Smith, Hogg & Company Ltd v Black Sea and Baltic General Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Wright,Lord Porter |
| Judgment Date | 24 June 1940 |
| Judgment citation (vLex) | [1940] UKHL J0624-2 |
| Date | 24 June 1940 |
| Court | House of Lords |
[1940] UKHL J0624-2
Viscount Maugham
Lord Atkin
Lord Wright
Lord Romer
Lord Porter
House of Lords
After hearing Counsel for the Appellants, as well on Thursday the 11th, as on Monday the 15th and Tuesday the 16th, days of April last, upon the Petition and Appeal of Smith Hogg and Company, Limited, of Victoria Terrace, West Hartlepool, in the County of Durham, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 12th of May 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of The Black Sea and Baltic General Insurance Company, Limited, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 12th day of May 1939, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I had prepared an Opinion on this Appeal before I had the advantage of reading the Opinions of my noble and learned friends Lord Wright and Lord Porter. I find in those Opinions all the remarks which I had proposed to address to your Lordships and in order to save your Lordships' time I merely say that I agree with those Opinions and with the necessary conclusion that this Appeal must be dismissed with costs.
My Lords,
My noble and learned friend Lord Atkin requests me to say that he has read in print the Opinion which I am about to deliver and agrees with it.
My Lords,
The Appellants, who are owners of the steamship "Lilburn," claimed in the action a general average contribution from the Respondents who for purposes of the case are treated as standing in the shoes of the charterers, Exportles Moscow, under a charter-party dated 24th July, 1935. The Respondents resisted the claim on the ground that the "Lilburn" was unseaworthy on sailing from the loading port Soroka and that the Appellants had not exercised due diligence to make her seaworthy and that the average act was occasioned by the unseaworthiness, as also was the loss of and damage to cargo for which they counter-claimed. Branson J. who tried the case in the Commercial Court decided in favour of the Appellants, but his decision was reversed by the Court of Appeal.
Both Courts decided that the steamship was unseaworthy on sailing and that the Appellants had not exercised due diligence to make her seaworthy. But whereas Branson J. held that the unseaworthiness did not cause the loss, the Court of Appeal held that the cause of the disaster was the unstable and unseaworthy condition of the vessel, which was due to a failure to exercise due diligence.
There are thus concurrent findings on the fact of the unseaworthiness. This House is not debarred from re-opening, and, if so advised, reversing, concurrent findings of facts of the Courts below, though the House will always treat such findings with respect. In the present case I have, after carefully considering the evidence, come to the conclusion that there is no ground for differing from the findings of the Courts below. I shall state very shortly why I agree with these findings. The charter-party provided for the loading at Soroka of a full and complete cargo of wood goods, including a deck load not exceeding what the vessel could reasonably stow and carry, to be delivered at Garston. Of the other conditions contained in the charter-party it is only necessary to refer to certain exceptions set out in Clause 12, in particular that the shipowner should not be liable for loss or damage resulting from unseaworthiness unless caused by want of due diligence on the part of the shipowner to make the vessel seaworthy; and also that the shipowner should not be responsible for loss or damage arising from (amongst other things) act, neglect or default of the Master in the navigation or management of the ship or from perils, dangers and accidents of the sea. General average, if any, was to be settled in London according to the York-Antwerp Rules, 1924, in accordance with English Law.
The "Lilburn" loaded at Soroka 703,111 St. Petersburg standards of timber, of which 255,232 were on deck. The Master shut out about nine standards, because, as the Judge found, instability had already manifested itself by the vessel listing about 5 degrees to port during the loading of the last few slings of cargo. The "Lilburn" sailed with that list. On sailing she had no appreciable metacentric height; indeed she had it seems a small negative metacentric height. The weather on the voyage was not exceptional, the highest force of wind being force 7 on two days. But as the voyage went on the port list increased to 8 or 9 degrees, and two days after that happened she went over to starboard with a list of 7 degrees, which increased to 12 degrees, then to 15 and then to 17 degrees, which was her condition when she put into Stornoway to replenish her bunkers, of which she had then only four tons left. She had started from Soroka with insufficient bunkers and was in that respect unseaworthy but no point has been made of this and I ignore it. On entering Stornoway to coal, the forepeak was pumped out, as she was considerably down by the head. That obviously would increase her tenderness. In order to bunker she was moored with her port side alongside a coal hulk. No deck cargo was removed before bunkering. When about 16 tons had been put into her bunkers, which was done as nearly as possible in the midship section of the ship, she started to come upright. She then went over to port and when the port list had reached about 25 degrees water poured into her and eventually she lay on her beam ends. Her crew had to leave her. She was put on the beach with the help of tugs, the deck cargo was discharged, portions were lost or damaged, but the balance was reshipped, and she was towed to Garston with the rest of her cargo, some of it being in a damaged condition.
