Standard Oil Company of New York v Clan Line Steamers
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1922 |
| Docket Number | No. 28. |
| Date | 21 December 1922 |
| Court | Court of Session (Inner House - First Division) |
Lord Hunter, Lord President (Clyde), Lord Skerrington, Lord Cullen, Lord Sands.
ShipCharter-partyBill of ladingIncorporation of the Harter ActException of owner's liability for master's errors in navigationObligation on owner to use due diligence to make ship seaworthyAppointment of competent masterDuty to communicate to master instructions by shipbuilders as to ballasting shipShip capsizing as result of master emptying water-ballast tanks.
A ship of the turret type was chartered for a voyage from New York to China, under a charter-party which incorporated the Harter Act of the United States. That Act provided that, if the owners exercised due diligence to make the vessel in all respects seaworthy and properly manned, they should not be held responsible for loss resulting from faults or errors in navigation or in the management of the vessel. The charterers shipped a cargo under bills of lading which incorporated the Harter Act, and also contained a clause exempting the owners from loss occasioned by accidents of navigation of whatsoever kind (even when occasioned by the negligence, default, or error in judgment of the master not resulting, however, in any case from want of due diligence by the owners of the ship).
Shortly after leaving New York the master ordered two water-ballast tanks to be emptied, with the result that the ship capsized and sank. Nine years previously, after the loss of a sister ship by capsizing, the builders had sent to the owners a series of instructions for loading the ship, including an instruction that, when she was loaded with a homogeneous cargo (as on the voyage in question), the two water-ballast tanks were to be filled. The owners had never communicated these instructions to the master, who was a competent seaman with long experience of turret ships.
In an action of damages by the cargo-owners against the owners of the ship, held, after a proof (diss. Lord Sands, rev. judgment of Lord Hunter), that the loss was occasioned by an accident of navigation due to the master's error in judgment, and that, as the defenders had appointed a competent master, experienced in ships of the particular type, the fact that they had not communicated to him the builders' instructions did not render him incompetent to command and so render the ship unseaworthy, and did not amount to want of due diligence on their part; and defenders assoilzied.
On 23rd April 1920 the Standard Oil Company of New York brought an action against the Clan Line Steamers, Limited, 109 Hope Street, Glasgow, concluding for 111,235, as the value of a cargo shipped by the pursuers on board one of the defenders' ships, the Clan Gordon, which capsized and sank during a voyage from New York to China while under charter to the pursuers.
The facts of the case, as established at the proof, are narrated in the following passages from the Lord Ordinary's opinion:
By charter-party, dated 2nd April 1919, the defenders agreed to supply vessels belonging to them to the pursuers for the carriage of the pursuers' goods from the Port of New York or Philadelphia to ports (as the pursuers might elect) in Japan, North China, South China, Indo-China, the Philippine Islands, and the Straits Settlements. The vessels so provided were to be tight, staunch, strong, and in every way fitted for the voyage they were to undertake, including proper ballast and dunnage. The pursuers were, under the charter-party, to provide full cargoes of refined petroleum, and, further, had the privilege of shipping general cargo including petroleum and/or its products in barrels and/or cases and/or drums up to 10 per cent of vessels' capacity if full cargoes. It was also agreed that the contract should be subject to all the terms and provisions of, and all the exemptions from liability contained in, the Act of Congress of the United States of America approved on 13th February 1893, known as the Harter Act,* and that bills of lading should be issued in conformity with that Act.
In terms of the charter-party the Clan Gordon in July 1919 proceeded to load at the Port of New York a full cargo of motor spirit and refined petroleum in cases and of refined wax in bags. The Clan Gordon was a turret steamer built of steel in 1900, and of the burden of 2292.45 tons register. According to her bills of lading the cargo she took on board consisted of 12,500 cases of Pratt's motor spirit, 12,000 cases of Nonpareil, and 67,512 cases of Brilliant, making a total of 92,012 cases. In addition there were 12,534 bags of paraffin wax. It was mutually agreed in the bills of lading that the following exemptions from liability should apply:Perils of the sea or other waters or any latent defect in hull, machinery, or appurtenances, or other accidents of navigation of whatsoever kind (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner, not resulting, however, in any case from want of due diligence by the owners of the ship or any of them or by the ship's husband or manager).
