Northern Fishing Company (Hull)Ltd v Eddom (The Norman)
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Radcliffe,Lord Cohen,Lord Keith of Avonholm,Lord Jenkins |
| Judgment Date | 21 January 1960 |
| Judgment citation (vLex) | [1960] UKHL J0121-2 |
| Date | 21 January 1960 |
| Court | House of Lords |
[1960] UKHL J0121-2
House of Lords
Viscount Simonds
Lord Radcliffe
Lord Cohen
Lord Keith of Avonholm
Lord Jenkins
Upon Report from the Appellate Committee, to whom was referred the Cause Northern Fishing Company (Hull) Limited against Eddom (Widow) Dependant of James Francis Eddom, deceased and others (The "Norman"), that the Committee had heard Counsel, as well on Tuesday the 1st, as on Wednesday the 2d, days of December last, upon the Petition and Appeal of the Northern Fishing Company (Hull) Limited, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of February 1959, might be reviewed before Her Majesty the Queen, in Her 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 Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Marjorie Eddom (Widow), Dependant of James Francis Eddom deceased, Helena White (Married Woman), Dependant of Walter White deceased, Eva Winifred Whelan (Widow), Dependant of Patrick Whelan deceased, Nellie Weldrick (Married Woman), Dependant of George Weldrick deceased, Ada Lilian May Tunstall (Widow), Dependant of Albert James Tunstall deceased, Edna Lilian Taylor (Widow), Dependant of John Henry Taylor deceased, Robin James Webb Staines and Leonard George Staines (Infants by their next friend Marie Ethel Staines), Dependants of Robert James Webb Staines deceased, Kate Smith (Widow), Dependant of Peter Sidney Herbert Smith deceased, Vera Ottley (Widow), Dependant of Frank Ottley deceased, Eva Gregory (Widow), Dependant of George Edward Gregory deceased, Sarah Brown (Widow), Dependant of Cyril Ashley Brown deceased, Lily Booth (Married Woman), Dependant of Harry Rumkee deceased, Martha Alice Berg (Widow), Dependant of Arthur James Berg deceased, Annie Elizabeth Clark (Widow), Dependant of William Clark deceased, Barbara Conroy (Widow), Dependant of George Conroy deceased, and Phyllis Cowlam (Widow), Dependant of John Arthur Cowlam deceased, and all persons claiming to have maintained damage or loss by reason of the sinking of the s.t. "Norman" on the 4th October 1952, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 26th day of February 1959, complained of in the said Appeal, be, and the same is hereby, Affirmed, and the said Petition and Appeal be, and thè 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.
My Lords,
On the 4th October, 1952, the steam trawler "Norman" in the course of a fishing voyage in Greenland waters stranded upon a hitherto uncharted rock off Cape Farewell with the loss of nineteen out of her crew of twenty. The only survivor was a young so-called "deckie learner".
The Appellant company, while admitting vicarious liability for the improper navigation of the vessel to the dependants of those who had lost their lives, commenced proceedings against them in a number of suits, which were consolidated, claiming under section 503 of the Merchant Shipping Act, 1894, to limit their liability to £15 per ton for each ton of the registered tonnage of the "Norman". It therefore lay with them to allege and prove that the stranding occurred wholly without their actual fault or privity. This the Respondents denied by a defence, in which many pleas of actual fault were made but only two survived, both of them late additions, namely, (3 A) that the Appellant Company "failed to issue instructions that the 'Norman' should not be navigated in an area where the presence of uncharted rocks was to be anticipated" [expected or feared?] "and/or that she should not be so navigated in fog", and (7), that they "failed to communicate to those on board the 'Norman' the latest information regarding reefs and/or rocks and/or other dangers to navigation in the vicinity of the area where she was likely to be navigated and in particular in the area near Cape Farewell where she grounded." These two pleas may, I think, be regarded as different aspects of the same plea. If the Appellant Company were in fault in one respect, so they were in the other.
