Rederij Erven H. Groen v The England (Owners) (Alletta, Andre, England)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE CAIRNS,SIR GORDON WILLMER |
| Judgment Date | 28 March 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0328-3 |
| Date | 28 March 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0328-3
Lord Justice Megaw
Lord Justice Cairns and
Sir Gordon Willmer
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Mr. Justice Dunn (Q.B. Division, Admiralty Court)
MR. B. SHEEN, Q.C. and MR A. CLARKE (instructed by Messrs. Ince & Co.) appeared on "behalf of the Appellants (First Defendants).
MR. J. WILLMER, Q.C. and MR A. STEWART-RICHARDSON (instructed by Messrs. Bentleys, Stokes & Lowless) appeared on behalf of the Respondents (Plaintiffs).
(As Revised)
This is an appeal from the judgment of Mr. Justice Dunn delivered on 7 February, 1972, in which he held that the Plaintiffs, who are the successors in title to the owners of the vessel "Alletta", are entitled to limit their liability under sec.503 of the Merchant Shipping Act, 1894, as amended. The First Defendants are the owners of the vessel "England", which was in collision with the "Alletta". Thereafter there were collisions involving other craft, the owners whereof are also Defendants in the limitation action.
It is, I hope, possible, without doing injustice to the contentions of the parties, to state the relevant facts with reasonable brevity, for there is, I believe, one issue only which has to be decided in this part of the appeal, and, however difficult it may be to decide, it can, I think, be relatively simply stated. Before I state it, however, I should give, as concisely as I can, what appear to me to be the relevant facts.
The collision occurred in the River Thames during the hours of darkness in the early morning of 20 December, 1963 The "Alletta", a vessel of 50C tons, had been loading a cargo at Ford's jetty at Dagenham. In the ordinary course she would have finished loading and would have sailed at about 6 a.m. It was contemplated that arrangements would then be made for a Trinity House pilot to take the vessel downriver. Unexpectedly, loading finished before 3 a.m. The master of the "Alletta", Capt. Snieder, was urgently requested to move her from the jetty to make room for another vessel, lie agreed. Without a pilot he moved the vessel, intending to proceed to an anchorage in the river less than two miles from the berth, where he would await a pilot. The "Alletta" was facing downriver with herportside to the jetty. Capt. Snieder failed to keep a proper lookout, which would have showed that the "e was traffic in the river, including the "England.", which would "be endangered if he were to embark on or carry out his contemplated manoeuvre. He failed to give the single whistle signal required by the Port of London River Byelaws before moving away from the jetty. He turned to starboard, across the river, intending to cross to the other side, and, as I understand it, head upstream to the anchorage. In so doing he failed to give the whistle signal required by the byelaws for that turning manoeuvre.
Mr. Justice Hewson, in the subsequent collision action, held that the "Alletta" was 80% to blame and the "England" was 20% to blame. Mr. Justice Hewson's reasons are fairly summarised by Mr. Justice Dunn in the judgment now under appeal as follows. I read at page 6-F/G of the transcript:
"Mr Justice Hewson held that the 'Alletta' was to blame for the collision, firstly, in failing to keep a proper lookout before she turned from Ford's jetty on the north side of the river to starboard across the river. Secondly, because of breaches of the Fort of London Byelaws, including failing to indicate by the appropriate whistle signals that she was about to turn to starboard".
The owners of the "England", in that collision action, appealed to this court, which affirmed the judgment of Mr. Justice Hewson, as I understand it for the same reasons as had been given by the learned judge.
Although the "Alletta" had been to the Fort of London many times, and in particular had worked to Dagenham twice a week from some Dutch port, probably Ijmuiden, during the two months preceding the casualty, with Capt. Snieder as master, there was not, on board the vessel, a copy of the Fort of London River Byelaws. As Mr. Justice Dunn records in-his judgment, at page 7-E:
"Capt. Snieder told me in cross-examination that he did not know the appropriate whistle signals in the River Thames and had never seen the byelaws. He agreed that if he had had the byelaws on board, he could have read the signals".