At or about 5 p.m. on 28th July 1919 the Clan Gordon sailed from New York with the said motor spirit, refined petroleum, and paraffin wax on board bound for Dalny in China.
At or about 4 p.m. on 30th July 1919 the Clan Gordon listed to port and never righted, and shortly thereafter turned bottom upwards and was totally lost with her whole cargo. The weather was fine and the sea calm. On the day of the accident the master of the ship had ordered the ballast water, amounting to 290 tons, in Nos. 1 and 2 tanks to be pumped out. His account of what occurred is given in these words: The actual pumping began upon the 30th. It began at eight in the morning. At noon on 30th July it was reported that No. 1 tank was empty. No 2 tank was then started at once. At four o'clock the carpenter reported that No. 2 tank only contained 6 inches of water on the port side. The reason why it was on the port side was because the vessel had a
little list to port then. That list was reported to me. The extent of the list was 4 to 5 degrees. I was steering at the time on a course south 2, west, true. We were making about ten knots. The chief officer was on watch at the time. About 4.30 on the 30th I gave an order to the quartermaster to port his helm, because I wanted to get bearings on south-west courses. He did not go hard-a-port at first. He began to port the helm a little bit at first. My object in doing this was to get bearings on south-west courses. (Q.) As he began to put over the helm, what happened? (A.) Nothing happened immediately. It was when I gave the second order to put the helm hard-a-port that she began to list. Then she fell right over. She first went over to about 14 degrees, and then fell right over to about 60 or 70 degrees. This all happened very quickly. After that the men all came up on deck and got the boats out. When I noticed the list of 13 or 14 degrees I gave the helmsman another order. First of all, after I had given the order hard-a-port she went over to 14 degrees. Then I gave the order to the quartermaster to put his helm hard-a-starboard. That was to try and right the list if I could; but then she went over. When she took this heavy list I rang to the engines to stop, but by this time the engine room evidently was empty of people. We took to the boats and some of the men jumped into the water, with the result that everyone was saved except two Indians and one wireless operator who were drowned. The vessel turned with her keel up. According to the master he was greatly puzzled to explain what could have caused the casualty.
In 1909 the Clan Ranald, a sister ship of the Clan Gordon and also owned by the defenders, turned turtle and was lost off the coast of Australia when on a voyage from Adelaide. There appears to be little doubt that the direct cause of this accident was the way in which the cargo she was carrying had been stowed, but it is not necessary to determine where the exact fault lay. The year following this accident Messrs Doxford of Sunderland, the builders of the vessel, caused certain experiments to be made as to the stability of turret ships. As a result of these experiments, general instructions as to the loading of such vessels were embodied in a document, a copy of which is No. 141 of process. Copies of this document were sent to each of the British owners owning turret ships built by Messrs Doxford. In particular a copy was sent to the defenders as the owners of the Clan Gordon. No. 141 of process is in these terms:
This vessel is not intended to load down to her marks with a homogeneous cargo without water-ballast.
If the cargo is homogeneous throughout, the ballast in the double bottom in Nos. 2, 3, and E and B tanks must be run up before commencing to fill the 'tween-decks. The cargo would then have a density of 581/4 c. ft. per ton, reckoned on the bale space, and 631/4 c. ft. per ton reckoned on the grain space.
In the case of a cargo of varying density, that portion in the 'tween-decks must always be lighter, and if the density of the 'tween-deck cargo is only 71 per cent of that in the holds, one ballast-tank only, say the No. 3 tank, need be run up. If 86 per cent, then 42 per cent of the tanks must be run up; other proportions by interpolation.
If, whilst preserving these proportions, the mean stowage is insufficient to load the vessel down to her marks, and it is desired to carry coal on the turret deck, then for each 100 tons of coal, 125 tons of water ballast must be added in the double bottom before the coal is put on board. In no case must a tank be partially filled. Each tank must be completely filled in its turn.
There is no clear evidence of what use, if any, was made by the defenders of the copies of this document, which were sent to them as owners of several turret ships. Captain Barr, who...
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Standard Oil Company of New York v Clan Line Steamers
...Act, 1894, in cases where there is no ‘actual fault or privity’ on the part of the owners. (In the Court of Session, 21st December 1922—1923 S. C. 245.) In this action the Standard Oil Company of New York sued the Clan Line Steamers, Limited, Glasgow, for £111,235 as the value of a cargo sh......