My Lords, I have so far spoken of the fault of the Appellant Company, but they put forward their joint managing director, Mr. Mark Hellyer, as their alter ego whose actual fault or privity would for the purpose of the action be deemed to be theirs. He was so accepted by the Respondents and I shall in future speak only of "Mr. Hellyer".
It was on the 17th September, 1952, that the ill-fated "Norman" sailed from Hull. On the 26th September she began to trawl in an area described as W.E.42—a secret grid reference—which lies immediately to the southward of Cape Farewell, the southernmost tip of Greenland, and is some fifteen miles by fifteen miles in size, its northern boundary being very close to the mainland of Eggers Island. She had been engaged in fishing for some days and was so engaged on the 3rd October. During the night of the 3rd she was not fishing: she was standing off and her crew were gutting fish preparatory to fishing again next day. At about 7.30 in the morning of the 4th October, there being then a thick fog and visibility nil, with her engines working at half speed ahead the vessel stranded on a rock whose presence was unknown and unsuspected. There was a strong westerly breeze and a considerable swell. It was the Bosun's watch with two deck hands. So much of the casualty was told by Norman Spencer, the deckie learner, who also said that at breakfast he saw flickering lights in the messroom which showed that the radar had been put into action. He noticed, too, on his way to his bunk in the forecastle that the radar scan was rotating. He gave a vivid account of the miraculous way in which he alone was saved when the vessel sank and the rest of the crew were swept away. He swam to the rock and at the fourth attempt obtained a handhold. He took what shelter he could on the rock and there remained for about ten hours when, the fog clearing, he was rescued by the Norwegian fishing boat "Posiedon." So much that is material I have been able to glean from Spencer's deposition which was taken soon after the wreck. It is, I think, unfortunate that he was not available for further questioning at the trial.
I have told your Lordships what were the actual faults alleged, as I may now say, against Mr. Hellyer. I must now state some further facts which are not in dispute. The rock on which the "Norman" stranded was not marked on the charts then in use. It has since been found to be about two trawlers' length in diameter and reaches a height about thirty feet above sea level. It is within the territorial waters of Greenland under Danish sovereignty.
The "Norman" was insured with the Hull Steam Trawlers Mutual Insurance and Protection Company Limited, with which Mr. Hellyer was himself closely associated. Most of the trawlers at Hull are insured with this company, which in practice acts on the trawler owners' behalf and provides them with charts and navigational handbooks. Moreover, before any insured trawler goes on a Greenland fishing voyage her skipper must report to the manager of the company, a Captain Boutwood, for a special briefing. The coast of Greenland is dangerous, the neighbouring sea rock-infested and inadequately charted. In accordance with his usual practice Captain Boutwood briefed the skipper of the "Norman" before her last voyage. He showed him some United States Navy charts of the area which were new to the experience of skippers who had formerly used Danish charts. He referred to the special caution on the chart numbered 5770 which says:
"This chart is from incomplete surveys and should be used with caution".
On this matter he dilated. I would do full justice to the case of the Appellants and will therefore cite at some length an answer given by Captain Boutwood at the trial. This is what he said:
"423. The Witness: 'Then I would point out the numerous rocks round the coastline. On that particular chart there is a very convenient "P.D." on the left edge showing a rock whose position is doubtful. I used to point that out and say that a rock could have a doubtful position there. The survey was incomplete. They could never be sure, if they were anywhere near the coastline, that there may not be rocks other than those shown on the chart. I also told them that they could not depend upon the positions of rocks charted. I remember that I used to use as a simile that I felt that very often the positions of the rocks were known in general but that the people responsible for drawing the charts had probably done their best in a somewhat pepper-box manner'."
It is not to be doubted, my Lords, that the skipper of the "Norman" sailed from Hull with an ample appreciation of the hazards of the venture upon which he was embarking, nor that he had then been given all the information which was available to enable him to meet them. It was the practice of the insurance company to collect information from skippers relating to navigational hazards in newly exploited fishing grounds and to issue circulars relative to such matters to trawler owners. This practice had been followed in the case of the "Norman" up to the time of her sailing....
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