Re Polemis and Furness, Withy & Company

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date15 Jul 1921

Court of Appeal

Bankes, Warrington and Scrutton, L.JJ.

Polemis v. Furness, Withy, and Co. Limited

Rigby v. HewittENRENR 5 Ex. 243 5 Ex. 240

Greenland v. ChaplinENR 5 Ex. 248

Smith v. London and South-Western, Railway Company 23 L. T. Rep. 680 L. Rep. 6 C. P. 21

Cory v. France, Fenwick, and Co.DID=ASPMELR 11 Asp. Mar. Law Cas. 499 103 L. T. Rep. 649 (1911) 1 K. B. 122

LondonELR 12 Asp. Mar. Law. Cas. 405 109 L T. Rep. 960 (1914) P. 76

Weld-Blundell v. Stephens 123 L. T. Rep. 599 (1920) A. C. 983

Burrows v. March Gas and Coke CompanyENR 26 L. T. Rep. 318 L. Rep. 7 Ex. 96

Hill v. New River CompanyENR 18 L. T. Rep. 355 9 B. & S. 303

Blyth v. Birmingham WaterworksENRENR 1856, 11 Ex. 781 11 Ex. 781

Sharp v. Powell 26 L. T. Rep. 436 L. Rep. 7 C. P. 253

Steinman v. Angier LineDID=ASPMELR 7 Asp. Mar. Law Cas. 46 64 L. T. Rep. 613 (1891) 1 Q. B. 691

London Joint Stock Bank v. Macmillan 119 L. T. Rep. 387 (1918) A. C. 777

Charter-party — Exceptions —‘Fire … always mutually excepted’

Dictum, of Pollock, C. B, in Greenland v. Chaplin (1850, 5 Ex. 248) disapproved.

398 MARITIME LAW CASES. CT. of App.] POLEMIS V. FURNESS, WlTHY, AND Co. LIMITED. [CT. OF App. July 7, 8, and 15, 1921. (Before Bankes, Wahiungton and Sckctton.L.JJ.) POLEMIS V. FlIKNESS, WlTHY, AND Co. LIMITED, a) APPEAL FROM THE KINO'S HENC1I DIVISION. Charier-party- - Exceptions - " Fire . . . always mutually excepted" - Fire caused by negligence of cliarlerers' servants - Damages which could not reasonably have been anticipated - Liability of charterers - Negligence - Remoteness - " Natural and probable cause." In a time charier-party "fire " was " always mutually excepted.'''' Fire broke out in the ship, which was totally destroyed. Arbitrators found that the fire arose from a spark igniting petrol vapour intheliold ; that the spark was caused by a board, knocked into the hold by the charterers'' servants, coming into contact with some substance in the hold ; and that the causing of the spark could not reasonably have been anticipated, though some damage to the ship might reasonably have been anticipated. The charterers contended: (1) That the exception of "fire" in the charter-party protected them from liability ; and (2) that the damages were too remote, as it could not reasonably have been anticipated that the. falling of the board would have caused a spark : Held (1), that the exception of "fire " did not relieve the charterers from loss by firecaused by the negligence of their servants as there was no express term to that effect in the exceptions clause; and (2) that, the. fall of the board being due to the negligence of the charterers' servants, the charterers were liable for all the direct corsequences of the negligence, noiudth-sta.nding tliat the consequences could not reasonably have been anticipated. The question whether the damage that ensues can reasonably be anticipated is material only on the question whether an act is negligent or not. Dictum, of Pollock, C.B, in Greenland v. Chaplin (1850, 5 Ex. 248) disapproved. Appeal by the charterers from the judgment of Sankey, J. on an award in the fornvof a special case. The owners of the Greek steamship Thrasyvovlcj claimed to recover damages from the charterers for the total loss of the ship by fire. By a charter-party of Feb. 1917, Messrs. Polemia and Boyazides, the owners, chartered the ship to Furness, Withy and Co. Limited, for the period of the duration of the war and at charterers' option up to six months afterwards from the day she was placed at the charterers' disposal ready to load in the port of Cardiff. By clause 3, the owners were to provide and pay for all the provisions and wages of the captain, officers, engineers, firemen, and crew, to pay for insurance of the vessel, war risks excepted, and also for all the engine room stores, and maintain her in a thoroughly efficient state in hull and machinery for ordinary cargo service. By clause 4 the charterers were to provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions, and all other charges whatsoever, except those before stated. By clause 5, the charterers were to pay for the use and hire of the vessel at the rate of 9572Z. 16s. per calendar month commencing on the day of delivery as above with a clean and clear hold, " hire to continue from the time specified for commencing the charter until the hour of her redelivery to owners (unless lost) at a port in the United Kingdom or continent in same good order and condition as when delivered to them fair wear and tear excepted." By clause 21 : " The act of God, the King's enemies, loss or damage from fire on board in hulk or craft, or on shore, arrest and (or) restraint of princes, rulers, and people, collision, any act, neglect, or default whatsoever of pilot, master, or crew in the management or navigation of the ship, and all and every of the dangers and accidents of the seas, canals, and rivers, and of navigation of whatever nature or kind always mutually excepted." The facts appear from the headnote and judgments. The owners contended that the charterers were, liable fcr the loss of the ship ; that fire caused by negligence was not an excepted pail; and that the ship was in fact lost by the negligence of the stevedores, who were the charterers' servants, in letting a sling strike the board, knocking it into the hold, and thereby causing a spark which set fire to the petrol vapour and destroyed the ship. The charterers contended that fire, however caused, was an excepted peril; that there was no negligence for which the charterers were responsible, inasmuch as to let a board fall into the hold of the ship could do no harm to the ship and therefore was not negligence towards the owners; and that the danger and (or) damage were too remote - i.e., no reasonable man would have foreseen danger and (or) damage of this kind resulting from the fall of the board. The arbitrators made this following findings of fact : - (a) That the ship was loul, by lire. (b) That the fire arose from a spark igniting petrol vapour in the hold, (c) That the spark was caused by the falling board coming into contact with some substance in the hold. ((d) That the fall of the board was caused by the negligence of the Arabs (other than the winchman) engaged in the work of discharg, ig. (e) That tbe said Arabs were employed by the charterers or their agents the C'ie Transatlantique on behalf of the charterers, and that the said Arabs were the servants (a) Reported by W. C. Sandford, Esq., Barrister-at-Law. MARITIME LAW CASES. 399 CT. of App.] POLEMIS V. FURNESS, WlTHY, AND Co. LIMITED. [Ct. of App. of the characters (f) that the causing of thespark could not reasonably have been anticipated, (g) There was no evidence before us that the Arabs chosen were known or likely to be negligent, (h) That the damages sustained by the owners through the said accident amount to the sum of 196 1651. Is. 11d. as shown in the second column of the schedule hereto. Sankey. J. affirmed the award. The charterers - appealed. R. A. Wright, K.C. and S. L. Porter, for the charterers. - The damage caused could...

