Southport Corporation v Esso Petroleum Company Ltd (Inverpool.)
| Jurisdiction | England & Wales |
| Judge | Earl Jowitt,Lord Normand,Lord Morton of Henryton,Lord Radcliffe,Lord Tucker |
| Judgment Date | 12 December 1955 |
| Judgment citation (vLex) | [1955] UKHL J1212-1 |
| Date | 12 December 1955 |
| Court | House of Lords |
[1955] UKHL J1212-1
Earl Jowitt
Lord Normand
Lord Morton of Henryton
Lord Radcliffe
Lord Tucker
House of Lords
After hearing Counsel, as well on Monday the 17th, as on Tuesday the 18th, days of October last, upon the Petition and Appeal of Esso Petroleum Company Limited, whose registered office is situate at 36 Queen Anne's Gate, Westminster, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 3d of June 1954, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the printed Case of the Mayor, Aldermen and Burgesses of the County Borough of Southport, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 3d day of June 1954, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Devlin of the 21st day of October 1953, thereby Varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
this was an appeal from the decision of the Court of Appeal by which that Court by a majority (Morris L.J. dissenting) reversed a decision of Devlin J. and entered judgment for the Respondents, the Southport Corporation.
The action was brought by the Respondents, the owners of the foreshore, against the Appellants, the owners of the S.S. Inverpool, and against Mr. McMeakin, her Master, in respect of the damage occasioned to the foreshore by the discharge of a quantity of oil from the S.S. Inverpool. Devlin J. delivered judgment for the then Defendants, the present Appellants, and Mr. McMeakin.
The Court of Appeal dismissed the appeal so far as Mr. McMeakin, the Master of the S.S. Inverpool, was concerned; and that part of the decision of the Court of Appeal has not been the subject of an appeal to this House.
The Court of Appeal allowed the appeal against the owners of the S.S. Inverpool, the present Appellants. The facts are fully stated in the judgment of Devlin J., and it is only necessary for me to refer to them briefly.
The S.S. Inverpool is a small tanker of 680 tons gross. Her Master and Chief Engineer were experienced seamen and she carried a crew of eleven hands all told. On the 3rd December, 1950, she left Liverpool at 7.30 a.m. on a voyage to Preston. She arrived at the Nelson Buoy at 11.40 a.m. and waited there for the tide, high water at Preston being at 5.17 p.m. She left the Nelson Buoy at 2.30 p.m. The wind was N.N.W. force 7 or 8, and the sea was moderately rough. Shortly after leaving the Nelson Buoy, she shipped some very heavy seas; and for some unexplained reason her steering thereafter became erratic and she began sheering four or five points to starboard and to port. The Master decided, notwithstanding his knowledge of the defective steering, to continue on his course towards Preston, although this involved the navigation of a comparatively narrow and shallow channel.
On the south side of the channel there is a revetment wall about seven or eight feet wide and about three to six feet above datum. When the S.S. Inverpool had passed Salter's Buoy she took a heavy sheer to starboard and ran aground on the revetment wall. She was lying in a dangerous position, and was in danger of breaking her back. The safety of the ship was at stake and the lives of her crew were in peril. The engines were put full astern, but it was found that the propeller was fouling some hard object, and the Chief Engineer feared that the main steam pipe might fracture. This was reported to the Master, who ordered the Engineer to stop the engines.
Under these circumstances, the Master decided to discharge considerable quantities of the cargo of oil to lighten the ship.
The oil so discharged was carried by the action of the wind and tide on to the premises of the Southport Corporation, the Respondents to this appeal. They were put to considerable expense in cleansing their premises from the oily discharge and brought their action against the Appellants, the owners of the S.S. Inverpool, and against her Master to recover such expenses.
It is obvious that a well found ship, if properly navigated, would, in the absence of abnormal circumstances, not have run aground on the wall and would not have got herself into such difficulties that it became necessary to discharge a considerable part of the oil which constituted her cargo.
What, then, were the circumstances which made this course necessary?
The Judge found—and his conclusion was not challenged—that the stern frame of the ship had sustained a fracture after leaving the Nelson Buoy. He pointed out that it was most improbable that the stern frame, if in sound condition, could have been fractured merely by heavy seas. He was advised by the Elder Brother, whom he consulted after the conclusion of the hearing, that the stern frame might have been broken against the bed of the channel; but the Judge felt that it was too speculative to accept this theory, as it had not been advanced at the trial and there had been no evidence from the Master or the Chief Engineer in its support.
The Judge, therefore, came to the conclusion that no explanation had been given to account for the fracture of the stern frame. He found that this fracture, however caused, had affected the steering; that the defective steering had caused the ship to run aground; that being aground, the Master took the right course in discharging the oil in order to lighten the ship; and that this course was necessary not merely in an endeavour to save the ship but also to save the lives of the crew.
The action which the Respondents brought against the Appellants the owners of the S.S. Inverpool, and against Mr. McMeakin (her Master) was based upon trespass, nuisance and negligence.
Devlin, J., decided that the fact that it was necessary to discharge the oil in the interest of the safety of the crew afforded a sufficient answer to the claim based upon trespass or nuisance.
I agree with him in this view, and think it unnecessary to consider whether, had this fact not been established, the cause of action in trespass or nuisance would have succeeded.
There remains the question of negligence.
The Statement of Claim alleged that there had been negligence in the navigation of the S.S. Inverpool whereby she grounded on the revetment wall, and that her Master had taken no sufficient steps to prevent such grounding. It further alleged that the discharge of the oil was unnecessary and unreasonable, and that the Master ought under the circumstances to have obtained the assistance of a pilot or of tugs.
All these allegations were disposed of adversely to the Plaintiffs, the present Respondents, by the findings of the trial Judge.
There remained, however, one further allegation which was added to the Statement of Claim by amendment: namely, that it was negligent to cause the S.S. Inverpool to enter and navigate the channel when it was known that her steering was erratic.
Devlin, J., disposed of this suggestion as follows:
"The Plaintiffs contend that the master, knowing before he entered the channel that there was something wrong with his steering, ought to have anchored or turned about and hove to or put back to sea. The master answered that in the weather at the time, to anchor was impossible and to turn about more dangerous than to proceed. He recognised the danger of proceeding into a narrow channel with defective steering gear; he weighed up the two evils, he said, and considered that the lesser of the two was to attempt to get into sheltered water. I should not without assistance be able to say whether he made the right choice or not, but I should feel able to say that his choice was not a careless or unskilful one, which would be enough to dispose of the charge of negligence. In fact the Elder Brother advises me that in his opinion the master's decision was the right one, and I accept that advice."
It follows, therefore, that every allegation in the Statement of Claim, and the particulars thereunder, was decided by the Judge in a sense adverse to the Respondents.
Mr. Carpmael relied upon the doctrine of the ( Merchant Prince 1892 P., page 179) and claimed that it was for the Appellants to prove how the accident happened. He rightly asserted that they had not explained how it came about that the stern frame had fractured.
The facts in the case of the Merchant Prince were that, under weather conditions by no means exceptional and in broad daylight, a ship under way had collided with a ship at anchor. The Court decided that under these circumstances the onus lay on the colliding ship to negative the charge of negligent...
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