A. R Appelqvist A/B v The Cyprian Coast (Owners); (The Arabert (No 2))
| Jurisdiction | England & Wales |
| Date | 1961 |
| Year | 1961 |
| Court | Probate, Divorce and Admiralty Division |
Shipping - Limitation of liability - Wreck raising - Wreck-raising expenses payable by sunken vessel to harbour authority - Whether “damage to” vessel includes more than physical damage - Whether “loss or damage … to property or rights” - Right of vessel at fault to limit liability for damages in respect of expenses -
On December 23, 1955, the plaintiffs' vessel Arabert and the defendants' vessel Cyprian Coast came into collision in the port of Newcastle, and the Cyprian Coast sank. In the exercise of their statutory powers, the Tyne Improvement Commission served the defendants with a notice that the Cyprian Coast was, or was likely to become, an obstruction or danger to the River Tyne, and stating their intention to take possession of and to raise, remove or otherwise to dispose of the vessel. The commission had the vessel raised and handed her over to the defendants for removal and dry-docking for repairs, against the defendants' undertaking to repay all costs incurred by the commission.
The collision was found to have been caused by the negligent navigation of the Arabert and the plaintiffs claimed to be entitled to limit their liability for damages payable to the defendants, including the expenses of raising the Cyprian Coast. The defendants did not dispute the plaintiffs' right to limit their liability for damages, except in relation to the wreck-raising expenses, and the sole question was whether such expenses were damages within the meaning of section 503 of the Merchant Shipping Act, 1894,F1 and/or of section 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900F2:—
Held, that the word “damage” in section 503 (1) (d) of the Merchant Shipping Act, 1894, included pecuniary as well as physical damage, and that, therefore, the plaintiffs were entitled under that section to limit their liability in respect of the expenses of raising the Cyprian Coast.
Held, further, that the wreck-raising expenses were also a part of the “loss or damage … to property or rights” caused to the Cyprian Coast by the negligent navigation of the Arabert within the meaning of section 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900.
ACTION for limitation of liability.
On December 23, 1955, in the port of Newcastle, the plaintiffs' vessel Arabert and the defendants' vessel Cyprian Coast came into collision, as a result of which the Cyprian Coast sank in the vicinity of No. 7 berth in the harbour.
On December 28, 1955, the Tyne Improvement Commission served the defendants with a notice, in exercise of their powers under the
In fact the commission had the wreck raised by contractors and on February 3, 1956, handed her over to the defendants for removal and dry-docking in the Tyne for the purpose of repairs against their undertaking to repay all costs which the commission might have incurred, including the remuneration of the contractors employed to carry out the work.
At the trial of the collision action, Willmer J. held, on April 21, 1958, that the Arabert was wholly to blame for the collision, and his decision was upheld by the Court of Appeal on February 24, 1959.
In the present action, there was no dispute as to the plaintiffs' liability to pay damages, including the expenses of raising the wreck of the Cyprian Coast, nor was there any dispute as to the plaintiffs' right to limit their liability in respect of the damages, except in relation to the wreck-raising expenses, which amounted to £36,323 8s. 6d. The sum of all the claims on behalf of the Cyprian Coast exceeded £100,000, and the limitation fund amounted to £19,118 16s.
J. V. Naisby Q.C., A. A. Mocatta Q.C. and H. V. Brandon for the plaintiffs.
Roland Adams Q.C. and G. N. W. Boyes for the defendants.
The following cases were cited in argument, in addition to those referred to in the judgment: Workington Harbour and Dock Board v. Towerfield (Owners)F3; Dee Conservancy Board v. MacConnellF4; The EllaF5; The UnitiaF6; Tyne Improvement Commissioners v. Armement Anversois S.A. (The Brabo)F7; The MostynF8; River Wear Commissioners v. Adamson.F9
March 27. LORD MERRIMAN P. stated the facts and continued: Before I leave the pleadings I ought to mention that in addition to a defence in this action in which the right to include the wreck-raising expenses in the limitation claim was denied, the Cyprian Coast put forward a counter claim for £30,593. I confess that I had not perfectly comprehended how this counter claim arose before Mr. Adams, during the argument for the plaintiffs, announced its abandonment. At the same time he clarified the position further by agreeing that the question of limitation in relation to the wreck-raising expenses could be dealt with on the admitted basis that in the collision action the Cyprian Coast is entitled to recover these expenses as part of her damages, thus leaving open the sole question whether such expenses are damages within the meaning of section 503 of the Merchant Shipping Act, 1894, and/or section 1 of the Act of 1900. He most helpfully clarified the position further by saying that the answer to this question depended upon whether The UrkaF10 was rightly or wrongly decided by the Court of Session.
I agree with Mr. Adams that this ultimately is the question; but I agree with counsel on both sides, who have helped me greatly with their arguments, that it is necessary to examine the background of statute law and case law before dealing with that ultimate question.
One must begin with the pleadings in the collision action.
The plaintiffs were the owners of the Cyprian Coast, her master and crew claiming in respect of lost or damaged effects, and the owners of the cargo laden on board her. I need not distinguish between these several claims, but will refer, comprehensively, to the ship and her owners throughout. The statement of claim alleges that the plaintiffs had suffered damage by reason of a collision between the Cyprian Coast and the Arabert, which collision was solely caused by the negligent navigation of the Arabert; but the particulars of negligence need not be repeated here. In the details of the collision it is alleged that the Arabert with her stem and starboard bow struck the port side of the Cyprian Coast forward of amidships at an approximate angle of about 60 degrees leading forward on the Cyprian Coast, damaging her so severely that she very shortly afterwards sank. By the defence and counter claim it was alleged on behalf of the Arabert that the Cyprian Coast with her port side about amidships struck the stem of the Arabert at about a right-angle or a little less, leading forward on the Cyprian Coast, causing damage.
As already stated, Willmer J. held that for the collision so caused the Arabert was wholly to blame, and that decision was upheld in the Court of Appeal.
At the risk of undue prolixity I have set out these extracts of the pleadings in some detail to emphasise the point that, as is common in a collision case, the cause of action is negligent navigation causing damage. The nature of the claim will be seen later to be of cardinal importance.
The assessment of damages was referred for determination by the registrar and merchants. Meanwhile, this present action was brought and the position of the plaintiffs and defendants is, as usual, reversed. The plaintiffs rely on the admitted fact that the Arabert has been held solely to blame for the collision, and on the further admission, already referred to, that the Cyprian Coast will be entitled to recover as one head of the damages the wreck-raising expenses which she has incurred in connection with raising her from the bed of the harbour.
At first sight it would seem to be a simple proposition that when a wrong-doer has by negligence sunk another ship in a harbour, thereby making the owners of the innocent victim liable to the expense of clearing the harbour of the wreck, the expenses of so doing, whether incurred directly by the owners of the sunken vessel or indirectly through the interposition of the powers of the harbour authority in respect of wreck-raising, should be payable as special damages reasonably or probably arising from the negligence; and if these expenses are rightly included as damages against the wrong-doer it would seem to follow automatically that the latter is entitled to limit his liability in respect of that head of damage as well, for example, as for the costs of repairing the injured vessel when raised. Indeed, seeing that a ship at the bottom of a harbour cannot very well be repaired in situ, it would seem to be absurd, on the face of it, that the cost of repairs should be recoverable and should be the...
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