There was some conflict of expert evidence, but it seems clear that the deck cargo rendered the vessel unstable and too tender for the voyage. It is true that she could not sink because the timber would keep her afloat, but she was liable to fall, as she did in fact, on her beam ends, and become a derelict. She was clearly unfit to carry and deliver the cargo safely and her condition endangered the lives of the crew. She was unseaworthy on any definition of the term. It was sought to say that the disaster at Stornoway was due to the act of the Master in putting in the bunkers as he did, and in pumping out the forepeak. It was said that his action in these respects was negligent, and, also, it may be, that he began to bunker her without discharging or reducing the deck cargo. There is no clear finding that the Master was negligent. But whether he was negligent or not what the Master did could have done no harm if the "Lilburn" had not been unseaworthy. The unseaworthiness, constituted as it was by loading an excessive deck cargo, was obviously only consistent with want of due diligence on the part of the shipowner to make her seaworthy. Hence the qualified exception of unseaworthiness does not protect the shipowner. In effect such an exception can only excuse against latent defects. The overloading was the result of overt acts.
On these facts Branson J. decided in favour of the Appellants. Though he held that the vessel was unseaworthy and the warranty had been broken, the unseaworthiness did not in his opinion cause the loss. He held that the necessary "nexus" between the unseaworthiness and the disaster was absent because in his opinion the vessel could have been bunkered at Stornoway in such a manner as to bring her back to upright and enable her to proceed and deliver her cargo at Garston. He distinguished Paterson Steamships, Ltd. v. Canadian Co-operative Wheat Producers, Ltd., 1934 A.C. 538 on the ground that there the defect could not have been remedied during the voyage. He held that the accident took place not by reason of the unseaworthiness of the ship but by reason of the acts of the Master which were wrong in the circumstances and that the Appellants were entitled to succeed by reason of the exception in Clause 12, "act neglect or default of the Master." He did not in terms find that the Master was negligent; though perhaps that is implied. Earlier in his judgment, however, he had described the putting on board of the 16 tons as done "in a very ordinary way."
This decision obviously raised a very important question of mercantile law. It was reversed by the Court of Appeal. MacKinnon L.J. in giving the leading judgment, agreed with the finding of Branson J. on the issue of unseaworthiness. He held that the cause of the disaster was clearly due to the unstable condition of the vessel on sailing from Soroka, which had continued right up to the disaster, and all that could be said about the Master's conduct at Stornoway was that his act, or default conduced to the disaster either by his not doing something,...
To continue reading
Request your trial
- Hon Hoi Weng and Others; Hong Leong Finance Bhd
- Sanko Steamship Company Ltd v Sumitomo Australia Ltd
- Kong Thai Sawmill (Miri) Sdn Bhd and Others (No 2); Ling Beng Sung v; Re Kong Thai Sawmill (Miri) Sdn Bhd
-
Can v. Calgary Chief of Police et al.,
...(2002), 278 F.3d 901 (9th Cir.), refd to. [para. 123, footnote 79]. Smith, Hogg & Co. v. Black Sea and Baltic General Insurance Co., [1940] A.C. 997 (H.L.), refd to. [para. 124, footnote Maryland v. Pringle (2003), 540 U.S. 366, refd to. [para. 125]. Florida v. Harris (2013), 133 S. Ct.......
-
Pirates... A Charterers' Peril of the Sea?
...Producers Ltd [1934] AC 538 (PC (Canada)); per Lord Wright at [545]; Smith Hogg & Co Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 (HL); per Lord Wright at [1004] 174 S.S.L.R Pirates… A Charterers‟ Peril of the Sea? Vol.1 Early bills of lading and charterparties did not co......
-
Overcrowding in prisons: a health risk in need of (re)consideration.
...ZACC 30. (34.) Ibid at para 46. (35.) Ibid, quoting from Smith, Hogg and Company, Ltd v Black Sea and Baltic General Insurance Company Ltd 1940 AC 997 at (36.) Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14......