The "Helene"
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1865 |
| Date | 16 June 1865 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 426
HIGH COURT OF ADMIRALTY
[415] the " helene." March 3, 1865 -Suit for damage to cargo-24 Viet, c 10, s 6 -Pleading-Bill of lading " not accountable for leakage "-Onus probandi-Negligence-Bills of Lading Act, 18 & 19 Viet c 111 -In a suit for damage to cargo under the 6th section of the Admiralty Court Act, 1861, the petition ought in general to state, so far as is practicable, the cause to which the plaintiff attributes the loss or damage. Where a bill of lading for oil contains the ordinary exception of sea penis, and in the margin the memorandum " Not accountable for leakage " , upon loss by extraordinary leakage being proved, the burden of proof is on the shipowner to shew that he is not liable for such loss. Such extraordinary leakage having been proved to have taken place from a mode of stowage which was hazardous, and from no special precautions being used to obviate the hazard. Held, that the shipowners were liable The rights and liabilities which the assignee of a bill of lading under the 1st section of 18 & 19 Viet c. Ill has transferred to him, are the same rights and liabilities in respect of such goods as if the contract contained in the bill of lading had been made with him In these are not included the rights and liabilities as between the shipper and the master dehors of that contract in respect of other goods or of the charter-party. The charter-party provided that the cargo should be taken alongside by the charterer, and be received and stowed by the master as presented for shipment, the charterer being allowed to appoint a head stevedore at the expense and responsibility of the master for proper stowage. The cargo was received and stowed accordingly, the whole being shipped by the charterer (who was on board during the loading, and made no objection to the mode of stowing) Amongst other goods, oil was shipped in casks, and rags and wool were stowed in the same hold over and near it, without any bulkhead being placed between Bills of lading for the oil making no reference to the charter, and containing the memorandum, " Not accountable for leakage," were assigned to merchants, purchasers of the oil, who had no notice of the charter. On the voyage extraordinary leakage in the oil took place from the wool and rags heating the oil casks, and causing them to shrink The assignees sued on the bill of lading for the loss of the oil. Conflicting evidence was given as to whether the juxtaposition of wool and rags to oil in the same hold was known to be a dangerous mode of stowage Held, upon the evidence, that the mode of stowage was hazardous : and that the master taking the rags, wool and oil together, was bound to take extraordinary precautions to prevent mischief. That the shippers might have sued the shipowner for the loss of the oil, notwithstanding the charter and the shipment thereunder. That if the shippers could not maintain such an action because of the charter and the shipment thereunder, the assignees might nevertheless recover the loss as for a breach of the contract contained in the bill of lading [S C. 5 New Rep 448 See same case on appeal, reported post, p 429 ] This was an action instituted under the 6th section of the Admiralty Court Act, 1861, by Messrs T. and H Bnscall & Co , to recover damages for short delivery of a cargo of olive oil. BR. ft L. 416. THE " HELENE " 427 [41$] The petition filed was as follows :- 1. The plaintifis carry on business m Liverpool as oil merchants, under the name of T and H Briscall & Co 2. The " Helene " is a foreign ship, and, at the time of the institution of this cause, no owner or part-owner was domiciled in England or Wales. 3. On or about the 10th of August 1864, 47 casks of olive oil were shipped on boaxd the " Helene," then lying in the port of Leghorn, in Italy, and bound for Liverpool The master of the ship signed and gave, in respect of the said olive oil, a bill of lading in the following terms - " Shipped in good order and condition by Thomas Lloyd & Co , of Leghorn, in and upon the good ship or vessel called the ' Helene,' tr whereof is master for this present voyage Bachofen, and now lying in the S, port of Leghorn, and bound for Liverpool, forty-seven casks olive oil, 2 weighing kos 19,943 ti being marked and numbered as per margin, and are to be delivered in the like good order and condition at the aforesaid port of Liverpool, all and every the dangers and accidents of the seas and g gi . navigation of whatsoever nature or kind excepted, unto order or to assigns, he or they paying freight for the said goods 35s sterling per ton of 252 r* ^ oj imperial gallons, with ten per cent, primage, and average accustomed. 2-Is In witness whereof the master or purser of the said ship or vessel hath j JiL affirmed to two bills of lading all of this tenor and date, one of which S- being accomplished, the rest to stand void. S " Dated in Leghorn this 10th day of August 1864. " Weight, measurement, and contents unknown, and not accountable for leakage." 4. The said bill of lading was endorsed in blank by the shippers, and assigned to the plaintiffs, and at the time of the institution of this cause the plaintiffs were the ownera of the said olive oil, and the assignees of the said bill of lading 5. The " Helene " arrived at Liverpool on or about the 19th October last, and the said 47 casks were delivered to the plaintiffs, but many of the said casks were wholly or partially empty, shewing a loss of 2001 gallons of oil, out of 4888J or thereabouts. The said loss was not occasioned by the dangers or accidents of the seas or navigation, nor was the satne leakage within the meaning of the bills of lading, but the said loss [417] was occasioned by the negligence of the defendants or their servants. 6 The plaintiffs seek to recover all the damages occasioned to them by the said negligence, breach of contract, and breach of duty on the part of the defendants. The solicitors lor the plaintiffs pray the Right Honourable the Judge to pronounce for the said damages, and to condemn the said ship and the defendants in the same, and in the costs of this cause. Notice of motion was now (28th November 1864) given by the defendants for an order " that the plaintiffs do amend their petition by setting out the particular^ of the alleged negligence, and also the particulars of the alleged breach of contract and breach of duty." R G Williams, in support of the motion, referred to the practice at common law of requmng a plaintiff to give particulars in order to give due information to the defendant of the case he had to meet [Lh. Lushington It is a question of great difficulty what extent of particulars the plaintiffs should give in a case of this kind They may be without means of knowing the cause of the loss. They may only know that their cargo is lost However, it is highly desirable that if they can they should specify the cause of loss on which they rely.] Lushington, for the plaintiffs, offered to add the following paragraph to the petition - 7 " One of the acts of negligence and breaches of contract and duty on the part of the defendants on which the plaintiffs will rely is, that the said oil was improperly stowed in this among other respects, that large quantities of rags and wool were stowed in the same hold with and near the said oil, whereby the said damage was occasioned wholly or in part." The learned Judge then ordered the petition to be amended accordingly. 428 THE " HELENE...
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