Standard Oil Company of New York v Clan Line Steamers
| Jurisdiction | England & Wales |
| Judge | Viscount Haldane,Lord Atkinson,Lord Parmoor,. |
| Judgment Date | 23 November 1923 |
| Judgment citation (vLex) | [1923] UKHL J1123-2 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 23 November 1923 |
[1923] UKHL J1123-2
House of Lords
Earl of Birkenhead.
Viscount Haldane.
Lord Atkinson.
Lord Parmoor.
After hearing Counsel, as well on Tuesday the 24th, as on Wednesday the 25th and Thursday the 26th, days of July last, upon the Petition and Appeal of the Standard Oil Company, of New York, incorporated under the Laws of the United States of America, and having its Office at No. 26, Broadway, New York, United States of America, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 21st of December 1922, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor 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 Clan Line Steamers, 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, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by His Majesty the King under His Sign Manual, dated the 16th day of November 1923, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, That the said Interlocutor, of the 21st day of December 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Hunter), of the 13th day of January 1922, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session, in Scotland, with a Direction to enter Decree for the Appellants for the sum of 97,892 l. 17 s. 7 d., with interest at the rate of 5 per centum per annum, from the 13th day of January 1922, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs of the Action in the Court of Session, under reservation of the question of modification, if any, of the expenses in the Inner House, as well as before the Lord Ordinary, until the lodging of the Auditor's Report, 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 unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
In the opinion which I am about to deliver my noble and learned friend Lord Birkenhead desires me to say that he concurs.
The mixed question of fact and law that arises in this Appeal is one which necessitates close examination. Only after modifying my own view from time to time as the arguments at the Bar proceeded, and after subsequently re-studying the whole of the evidence and the judgments in the Courts below, have I arrived at the conclusion that the Lord Ordinary and Lord Sands were right, and that the judgment of the majority in the First Division cannot stand.
Having regard to the concurrence of findings in what is an issue of fact, I think that we are bound to hold that it was established by the Respondents that when the "Clan Gordon" left New York she was physically sea-worthy. But it appears to me to be not less clearly shown that she was thus seaworthy only on the footing of having two out of six of her ballast tanks filled, to the extent of containing 290 tons of water. Without this amount of water in the tanks she was not, having regard to her loading, seaworthy, and the master in charge of her had to know this and observe the requirement through his voyage. He did not know it; he pumped out the water, and the ship heeled over and was lost two days after her commencement of the voyage. I think that the requirement as to this ballasting was due to the construction of this steamer as a turret vessel. Only scientific calculation could show the absolute character of a requirement which if not observed would render the ship unseaworthy. The master had not been instructed as to its special significance in the case of a turret ship like the "Clan Gordon." He could not divine it, nor could the ordinary experience of a master not informed of the special peril due to abnormal construction be relied on to disclose it. The master did not know the unusual risk he was called on to undertake. The fault of this absence of knowledge lay not with him but with the owners, whose duty it was to have instructed him that while the vessel was seaworthy it was only conditionally seaworthy. The breach of the condition was therefore an occurrence for which they were personally in fault.
In the light of what has been proved, the two tanks held just enough water to give the vessel the stability indicated in the builder's instructions. But it is significant that the master was not shown to have been specially warned that the presence of the water ballast was essential to the ship as loaded, if its stability was to be preserved. The instructions of the builders rendered such ballasting essential, and the master was not told about it. In his evidence Captain McLean says that it was the first cargo of the kind that he had actually loaded himself, and that before he sailed he had intended to sail with his ballast tanks empty. This makes it not surprising that two days later he directed that the tanks should be pumped empty. He hoped to obtain thus more freeboard for his vessel. He says that he had got no instructions from his owners that, with a homogeneous cargo he was on no account to pump out the ballast tanks. All he knew was that those in charge of turret ships were to be careful of them. But he knew nothing of the Doxford instructions. Had he been informed of them he says that he would have obeyed them. But the reason of the necessity for what they prescribed was not known to him. He had been in command of the "Clan Gordon" for some time previously, and had been employed on other turret ships, and had found no difficulty. The case with which he had to deal of a ship loaded just as this one was, was, however, new to him, and he appears to have somewhat overestimated the proportion between the cargo in the lower holds and that between the decks. If he had known that there was not so much weight in the lower holds, it may be that he would not have emptied the tanks. Captain McLean was admittedly a competent and experienced officer, and there had been no difficulty with turret ships excepting in the case of the "Clan Ranald," when the disaster was due to the carelessness of another master. Captain McLean simply did not imagine that he could be running a serious risk when he began to pump out the tanks at sea, and nothing in his experience of turret ships had pointed to there being such a risk as there actually was.
My Lords, no doubt the primary and immediate cause of the disaster which occurred to the "Clan Gordon" must be taken to be, not defect in the initial loading, but the pumping of the tanks out at sea just before the disaster happened. But then, if the Doxford instructions meant anything, they meant that such pumping must not take place. Whether its effect would be to destroy general stability, or to enable the free water to cause a dangerous disturbance of stability by the rush to the sides of the half empty tanks, does not matter. The instructions obviously implied not only that water must be kept in tanks that were filled but that it must not be withdrawn.
On this point at least the instructions do not seem to me to be ambiguous, and if they had been given to Captain McLean, we must take it, that he would have interpreted them properly and carried them out. There is no doubt that Doxfords sent them round as being suggested by their investigation of the circumstances which led to the overturning of the "Clan Ranald." It may be that ordinary ships might have proved to be subject to some analogous peril, but not, so far as we can gather the views of Messrs. Doxford, to the same extent. Mr. Holey, their assistant chief draughtsman, says in his evidence that the document, a copy of which was sent out for each turret ship, was meant to prescribe what was to be provided when loading. It is difficult to draw any other conclusion than that Doxfords thought there were risks in the case of turret ships, as to which special guidance for masters was required. It is true that the instructions were prepared and sent out by the builders, not only long after the ship was built, but many years before the accident, and that they are open to some criticism of the calculations on which they are founded. But the substance which underlies what they prescribe remains. They suggest to instructed persons that, as in the case of a turret ship there is danger of righting force diminishing more rapidly than in the instance of a wall-sided ship, it is necessary to provide an appropriate amount of special ballast. This seems to follow from the proposition that the ship is not to be loaded down to her marks with a homogeneous cargo without water or other adequate ballast. In so far as this is scientifically true, no amount of fortunate experience in the course of which the peril happens not to have...
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