Riverstone Meat Company Pty. Ltd v Lancashire Shipping Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS |
| Judgment Date | 26 November 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J1126-2 |
| Court | Court of Appeal |
| Date | 26 November 1959 |
[1959] EWCA Civ J1126-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Morris
Lord Justice Ormerod and
Lord Justice Willmefr
MR ASHTON ROSKILL, Q.C. and MR J.F. WILLMER (instructed by Messrs Clyde & Co.) appeared as Counsel for the Appellants.
MR A.A. MOCATTA, Q. C. and MR MICHAEL KERR (instructed by Messors Botterell & Roche) appeared as Counsel for the Respondents.
: On the 7th May, 1953, a number of cases of canned ox tongues were shipped in good order and condition on board the s.s. "Muncaster Castle" at Sydney. The ship belonged to the Respondents - Lancashire Shipping Co. Ltd. The goods were shipped for carriage to London. They were stowed in the after part of No.5 lower hold. They were shipped under a bill of lading signed at Sydney on the 7th May, 1953. The goods belonged to the Appellants, Riverstone Moat Co. Pty. Limited, who, either as original shippers or as endorsees, were parties to the bill of lading. It was a term or condition of the bill of lading that it should have effect subject to the provisions of the Rules in the Schedule to the Australian Sea Carriage of Goods Act 1924 as applied that Act. The carriers were to be entitled to all the privileges, rights and immunities contained in that Act and its Schedule as if the same were specifically set out in the bill of lading.
The ship arrived in London on the 12th July 1953. On the 16th july it was found that there was some water in No.5 hold. No water had previously been detected. It has been held by the learned Judge that sea water had entered No.5 hold by way of defective storm values on the port and starboard sides of that hold, there being one valve on each side. when the appellants' goods were discharged it was found that 113 cases, out of a total of 150, were damaged by the sea water that had entered the hold. The appellants made a claim for the damage to the goods. The amount of their loss, £974. Los, 3d., was not in disputer, The appellants alleged that their loss:as caused because the ship was unsea-worthy. One respect in which unseaworthiness was alleged was that the inspection covers over the storm values in the port and starboard scupper pipes situated in the forward frame space of No.5 hold were defective, whereby sea water leaked into the hold. Other allegations of unseaworthiness were made at the trial with which we are not now concerned. In the result, after a careful investigation, the learned Judge held that the vessel was unseaworthy in that at the time when the appellnts' cargo was loaded at Sydney the nuts on the inspection covers were lease to such an extent as would permit of water finding its way into the hold. The respondents said, however, that they could exonerates themselves by reason of the contractual term contained in the bill of lading giving them similar protection to that given by the Schedule to the Australian Sea Carriage of Goods Act 1924. Article III(1) of such Schedule provides as follows: "The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip, and supply the ship; (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation." Article III(2) provides: "Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried". Article IV(1) provides as follows: "Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section".
The question, therefore, arose at the trial whether the respondents could discharge the: burden of proving that there had been no want of due diligence on their part to make the ship sea-worthy. They had contractually bound themselves so that, before and at the beginning of the voyage from Sydney, which commenced when the vessel first left Sydney after the 7th May, 1953, they were under obligation to exercise due diligence in certain respects which included exercising due diligence to make the ship seaworthy. In fact, as has been held by the learned Judge, and as is not now challenged, the vessel was not seaworthy on the 7th May, 1953. She was unsea-worthy because the inspection covers were in the condition to which). I have referred. The appellants" loss did in fact result from such unseaworthiness. The learned Judge had, therefore, at the trial to investigate whether the respondents had exercised due diligence to make the ship seaworthy. The thus was on them to establish that they had. The very nature of the enquiry involves that the exercise of due diligence to make a ship seaworthy may not always bring it about that a ship is -seaworthy.
The conclusions of fact reached by the learned Judge were not the subject of dispute or complaint upon the hearing of the appeal. When it is being considered whatever due diligence to make a ship seaworthy has been exercised it may be helpful to ascertain the history and the record of the ship and then to proceed to consider (inter alias) whether there have been such steps and such procedures as a prudent and careful carrier would take and follow.
It will, I think, be convenient to summarise the main conclusions of fact which were recorded by the learned Judge.
The ship was acquired by the respondents in the year 1949. She had been built in the United States of America during last ware. She was originally completed as an aircraft can and was converted into a cargo carrier in 1948: so converted conformed in all material respects to a C.3 type cargo vessel.
On conversion she was classified with the British Corporation (which was united with Lloyds' Register in 1949) and remained classified at all material times, Her tonnage was 8,000 gross 4,800 net.
2. Throughout her service with the respondents, which until 1955, she was well maintained
3. In February 1953, which was immediately before the ship set out for Australia, she was passed through her No.2 special survey by Lbyds' Register Surveyors. The ship was placed in the hands of Alexander Stephen & Sons Ltd. at Glasgow. She want into dry dock. Her class of registration was the highest for ships that had not been built under the supervision of the Society, and after the survey she was reported to be "so far as soon in good condition and eligible to remain as at present classed in the Register Book".
4. On the same occasion she was passed through her annual line survey. After the inspection by the Surveyor to Lloyds' Register, he certified that the arrangements on board the ship in agreement with or equivalent to The se given in the original freeboard report and he verified the freeboard marking.
5. Under rules made under Section 42 of the Merchant Shipping (Safety and Load Line Conventions) Act 1932, provision is made the examination at the annual survey of the discharges leading the ship's side from spaces below the freeboard deck.
In practice Lloyds' surveyors are content if 25 percent, of the sea outlets are opened up for inspection on the annual survey but in fact the respondents insist that they should all be opened up.
6. Mr Atkinson, of moller Line U.K. Ltd., the managers of ship, was attending to the ship on behalf of the respondents the surveys. Mr Atkinson is an experienced and component superintendent. In compliance with the practice of the, respondents, Mr Atkinson instructed Alexander Stephen & Sons, Ltd. open up all the storm values on the ship for inspection. They numbered 31 in all, including the two which were positioned in No.5 hold. The opening of the storm values necessarily involved opening up the inspection covers. That was done.
7. After the inspection by the surveyor to Lloyds' Register it become the duty of a fitter employed by Alexander Stephen & Sons Ltd. to replace and close the inspection covers, The covers are placed over the studs which are in the top of the inspection and nuts are placed in position. The nuts should then be tightened at opposite angles to ensure over all round pressure If the nuts on one side are both tightened up before there is any tightening on the other side, the pressure will be uneven and it will be impossible to make a secure joint. This will be so even Though the nuts ring true if, after being tightened up, they are tapped with a sapannor
8. The task of tightening up the nuts, when an inspection is replaced, is one that is well within the competence of a fitter. It is ordinary and prudent practice to leave task to a fitter and not to have the supervision either of Lloyds' surveyors or of the owners' superintendent.
9. Once the, nuts have been tightened up no visual inspection detect any unevenness in the positioning of the cover or any in tightening up.
10. Alexander Stephen & Sons Ltd. are a ship repairing of the highest repute.
11. The ship sailed from Glasgow on the 15th March 1953 a general cargo for Australian ports. The cargo stewed in after half of No.5 hold was discharged at Sydney. None of the carried on the outward voyage in...
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