As is now agreed, though apparently it was acutely in issue in the collision action, the "Alletta", being under 3,500 tons, and being engaged in the home trade, was not subject to compulsory pilotage in the River Thames. However, Capt. Snieder thought that he was so subject, except that he was free, so he thought, to move the vessel without a pilot for a distance of less than two miles. On every occasion on which the "Alletta", under Capt. Snieder, had previously visited the Port of London, he had had a pilot.
On these simple facts the Defendants say that there was actual fault on the part of the then managing owner of the "Alletta", Mr. Hendrikus Groen. Unfortunately Mr. Groen died in 1965o The judge refers, in his judgment, to Mr. Groen's advanced age and ill health at the time of this casualty. I do not think anything turns on such matters. The case, whether or not there was actual fault on the part of the person in the position of managing owner, required objective assessment. It is neither to be held in favour of or against Mr. Groen, in this context, that he was an old and sick man.
The essence of the Defendants' case, contesting the right to limitation on the part of the owners of the "Alletta", is that Mr. Hendrikus Groen was guilty of fault, in that he had made no attempt to see that the Port of London River Byelaws were on board the "Alletta", trading, as she had been, to the port regularly for two months immediately prior to the casualty: so that the master would, as a competent master, be able to, and therefore be expected to, have familiarised himself with all relevant matters in those rules, and, in particular, those rules, such as the signal rules, which vitally affect the safety of this and other vessels using the River Thames. If the managing owner's duty did not extend as far as an obligation to see that the byelaws were on board the "Alletta" it was, say the Defendants, at least the duty of the managing owner to have given the master instructions which, whether they had been general instructions or had been specific instructions in relation to this course of regular trading to London, would have brought it home to the master's mind clearly and unambiguously that it was his duty to have the byelaws on board available to him; or, at the very least, that he must not navigate the "Alletta" in the port without a pilot unless he had familiarised himself with the relevant signal rules incorporated in the byelaws. Mr. Hendrikus Groen had done none of those things; or, at least, the Plaintiffs wholly failed to prove that he had done any of those things.
In my view, having seen the byelaws, it was obvious that it would be, at the lowest, highly unwise for any master of a vessel such as the "Alletta", whether or not she was at all times subject to compulsory pilotage, to allow his vessel totrade regularly to the Port of London without having, in his possession, a copy of the byelaws, and without having familiarised himself with at least a substantial part of the contents of the byelaws. I doubt whether the Plaintiffs really seriously challenge that view.' Their case is, in substance, that the managing owner was entitled to assume that the master would, without specific orders or instructions to that effect, do what was necessary to familiarise himself with such matters set out in the byelaws as it was requisite for him to know; and, in particular, that he would not navigate the vessel at any time in the Port of London without a pilot unless he had so sufficiently familiarised himself, whether from the book of byelaws or from some other proper source.
I pause here to say that, in this court, it is submitted on behalf of the Plaintiffs that there was on board the "Alletta" at all material times a copy of the North Sea Pilot, referred to as the "blue book"; and it is said that book gave, the master, if he chose to study the relevant pages, sufficient information at any rate as to the relevant signals. It is to be observed that one of the signals which ought to have been given, and was not given, by Capt. Snieder preceding the casualty, is not recorded in the blue book. It is unsatisfactory, I am afraid, if that point was to be taken, that there is no evidence that the blue book was on board the "Alletta"; but I am prepared to assume - and I think counsel for the Defendants agreed it was proper for this court to assume for present purposes - that there was a copy on boards despite the lack of evidence. In my judgment it is clear that the blue book was not ah adequate substitute, and a competent owner would have so realised. Among other things, the blue book expressly says,at the outset of Its synopsis of some of the contents of the byelaws, "a copy of which" - that is, the byelaws - "should be obtained on arrival in the port".
I now turn briefly to the law. Counsel provided us with many interesting citations of extracts from a considerable number of limitation cases decided on widely differing facts. With respect, I think it is sufficient, for this case, to refer to one...
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