Re POLEMIS
| DOI | http://doi.org/10.1111/j.1468-2230.1951.tb00215.x |
| Date | 01 October 1951 |
| Published date | 01 October 1951 |
THE
MODERN
LAW
REVIEW
Volume
14
~
October
1951
No.
4
I
HAVE
felt a personal interest in this case for the last thirty years,
since
I
argued it unsuccessfully before a Court of Appeal of great
eminence which wisely rejected the contentions
I
advanced with the
support of my then junior counsel (now Lord Porter). The gist
of
the decision was put in a nutshell by
Mr.
Justice Oliver Wendell
Holmes in a letter to his friend Sir Frederick Pollock,’ the former
approving the decision, the latter contesting it. The words of the
Justice were
‘
The tort once established, the tortfeasor takes the
risk
of
consequences
’.
There have been from time to time voices criticising
or
at least
doubting the rule, and recently my friend
Mr.
Philip Landon has
suggested that it might help teachers of law at the Universities if
I
were able to write an essay summarising the history
of
the doctrine
before and after
1021
and the conflicting points
of
view.
It
is now
sufficiently recognised that teachers of law have a great function in
helping to explain and define the law and in influencing the ideas
of the young entries. As a freelance in law,
jam
rude
donatus
I
was willing to help.
I
had prepared this essay with Landon’s help
and criticism, though
I
take sole responsibility for its contents,
when a decision was reported last March, entitled
Thttrogood
v.
Van den Rerghs
S;
Jurgens
Ltd.,2
in which the Court
of
Appeal,
Cohen, Asquith and Birkett L.JJ., held unanimously that
Re
Polemis
had not been overruled
‘
or
its binding character,
so
far as
this court is concerned, in any degree shaken
’.
Asquith
L.J.,
delivering the judgment of the court on this point, added
‘
this is all
that is necessary
or
proper to say here
’.
The case involved some
important and dificult separate
Faints
as to liability on other
issues on which the court reversed the decision of the Judge. Leave
to appeal to the House of Lords was granted. When
I
read this
decision,
I
felt some anxiety whether
I
should proceed with the
publication
of
this essay since an .authoritative ruling of the House
of
Lords would render observations
of
mine otiose. But on the
whole
I
reflected that some time must in any case elapse before the
House could give judgment and in any case the House might again
find it unnecessary to decide the question,
so
I
have thought it best
to
send my essay for publication for what it is worth.
1
Holmca-Pollock
Letterr,
Vol.
11, 83.
2
[1951]
1
T.L.R.
668.
393
VOL.
14
26
394
THE
MODERN
LAW
REVIEW
VOL.
14
Re
Polemis.3
came before the
court
on an award in the
form of a special case. The claimants were the owners of the Greek
steamship
Thrusyboiilos
and the respondents, Furness Withy
&
Co.,
were time charterers. While engaged on the service she was in
Casablanca and it became necessary to shift a large number of tins
of petrol in the hold. The stevedores, who were servants of the
charterers, by their negligence allowed a heavy board to fall from
the hatchway into the hold, which caused
(so
the arbitrators said)
a spark, igniting petrol vapours in the hold and resulting in a fire
which destroyed the vessel.
So
far the findings and conclusions
seemed to offer no problem, but debate has centred round a further
finding
‘
(f) That the causing of the spark could not reasonably
have been anticipated from the falling of the board, though some
damage to the ship might reasonably have been anticipated
’.
Reasonable anticipation does not mean anybody’s anticipation in
fact but
is
notional and a question
for
the court, but that may
for
the moment be disregarded. The arbitrators, experienced on these
questions, held the charterers liable for the damages,
f
190,165
1s.
lld.
They accepted the shipowners’ contention that the ship was lost by
the negligence of the charterers’ stevedores and they rejected their
contention that the damages were too remote as ‘no reasonable
man would have foreseen danger and/or damage of this kind
resulting from the fall of the board
’.
It
was this issue on the
measure of damage which has largely engaged the attention of the
court: the negligence on which the liability depended was not in
dispute.
I
may note in passing that Professor Goodhart in his
valuable essay on the
Palsgraf
Case4
says that the finding is
obviously incorrect
for
it ought reasonably to have been foreseen
that the dropping of a plank might in the circumstances cause an
explosion
of
petrol vapour, and he adds that garages have been
destroyed by fire
so
caused. However
it
is
clearly found that the
ship was destroyed by the negligence of the charterers’ servants:
the tort being established, then, according to
Mr.
Justice Holmes’
language, the charterers were liable for the consequence, which was
the
loss
of the vessel.
I
do not think it necessary to distinguish between contract and
tort in this connection. In
The
Liesbosch
the House
of
Lords
described
Re
Polemis
as a case in tort of negligence though it
might be regarded also in the alternative as based on breach
of
contractual duty under the charterparty. But the measure of
damage would in this case be the same,
‘
The dominant rule of
law
’,
it was said,6
‘
is the principle
of
restitutio in integrum, and
subsidiary rules can only be justified
if
they give effect to that rule.’
This no doubt must be qualified by applying where necessary the
principle of remoteness of damages and similar rules. The charter-
party contained here no stipulation relevant to the actual occurrence.
J
[1’jL11
3
K.B.
660.
6
[1933]
A.C.
449
at
461.
4
Essays
in
Jurisprudence,
46.
8
IAC.
cit.
at
463.
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