinions, as will shortly transpire, are not unanimous, but three out of the four lead to the conclusion that the Appeal should be dismissed and this, therefore, will be the decision of the House.


My own reflections have led me to the minority view expressed by my noble and learned friend Lord Simonds, whose reasoning and conclusion I would adopt. Without seeking to duplicate the argument, I add these observations.


I understand that your Lordships are at one in rejecting the view of Lord Justice Scott that when the "Greystoke Castle" makes its claim to recover General Average Expenditure from the "Cheldale", which is partly to blame for the collision, the "Greystoke Castle" can only recover the net sum arrived at by deducting the cargo-owner's contribution. I agree with the rest of Your Lordships in this view. This being so, it follows that if the Respondents' contention is accepted there are two possible Claimants against the "Cheldale" to recover the amount of the cargo-owner's contribution. This, to say the least of it, may introduce complications. Lord Justice MacKinnon seeks to avoid these by saying that the two claims ought to be dealt with together, when the Court will see to it that nothing is paid twice over and that the right Claimant gets the money. But the claims are not necessarily heard at the same time—and were not in the present case. Indeed, it is quite possible that the two claims might be dealt with in different jurisdictions, for one of the Claimants might serve process on the "Cheldale" when in a foreign port. It is not entirely clear to me how the competing claims would be handled even if they came before the same Court, though no doubt means of doing justice would be found. But it is further to be observed that if the Respondents' view is right a claim brought by one of the Claimants alone could not be wisely compromised without bringing the other Claimants before the Court; the Court, one would suppose, ought to have all competing Claimants before it.


I venture also to think that some confusion may result from treating the cargo-owner's direct claim in respect of his contribution to General Average Expenditure as analogous to his claim when his goods are damaged by negligence. In the latter case there is an invasion of his proprietary right, and questions of the claims of bailor and bailee may arise. In the former case neither ownership nor possession is involved, and the question is merely as to the means of getting back a money payment made to a third party.


What I have said does not, of course, prove that the cargo-owner cannot make a direct claim—for that I rely on and adopt Lord Simonds' argument—but it does go to indicate some of the considerations to be weighed before deciding that that argument is wrong.

Lord Roche

My Lords,


My Lords, this appeal raises questions of some nicety and difficulty, but in spite of the admirable argument addressed to the House by Sir William McNair on behalf of the Appellants I am of opinion that the result arrived at in the Courts below is correct and that the appeal should be dismissed.


I omit any detailed account of the facts of this case, as they are so fully set out by my noble and learned friend Lord Porter, whose Opinion I have had an opportunity of reading. There is therefore upon the facts little I need add or repeat. The claim of the Respondents, owners of cargo laden on the "Greystoke Castle", is so far as it is in dispute a claim to be paid direct by the owners of the "Cheldale" (as having been held one quarter to blame for the collision) one quarter of the amount they have paid in General Average in respect of port of refuge expenses incurred by reason of the collision. The Appellants contend that no such claim can be asserted by the Respondents and that they have only to deal in respect of port of refuge expenses with the shipowners who owned the "Greystoke Castle". If that is correct, then by reason of the rules governing cross liabilities laid down in the Khedive, L.R. 7 A.C. 795, the sum to be effectively collected from the Appellants under this head is less than the quarter afore-mentioned by over £1,000. Except, however, as explaining why there is a dispute this money difference is immaterial for the decision of the questions of principle involved.


One other fact may be stated in order to eliminate a topic considerably discussed in the Courts below. The owners of the "Greystoke Castle" included in their claim the whole of the port of refuge expenses, and there was an agreement with the Appellants allowing this claim with certain adjustments. But meanwhile the Respondents had both asserted their independent claim against the Appellants and had in fact paid their share of the port of refuge expenses to their shipowners, the owners of the "Greystoke Castle". Accordingly, after the President's judgment sustaining the Respondent's claim, the figure agreed between the respective shipowners was reduced in order to give effect to the judgment, and there is no question whatever of the Appellants being required to pay twice by reason of the assertion of rival claims upon them for the same amounts. This leads me to mention and dispose of a question arising out of certain reasons assigned by Scott L.J. for his judgment somewhat severely restricting the right of shipowners to assert a claim in cases such as the present. I do not myself agree with those reasons or regard them as necessary to support a judgment in favour of the Respondents. I cannot doubt that on the principles recognised in the Winkfield, 1902 P. 42, the shipowner in a proper case can claim the whole of the port of refuge expenses on behalf of himself and of owners of cargo and freight. But equally I do not doubt that if he who has the general property, that is to say the cargo owner, has an independent right to claim and asserts that claim in competition with the shipowner's claim and asserts it in time, his claim must prevail. See the authorities discussed in Salmon on Torts, 10th Edition, at p. 307-308.


I come now to the real matters of contention in the case. Before the Registrar and the President the question debated seems to have been solely whether the decision in the ( Marpessa 1891 P. 403) was correct or alternatively was so venerable that it should be followed. That decision rests on reasons as to causation. In the Marpessa the damages claimed were held to be due to what was described as "the relationship of ship to cargo" and not to the collision. This reasoning is in my judgment erroneous. I should be content to adopt the judgment of the President in this case as expressing my reasons for this opinion. I agree with him also in thinking that the decision of the Court of Appeal in the ( Minnetonka 1905 P. 206) is inconsistent with the Marpessa. In my judgment the reasoning of the Court of Appeal in the Minnetonka is right and that of the then President in the Marpessa is wrong. This matter is admirably put by Hughes C.J. in giving the judgment of the Supreme Court of the U.S.A. in the ( Sucarseco 51 Ll. L.R. 238 at p. 241), "The nature of these expenditures" (General Average) "and the fact that they are traceable directly to the collision are not changed by the sharing in General Average. That merely affects the distribution of the loss, not its cause." It was said for the Appellants that the law of the U.S.A. as to General Average was in some respects different from the law of England, and this is no doubt true, though the differences seem immaterial to anything which arises in the present action, and as regards our present topic the decision under consideration was not concerned with the law of General Average so much as with the...

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