The Bramley Moore
Jurisdiction | England & Wales |
Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN |
Judgment Date | 27 November 1963 |
Judgment citation (vLex) | [1963] EWCA Civ J1127-4 |
Court | Court of Appeal |
Date | 27 November 1963 |
[1963] EWCA Civ J1127-4
In the Court of Appeal
(On Appeal from the Liverpool District Registry)
The Master of the Rolls
Lord Justice Donovan
and
Lord Justice Danckwerts
Mr. H.V. BRANDON, Q.C, and Mr.J. COLLINSON (instructed by Messrs. Weightman Pedder & Co., 1 Rutford Street, Liverpool) appeared on behalf of the Appellant.
Mr. P. BUCKNILL, Q.C. and Mr. B. SHEEN (instructed by Hill Dickson & Co., 3 Bury Street, London, E.C.3.) Appeared on behalf of the Respondent.
About 06.15 hours on the 12th December, 1959, there was a collision in the River Mersey. The motor vessel "Egret" was heading northwards down river. The steam tug "Bramley Moore" was making her way southwards diagonally across the river with two dumb barges "Buckwheat" and "Millet", fully laden with grain. The barges were owned by different people from the tug. The barge "Buckwheat" was made fast to the starboard side of the tug "Bramley Moore". The tug "Bramley Moore" was manned by a crew of seven hands all told. Each of the two barges, "Buckwheat" and "Millet" was manned by a crew of three hands. There was a collision between the motor vessel "Egret" and the barge "Millet" in which both were damaged; and one member of the crew of the barge "Millet" was lost, I will henceforward call the "Egret" "the motor vessel' the "Bramley Moore", "the tug"; and the "Millet", "the barge".
Arising out of the collision there was an action tried by Mr. Justice Hewson. He held that those on board the motor vessel and those on the tug were equally to blame for the collision, but that those on board the barge were not to blame at all. The owners of the tug now bring this limitation action so as to limit their liability.
Many procedural points have arisen in the course of the Appeal (including a very substantial amendment of the Defence and of the Notice of Appeal) but in the end the issues come to these:
The owners of the tug say that their liability is to be reckoned by reference to the tonnage of the tug alone. The limit on this basis is £4,388. 1s. 0d.
This is disputed by the owners of the motor vessel who put forward these three alternatives: (1) The owners of the tug cannot limit their liability at all, (2) Alternatively they can limit their; liability to the combined tonnageof the whole flotilla (the tug and the two barges, "Millet" and "Buckwheat"). The limit on this basis is £14,188. 15. 9d. (3) In the further alternative they can limit their liability to the combined tonnage of the tug and the barge "Millet". The limit on this basis is £9,325. 5. 9d.
It is to be noticed that the owners of the barge have not taken any part in these proceedings. That is because of the towage contract under which they hold harmless the owners of the tug. This towage contract does not, however, affect the issues of limitation, and I need say no more about it.
Mr. Brandon, who appeared for the owners of the astorversel, argued in tliis Court that the owners of the tug cannot limit their liability at all for the damage that took place. He said that that was the position under the Statutes in force before 1958: and it was not altered by the amending Act of 1958. The point was not ta:ten before Mr. Justice Cairns, but we allowed it to be taken here because it was simply a point of law and needed no new evidence, furthermore it was the basis of his argument on the two other alternatives.
I. Before 1958
Before 1958 the relevant Section was S.505 (1)(d)(ii) of the Merchant Shipping Act, 1894, which said (so far as material) that "the owners of a ship shall not, where any loss or damage is caused to any other vessel, by reason of the improper navigation of the ship, be liable in damages beyond an aggregate anou it not exceeding £8 (now £24) for each ton of their ship's tonnage."
The key words in that Section for present purposes are "by reason of the improper navigation of the ship". Mr. Brandon says that in tuis case, when those on board the tug were negligent, they were guilty of the improper navigation of three ships: (1) they were improperly navigating the tug on which tliey were aboard: (2) they were also improperly navigating thebarge which they were towing: and (3) also they were improperly navigating the barge which they had alongside. No-one would dispute, of course, that those on board the tug were "Improperly navigating" the barges. A person can navigate a vessel by towing her or pulling her as well as by steering her. The proposition, He said, was borne out by the observations of this Court in The Ran reported in 1922 Probate Division at page 80. Having established that proposition, Mr. Brandon says that it was "by reason of the improper navigation of all three that the damage was done to the motor-vessel, or at any rate "by reason of" the improper navigation of the two, the tug and the barge "Millet", The owners of the tug could therefore be made liable for the damage to the motorvessel, not only by reason of their improper navigation of the tug but also by reason of their improper navigation of the two barges, or at any rate of the barge "Millet".
Turning then to Section 503, subsection (1)(d)(ii), Mr. "Brandon said that by the very terms of that Section the owners of the tug were entitled to limit their liability for the improper navigation of the tug: but they were not entitled to limit their liability for the improper navigation of the barge. Once it was held that their servants improperly navigated the barge, they cold not limit their liability at all. The only persons who were entitled to a limitation of liability for the improper navigation the barge were the owners of the barge, not the owners of the tug. The owners of the tug were therefore not covered by the Section. They were subject to the unlimited liability which was imposed on them by the common law. He referred to The Andalusian reported in 1878 3 Probate Division at page 182 to establish that, unless a person can bring himaelf within the statutory limitation, his liability is unlimited in amount.
I can see the force of Mr. Brandon's argument. It can well be said the owners of the tug were guilty of "improper navigation" of the barge — in that they were in control of thegovemeat of the barge through the water. But the Section requires you also to look at the cause of the damage. That is clear from the worda "by reason of". And in a case where those on the tug are negligent, and those on the barge are not, the cause of the damage is in truth the improper navigation of the tug, not the improper navigation of the barge. It is the tug which is the cause of all the trouble. That is, at any rate the way in which these cases have been regarded in the past. Take first the case of tug and tow where those on board the tug are negligent and those on the tow are not; and the negligence of those on the tug causes the tow to come into collision with another vessel. Tug and tow belong to different owners. No-one has ever suggested that the owners of the tug cannot limit their liability at all. On the contrary it has been generally assumed that the owners of the tug can limit their liability according to the tonnage of the tug, see The Vigilant reported in 1921 Probate Division at p. 312, and The Ant reported in 1924, 19 Lloyds List at p. 211. This must be on the assumption that the damage is "by reason of the improper navigation" of the tug, but not "by reason of the improper navigation" of the tow....
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