Stag Line Ltd v Foscolo, Mango & Company Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Buckmaster,Lord Warrington of Clyffe,Lord Atkin,Lord Russell of Killowen,Lord Macmillan
Judgment Date10 December 1931
Judgment citation (vLex)[1931] UKHL J1210-1

[1931] UKHL J1210-1

House of Lords

Lord Buckmaster.

Lord Warrington of Clyffe.

Lord Atkin.

Lord Russell of Killowen.

Lord Macmillan.

Stag Line, Limited
and
Foscolo Mango & Company, Limited (and Others).

After hearing Counsel, as well on Friday the 30th day of October last, as on Monday the 2d day of November last, upon the Petition and Appeal of Stag Line, Limited, whose registered office is at 1, Howard Street, North Shields, in the County of Northumberland, 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 16th of February 1931, 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 Foscolo Mango and Company, Limited, and H. C. Vivian and Company, Limited, 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 16th day of February 1931, 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.

Lord Buckmaster .

My Lords,

1

The Appellants are the owners of the steamship "Ixia", of 4,300 tons dead weight exclusive of bunkers, which they chartered to the Respondents, Foscolo Mango & Company Limited, under a Charter Party dated 14th June, 1929, made between the Appellants and the second Respondents who acted as agents for the charterers. The vessel was chartered to carry a cargo of coal sold by the second Respondents to the first not exceeding 4,350 tons nor less than 4,100 tons and to proceed from Swansea where the coal was to be loaded with all possible despatch to Constantinople. The terms of the Charter Party were incorporated in the Bills of Lading. The Charter Party contained a clause (clause 6) giving the vessel liberty "to call at any ports in any order for bunkering or other purposes or to make trial trips after notice." The usual and customary route for the voyage was from Swansea, south of Lundy, from thence in a straight line to a point about five miles off Pendeen, on the north coast of Cornwall, and then with a slight alteration to the east to Finisterre and so on.

2

The ship had been fitted with a heating apparatus designed to make use of the heat which might otherwise be wasted as steam and so to diminish the bill for fuel. This apparatus had not been working satisfactorily and the owners therefore arranged to send representatives of the engineers to make a test when the vessel started on her next voyage. Two engineers accordingly joined the boat, the intention being that they should leave the ship with the pilot somewhere off Lundy.

3

The firemen on board the ship were not in possession of their full energies when the boat started at 1.45 in the morning on the 31st June, 1929, owing to excessive drinking before they joined the ship. The result was that a proper head of steam necessary for making the test was not got up in time to enable the test to be made before the pilot was discharged. Accordingly they proceeded on the voyage until the ship was off St. Ives when the ship was turned about five miles out of its course to enter the St. Ives Harbour in order that the engineers might be landed. After landing them, the ship did not go straight back to the recognised route that she ought to have pursued but hugged too closely the dangerous coast of Cornwall, and ran on a rock called the Vyneck rock, with the result that the vessel and cargo were totally lost though, fortunately, there was no loss of life. The accident took place at about 3.20 p.m., there was a moderate wind from E.N.E. the weather was cloudy but visibility was moderately good up to six miles.

4

The Respondents sought to recover damages for loss of their cargo upon the ground that there had been an unlawful deviation from the contracted course. The Appellants made three answers to this claim; first, they set up the clause of the Charter Party to which reference has been made and secondly, they said by the Carriage of Goods by Sea Act, 1924, the rules in the schedule must be regarded as incorporated in the contract and, by those rules, they were entitled to make the deviation which led to the disaster.

5

As is well known, the statute provides that the rules are to have effect in connection with the carriage of goods by sea in ships carrying goods from any port in Great Britain or Northern Ireland to any other port whether in or outside Great Britain or Northern Ireland. The rules that are relevant are to be found in article 4 of the schedule, subhead 2, of which subsections ( a), and ( c) are in the following terms:—

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—

( a) Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship:

( c) Perils, dangers and accidents of the sea or other navigable waters.

6

Subhead 4 of the same article is in these terms:—

4. Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

7

The Appellants' argument upon the statute is, that firstly the accident was a peril of the sea and secondly, that the deviation in question was a reasonable deviation and consequently was not an infringement of the contract of carriage.

8

It is well to consider these arguments in the order in which I have stated them. With regard to the clause of the Charter Party, the contention is that to land the two engineers at St. Ives was an "other purpose" within the meaning of clause 6 and consequently permitted by the Charter Party itself. This argument depends upon the view that it is impossible to get a specified category in which the words "other purposes" may be confined when the illustrative word at the beginning of the sentence consists only of one description. I find it difficult, and I think it is undesirable, to attempt to specify in exact language what are the limitations imposed by the use of such a word prefacing others of general import. To my mind it is impossible to frame a rule applicable to all the various documents in which such phrases are to be found. General words in a Will following a specific instance may require different interpretation to that demanded by similar words in an Act of Parliament or a Charter Party. To attempt in these circumstances to say that two or more words are essential before you can define a class does not assist in the present case. The word "bunkering" must have some demonstrative and limiting effect and the phrase "or other purposes" following it cannot be so construed as to disregard the effect of the first example and assume that any purpose is thereby permitted. If that were so, the word "bunkering" might be left out. Nor am I prepared to define what are the limitations within which the phrase "other purposes" must be confined, but I can find nothing kindred to bunkering or associated with the operation that is involved in landing two men at a port that is not on any part of the specified route.

9

The passage from the judgment of Lord Herschell in Glynn v. Margetson & Company, 1893 Appeal Cases, page 355, is in exact accordance with the view I have expressed. I agree with Lord Justice Scrutton's judgment upon this point and I do not think that it demands further discussion.

10

Turning from the words of the contract itself to the implied clauses introduced by the statute, the first point can, I think, be disregarded. It involves the view that perils and accidents of the sea are not qualified by the provisions as to deviations and that such perils exempt the shipowner from responsibility for damage if they arise from or in the course of deviation, whether such deviation be reasonable or not. In my opinion Clause 4 must be given its full effect without rendering it to a large extent unnecessary by such an interpretation, for it would follow from the arguments that a peril encountered by deviation, wholly unreasonable and wholly unauthorised, would be one for which the ship-owner would be exempted from loss. In other words, the reasonable deviation would then only apply to questions of demurrage whatever the deviation might be.

11

The real difficulty in this case, and it is one by which I have been much oppressed, is whether in the circumstances the deviation was reasonable. It hardly needed the great authority of Lord Herschell in Hick v. Raymond, 1893 Appeal Cases, page 22, to decide that in construing such a word it must be construed in relation to all the circumstances, for it is obvious that what may be reasonable under certain conditions may be wholly unreasonable when the conditions are changed. Every condition and every circumstance must be regarded and it must be reasonable too in relation to both parties to the contract and not merely to one. But if, when full consideration has been given to this fact, two Courts have decided that a set of circumstances are reasonable unless it can be shown that the learned Judges have misdirected themselves in...

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