Owners of Cargo of Steamship Tongariro v Astral Shipping Company
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1910 |
| Date | 12 December 1910 |
| Court | House of Lords |
House of Lords
Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Atkinson and Shaw
Owners of Cargo of Steamship Tongariro v. Astral Shipping Company
The BerninaDID=ASPM 6 Asp. Mar. Law Cas. 75 (1887) 56 L. T. Rep. 258 12 P. Div. 58
Thorogood v. BryanENR 8 C. B. 115
The MilanENR 1 Mar. Law Cas. O. S. 185 (1861) 5 L. T. Rep. 590 Lush. 388
Hay v. Le Neve 2 Shaw, Sc. App. 395
Armstrong v. Lancaskire and Yorkshire RailwayENR 33 L. T. Rep. 228 L. Rep. 10 Ex. 47
Stoomvart Maatschappy v. Peninsular and Orisutal Steam Navigation CompanyDID=ASPMELR 4 Asp. Mar. Law Cas. 567 (1882) 47 L. T. Rep. 198 7 App. Cas. 795
The Lord Melville 1816, 8 Shaw Sc. App. 402
Merryweather v. NixanENR 1799, 8 T. R. 186
Palmer v. Wick and Pulteneytown Steam Shipping Company 71 L. T. Rep. 163 (1894) A. C. 318
Chartered Mercantile Bank v. Netherland Steam Navigation CompanyDID=ASPMELR 5 Asp. Mar. Law Cas. 65 (1883) 48 L. T. Rep. 546 10 Q. B. Div. 521
Judicature Act 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 9
Collision Both to blame Rights of owner of cargo
Judgment of the court below affirmed.
520 MARITIME LAW CASES. H. OF L.] Owners of Cargo or Steamship Tongariro v. Astral shipping Co. [H. of L. Nov. 10,14, and Dec. 12, 1910. (Before the Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Atkinson and Shaw.) Owners of Cargo of Steambship Tongariro v. astbal shipping company.(a) On appeal from the court of appeal in BOLAHD. Collision-Both to blame-Right of owner of cargo-Judicature Act 1873 (36 & 37 Vict. c. 66), s. 25, sub-. 9. The rule laid down in The Milan (1 Mar. Law Cas. O. S. 185 (1861); 5 L. T. Rep. 590; Lush. 388). that in the case of a collision between two ship, where both an to blame, an innocent cargo owner can only recover half his damages from the owners of the other ship, is a rule " in force in the Court of Admiralty . . . at variance with the rules in force in the court of common lew" within the meaning of sect. 25, sub-sect. 9, of the Judicature Act 1873. Judgment of the court below affirmed. Appial from a judgment of the Court of Appeal (Vaughan Williams, Fletcher Moulton, and Buckley, L.JJ), reported 11 Asp. Mar. Law Gas. 451 (1910); 103 L. T. Rep. 359; (1910) P. 249, affirming a judgment of the President, Sir S. Evans. The question was whether, when there has been a collision between two ships in snob circum-stances that both vessels are to be deemed in fault, and cargo on one of the ships has been damaged by the oollision, the owners of the cargo so damaged, being in no w"y identified with the owners of the earning ship, can recover the whole or only a moiety of their damages from the owners of the other ship. The collision occurred on the 27th Nor. 1908, near the South Goodwin Lightship, between the respondents' steamship Drumlanrig and the New Zealand Shipping Company's steamer Tonga-tiro. Both Teasels sustained injuries, and damage was done to both cargoes. The facts are set out fully in the report in the court below. The Admiralty registrar found that the owners of the cargo on the Tongariro were only entitled to recover from the owners of the Drumlanrig half the damages which they had sustained, in accordance with the rale laid down by Dr. Lushington in The Milan (sup). This report was confirmed by the President. Sir B. Finlay, K.O, Bailkaehe, KG., and Duma, for the appellants, contended that the provision in sect. 2a, sub-sect 9, of the Judicature Act 1873 that "the rules hitherto in force in the Court of Admiralty so far as they hare been at variance with the rules in force in the courts of common law " should prevail in proceedings for damages arising out of the collision of two ships, where both shall be found to have been in fault, must be understood as applying to snob rules as are correct in law, and was not Intended to make erroneous rules prevail. The supposed rule here is clearly enoneous. The decision in The Milan (ubi sup.) rests upon no principle whatever. It was based on the theory of the identification of a passenger with the conveyance in which he was travelling which was adopted in Thorogood v. Bryan (6 0. B. 115), but that case was overruled by the Court of Appeal in The Bernina (6 Asp. Mar. Law Gas. 75 (1887); 56 L. T. Rep. 258; 12 P. Div. 58), which waa affirmed in this House (6 Asp. Mar. Law Gas. 257 (L888); 58 L. T. Rep. 423; 13 App. Gas. l)and the whole basis of the derision in The Milan was destroyed. [Lord Shaw referred to Palmer v. Wick steamship Company (71 L. T. Rep. 163; (1894) A. O. 318).] "In force" most mean " properly in fores." Aspinall, KG., Laing, KG., and Balloch, for the respondents, maintained that the decision of the Court of Appeal was right The rule was discussed in this House in Stoomvaart Maattehappy v. Penintslar and Oriental steam Navigation Company (4 Asp. Mar. Law Gas. 567 (1882); 47 L. T. Rep. 198; 7 App. Cas. 795), but it was not necessary for the decision of that case. It is not affected by the decision in The Bernina (ubi tup.). The rale was established in Say v. Le Neve (2 Shaw So. App, 395), and the cases from 1789 onwards show that ship and cargo were always held to be on the tame footing though the actual point was never laid down in terms till The Milan in 1861, but in that case Dr. Lushiogton, whose experience of the Admiralty Court dated from 1815, said that the practice appeared to have been uniform. It cannot, therefore, have been founded on the case of Thorogood v. Bryan (ubi tup.), which was decided in 1849. The Court of Appeal recognised the rale in Chartered Mercantile Bank v. Netherland Steam Navigation Company (5 Asp. Mar. Law Gas. 65 (1883); 48 L. T Rep. 546; 10 Q. B. Dlv. 521). It is clearly a rule " hitherto in force" within the Act of 1873. They also referred to The Woodrop Sims, 2 Dodson, 83. Sir B. Finlay, E.G. in reply.-" Hitherto in force" means " according to the true view of Admiralty law." In The City of Manchetter (4 Asp. Mar. Law Gas. 261(1880); 42 L. T. Rep. 521: 5. P. Div. 221) James, L.J. appears to have doubted the rale supposed to have been laid down in The Milan. At the conclusion of the arguments their Lordships took time to consider their judg-ment Dec. 12.--Their Lordships gave judgment as follows:- The Lord Chancellor (Loreburn). -My Lords: I think it clear that the Court of Appeal was right The plaintiffs, owners of cargo, bad their goods on board the steamship Tongariro. This vessel collided with the steamship Drum, lanrig, and it is to be taken that both vessels were to blame. Accordingly the plaintiffs claim against the owners of the Drumlanrig damages for injury to their goods by the collision, it is only a question as to damages. Can the plaintiffs recover the whole of their loss, or only 50 per cent, of it? In order to apply the statutory (a) Reported by O. E. MALDEN, Esq., Barrister-at-law. MARITIME LAW CASES. 521 H. OF L.] Owners OF CARGO OF Steamship Tongariro v. Astral Shipping Co. [H. OF L. direction contained in the Judicature Act of 1873., sect 25, sub-sect 9, " In any mate or proceeding for damages arising oat of collision between two chips, if both ships should be found to bare been in fault, the roles hitherto in force in the Court of Admiralty, so far ma...
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