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7 books & journal articles
  • Remoteness Criteria in Equity
    • United Kingdom
    • The Modern Law Review Nbr. 65-4, July 2002
    • 1 July 2002
    ...2 para 63.12 Quinn vLeatham [1901] AC 495, 537.13 Smith New Court Securities Ltd vCitibank NA [1997] AC 254, 267 & 281.14 Re Polemis [1921] 3 KB 560 (CA) 577; South Australia Asset Management Corp vYork MontagueLtd [1997] AC 191, 216. The distinction between direct damages (trespass) an......
  • Risk and Remoteness of Damage in Negligence
    • United Kingdom
    • The Modern Law Review Nbr. 64-2, March 2001
    • 1 March 2001 be refocused upon the latter, the theory developed in this article4 As applied in Re Polemis & Furness, Withy & Co Ltd [1921] 3 KB 560.5Overseas Tankship vMort’s Dock Engineering Co (The Wagon Mound) [1961] AC 388.6In‘The Wagon Mound No 2: Foreseeability Revised’ (1967) Utah LR 1......
  • Whither Remoteness? Wellesley Partners LLP v Withers LLP
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    • The Modern Law Review Nbr. 79-4, July 2016
    • 1 July 2016 irrelevant that it is unlikely to do so with regard to mitigation26 It appears that a test of ‘directness’ akin to that in Re Polemis [1921] 3 KB 560 (CA) (overturnedin relation to the tort of negligence in Overseas Tankship (UK) Ltd vMorts Dock & Engineering CoLtd [1961] AC 388 (PC)......
  • A Life of H.L.A. Hart: The Nightmare and the Noble Dream.
    • Australia
    • Melbourne University Law Review Vol. 29 Nbr. 1, April - April 2005
    • 1 April 2005
    ...Holmes, The Common Law (1881) and Albert Kocourek, Jural Relations (2nd ed, 1928). It also included the following cases: Re Polemis [1921] 3 KB 560 and Palsgraf v Long Island Railroad, 248 NY 339 (1928). The cases were primarily from the areas of criminal law, torts and contracts. I offer m......
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