Shawinigan Ltd v Vokins & Company Ltd
| Jurisdiction | England & Wales |
| Year | 1961 |
| Date | 1961 |
| Court | Queen's Bench Division (Commercial Court) |
Shipping - London Lighterage Clause - Seaworthiness - Exemption from liability for loss or damage due to unseaworthiness - Proviso that unseaworthy barge not “recklessly” supplied - Barge unseaworthy before service - No visible defects - Barge hired by suppliers - Reliance by suppliers on reputation and experience of owners - Whether clause applicable - Whether suppliers “recklessly supplied an unseaworthy barge … at the time of the commencement of the voyage” - “Recklessly.”
By an oral contract the defendants agreed to supply a barge to the plaintiffs to carry bags of synthetic resin from a ship in London Dock to Millwall Wharf. The contract was subject to the London Lighterage Clause, which excluded liability for “any loss of or damage to goods … whether or not such loss, damage or expense be occasioned by unseaworthiness of craft or by any negligence … Provided always that the foregoing exemption excluding us from any liability arising from unseaworthiness of craft shall not apply unless we are able to establish that we have not knowingly or recklessly supplied an unseaworthy barge for the service at the time of the commencement of the voyage to the ship, wharf, or quay to load. …”
In order to carry out their contract with the plaintiffs, the defendants hired a barge from a well-known company of good standing which had let barges to them for many years without any complaint of unseaworthiness. The barge had recently undergone an overhaul, but the person who carried it out had failed to notice that a bottom plate was corroded on the internal side so that the plate was very thin and likely to be holed at any time. The lighterman who took it over for the defendants inspected it but that inspection, according to normal practice, did not include the bottom plates. Having loaded the resin, the barge returned to the dock and afterwards was found to have taken in water, as a result of which the cargo had been damaged. It was later found that there was a hole in the plating, probably due to a stone piercing the defective plate before the barge started work for the plaintiffs, so that it was then unseaworthy. It was not suggested that the defendants knew that the barge was then unseaworthy.
In an action for damages by the plaintiffs in which the defendants relied on the London Lighterage Clause:—
Held, (1) that the clause was not limited to loss or damage occasioned by unseaworthiness developing after the contractual service had begun, but that it operated to exempt the defendants from liability provided that they could establish that they had not knowingly or recklessly supplied a barge which was unseaworthy at the time of commencement of the voyage (post, p. 1211).
(2) That, on the construction of the clause, “recklessly” meant grossly careless, the doing of something which in fact involved a risk whether the doer realised it or not, the likelihood or otherwise that damage would follow being one, and the extent of the damage another, element to be considered, and the test was whether a reasonable man, knowing all the facts and circumstances which the doer of the act knew or ought to have known, would describe the act as “reckless” in the ordinary sense of the word, that was, involving a high degree of carelessness (post, p. 1214).
(3) That, in the circumstances, the defendants had discharged the onus on them of disproving any recklessness on their part, for they were entitled to rely on the good reputation and their past experience of the firm from which they had hired the barge; and that, therefore, the defendants had succeeded in establishing their exemption from liability under the clause.
ACTION.
By an oral contract, made shortly before November 23, 1957, the defendants, Vokins & Co. Ltd., who carried on the business of supplying barges and lighters for the carriage of goods on the London river, agreed to supply, for reward, a barge to carry a quantity of bagged synthetic resin owned by the plaintiffs, Shawinigan Ltd., from the vessel Rutenfjel, then lying in London Dock, to Timothy's Wharf, Millwall, where the resin was to be discharged. The contract was subject to the terms of the London Lighterage Clause, which provided:
“The rates charged by us are for conveyance only, and are exclusive of dock dues, demurrage, disbursements, or other charges. They are quoted upon the express condition that the person with whom any contract is made is either the owner or authorised agent of the owner of the goods intended to be carried, and accepts both for himself and for all other parties interested in such goods the terms and conditions herein contained. The goods are carried only at owners' and/or customers' risk, excepting loss arising from pilferage and theft of goods on board the barge whilst in course of transit, liability for such loss or damage being limited at our option to £20 per package or unit or to £50 per ton. Save as aforesaid we will not be liable for any loss of or damage to goods entrusted to us for lighterage or for any loss, damage or expense occasioned to the owners of the goods or to the customers, howsoever, whensoever or wheresoever such loss, damage or expense be occasioned, and whether or not such loss, damage or expense be occasioned by unseaworthiness of craft or by any negligence, wrongful act, or default of our servants or agents, or other persons for whose acts we might otherwise be liable, or be occasioned by any delay or failure in collecting, carrying or delivering the goods and although the barge for any reason may have deviated or departed from the intended transit with the goods and although the goods may have been loaded in the barge with other goods: Provided always that the foregoing exemption excluding us from any liability arising from unseaworthiness of craft shall not apply unless we are able to establish that we have not knowingly or recklessly supplied an unseaworthy barge for the service at the time of the commencement of the voyage to the ship wharf or quay to load. We will not be liable to contribute in general average. We will not be responsible for any consequences arising from strikes, lock-outs, or other labour difficulties. We are to be at liberty to employ any lighter, tug or vessel belonging to other owners or to sub-let the whole or any portion of the contract and in either event the above terms and conditions shall apply to such employment or sub-letting and shall be deemed to have been agreed between the goods' owners or customer and such other owners or subcontractors.”
The defendants owned a number of barges and also very frequently hired barges from other barge owners to enable them to carry out their current operations. The barges were hired on a daily or on a period basis, and the defendants were lawfully entitled under the contract to provide hired barges to their customers. On this occasion the defendants hired the barge Otter from Charles Hay & Son Ltd. (Hays), a company of long standing and good reputation in the Port of London, which had let barges to the defendants for many years without any complaint of unseaworthiness. Hays incorporated in their contract of hiring a clause, invariably used in the letting of barges in the Port of London, in the following terms:
“The letters, Charles Hay & Son Ltd., hereby give notice that they will not be liable for the consequences of any defect, whether patent or latent, in their barges or the gear belonging thereto existing at the time of hiring or subsequently appearing therein. Hirers must, therefore, satisfy themselves by examination upon taking possession that the barge and gear are fit and safe for the purposes for which they desire to use them. …”
Otter was at least 39 years old in 1957. In early November, 1957, she had had a general ovehaul at Hays' yards at Rotherhithe. In carrying out this overhaul the persons responsible in Hays had failed to notice that a plate in the bottom had been badly corroded on the internal side, so that an area of the plate was dangerously thin and liable to be holed at any time. Thus, the barge came away from its general overhaul in an unseaworthy condition. The barge lay for some days with Hays before she was taken over by one Collard, a lighterman, who gave her a general inspection, which, according to normal practice, did not include an inspection of the bottom plates.
On November 25, the barge was loaded from the vessel Rutenfjel with the resin. At that stage the barge was still dry. On November 27, when the lighterman returned to the barge, he found that a considerable quantity of water had been taken in, and that the cargo of resin was damaged. It was later found that there was a hole in the plating which was caused by a stone. It was probable that the stone had pierced...
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