Owners of the Thuroklint v Owners of the Koningin Juliana (Koningin Juliana, The) (Thuroklint)
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Fraser of Tullybelton |
| Judgment Date | 07 May 1975 |
| Judgment citation (vLex) | [1975] UKHL J0507-3 |
| Date | 07 May 1975 |
| Court | House of Lords |
[1975] UKHL J0507-3
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Fraser of Tullybelton
Upon Report from the Appellate Committee, to whom was referred the Cause Owners of Ship "Thuroklint" and others against Owners of Ship "Koningin Juliana" (the "Koningin Juliana"), That the Committee had heard Counsel, as well on Monday the 24th, as on Tuesday the 25th and Wednesday the 26th, days of February last, upon the Petition and Appeal of the Owners of the Ship "Koningin Juliana" 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 12th of July 1974, 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 Case of the Owners of the Ship "Thuroklint", her Master, Officers and Crew suing for their lost effects, 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 12th day of July 1974, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Brandon of the 25th day of May 1973 thereby varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs 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 Court, Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This case is concerned with a collision which took place on 1st January, 1971, near Harwich between the appellants' vessel Koningin Juliana and the respondents' Thuroklint, resulting in substantial damage and loss of effects.
The Koningin Juliana is a ship of 6,682 tons gross which provides a regular ferry service between Harwich and the Hook: she was leaving on the night crossing when the collision occurred. The Thuroklint is a coaster of 300 tons gross which was carrying a cargo from Sweden to Ipswich. Both vessels were undoubtedly guilty of faults of navigation, causative of the damage, and the question for the courts is how this damage should be apportioned in accordance with the Maritime Conventions Act, 1911 section 1. Brandon, J., who tried this case with Nautical Assessors, apportioned the blame as to two-thirds to the Thuroklint and one-third to the Koningin Juliana. There was an appeal to the Court of Appeal (Lord Denning, M.R., Cairns, L.J., and Sir Gordon Willmer, sitting with Nautical Assessors). The majority held that the blame should be apportioned equally to each ship. Sir Gordon Willmer, dissenting, would have upheld the apportionment of the trial judge.
My Lords, I do not propose to undertake a detailed examination of events which led to the collision. The learned judge made careful findings of fact, which were upheld by the Court of Appeal and not challenged in this House. The advice of the Nautical Assessors was, with one exception as to which that given at the trial was preferred, to the same effect in each court below. The report of the case before Brandon, J. [1973] 2 Lloyd's Rep. 317 contains a chart of the location which can be consulted: the detailed times, bearings, speeds, etc., are clearly found by the trial judge. There is now no dispute as to the faults committed by each vessel: as to the Thuroklint, in a clear and continuing breach of r. 25(a) of the Collision Regulations which in narrow channels requires power-driven vessels to keep to the starboard side of the fairway or mid-channel; in failing to indicate alterations of course to starboard by signals of one short blast; in going hard to starboard just before the collision. As to the Koningin Juliana, in bad look-out and appreciation; in failure to starboard sufficiently at the Guard Buoy and instead attempting to cross ahead of the Thuroklint; in failure to take steps, having steadied after starboarding on 109 deg. (true), to take off her way by stopping and reversing engines.
All of these faults being found, it became a matter of appreciation to decide how they should be weighed so as to arrive at a just apportionment of blame.
My Lords, this summary of the issue is, I believe, sufficient to make it clear that the case is one where, the trial judge having made an apportionment, taking all factors into account, a Court of Appeal, including this House, ought not to disturb it. The modern authority which reflects this principle is the decision of this House in The Macgregor, British Fame (Owners) v. Macgregor (Owners) [1943] A.C. 197, where the reasons for the rule are clearly and authoritatively stated. I shall not repeat them: they are as valid and as generally applicable today. Of subsequent cases relied on as to some degree diminishing the force of The Macgregor I need only refer to two. In ( The Almizar [1971] 2 Lloyd's Rep. 290) the apportionment of the trial judge was reversed after his crucial finding, on advice, had, on different advice, been rejected by the Court of Appeal. On further advice in this House, the apportionment was further varied. I think that it is clear that in both appeal courts the new apportionment was based upon the advice those courts had received, so that the factual elements upon which the apportionment has to be based were not the same. Variation of the apportionment in these circumstances is clearly authorised by The Macgregor ( ante).
In The British Aviator [1965] 1 Lloyds Rep. 271 the trial judge's apportionment (two-fifths—three-fifths) was altered by the Court of Appeal to equal apportionment. No fresh findings of fact were made by the Court of Appeal nor were the findings of the judge disagreed with. The revision was made on the basis that the judge had taken "a wrong view of the facts": he did not "appreciate the seriousness of the fault" of the Crystal Jewel, My Lords, I must say that I doubt the validity of this decision and I note that Willmer, L.J., whose authority lends its weight, himself clearly thought the case to be on the borderline (see p. 278). I deprecate the use of this case as a basis for weakening of the Macgregor rule.
Attempts were made by learned counsel for Thuroklint to discover errors, or errors of appreciation, in the judgment of the trial judge, but in my opinion these were not made good. The only criticism which appeared possibly to have any substance was that he had grouped three faults of the Koningin Juliana into one "composite fault". But it does not follow from this that he failed to give proper weight to the elements forming the composite fault, or that he would have given more weight to them if he had regarded them as separate faults. I certainly find it impossible to believe that he was led, by his description, into the crude mathematical sum suggested by the learned Master of the Rolls. The efforts of counsel were still less successful when applied to the judgment of Willmer, L.J. This, in my respectful opinion, is clear, correct and unanswerable and I would be content to accept the whole of it. The majority of the court was unable to establish the necessary foundation for departing from the judge's apportionment.
I would allow the appeal and restore the judgment of Brandon, J. The appellants should have their costs in this House and in the Court of Appeal.
My Lords,
I have had the advantage of reading the speeches of my noble and learned friends, Lord Wilberforce, Lord Simon of Glaisdale and Lord Edmund-Davies. I share their disquiet about the decision of the Court of Appeal in The British Aviator [1965] 1 Lloyd's Rep. 271 and I agree with them that for the reasons they state this appeal should be allowed and the judgment of Brandon, J. restored.
My Lords,
This appeal arises out of a collision in the estuary of the River Stour between two ocean-going vessels, the Thuroklint and the Koningin Juliana, on the night of 1st January 1971. The plot which accompanies this Opinion indicates the respective navigation of the two vessels leading to the collision, on the basis of the facts as found by the learned trial judge, Brandon, J .; his findings of primary fact were accepted by the Court of Appeal, and were not questioned in your Lordships' House. The plot was, indeed, used by both parties to the appeal. ("C–2" indicates the position of the vessels two minutes before the collision, and so on.)
Were it not that I venture to take a different view of this case from that which commended itself to the majority of the Court of Appeal, I would content myself with saying that I agree with Brandon J. and Sir Gordon Willmer (who dissented in the Court of Appeal) that the Thuroklint was considerably more to blame for the collision than the Koningin Juliana; and that, in any event, I consider that The Macgregor [1943] A.C. 197 demands that Brandon J.'s apportionment of blame (the Thuroklint two-thirds, the Koningin Juliana one third) should be respected. As it is, I feel that I ought to add a few words of explanation.
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Savina, The (Forest Hill)
...decision of this House in The Macgregor [1943] A.C. 197 re-affirmed and followed as recently as last year in The Koningin Juliana [1975] 2 Lloyd's Rep. 111. 11The proceedings arose as the result of a collision in the roadstead at Ras Tanurah in the Persian Gulf. The vessels concerned were......