The Koursk

JurisdictionEngland & Wales
Judgment Date22 February 1924
Date22 February 1924
CourtCourt of Appeal

Court of Appeal

Bankes, Scrutton, and Sargant, L.JJ.

The Koursk

Brinsmead v. Harrison 27 L. T. Rep. 99 L. Rep. 7 C.P. 547 L. Rep. 6 C. P. 584

Sadler v. Great Western Railway Company 74 L. T. Rep. 561 (1896) A. C. 450

Thompson v. The London County CouncilELR 80 L. T. Rep. 512 (1899) 1 Q. B. 840, 844

The Avon and Thomas JolliffeDID=ASPMELR 6 Asp. Mar. Law Cas. 605 63 L. T. Rep. 712 (1891) P. 7

The Englishman and The AustraliaDID=ASPMELR 7 Asp. Mar. Law Cas. 605 72 L. T. Rep. 203 (1895) P. 212

The DevonshireDID=ASPM 10 Asp. Mar. Law Cas. 210 107 L. T. Rep. 179 (1912) A. C. 634, 657

The Knight ErrantDID=ASPMELR 11 Asp. Mar. Law Cas. 407 102 L. T. Rep. 643 (1910) P. 199

The FranklandDID=ASPMELR 9 Asp. Mar. Law Cas., 196 84 L. T. Rep. 395 (1901) P. 161

King v. HoareENR 13 M. & W. 494

Buckland v. JohnsonENR 1854, 15 C. B. 145

London Association for Protection of Trade v. Greenlands Limited 114 L. T. Rep. 434 (1916) 2 A. C. 15

Bullock v. London General Omnibus CompanyELR 95 L. T. Rep. 905 (1907) 1 K. B. 264

Goldrei Foucard and Son v. SinclairELR 118 L. T. Rep. 147 (1918) 1 K. B. 180

Salford Corporation v. LeverELR 63 L. T. Rep. 658 (1891) 1 Q. B. 168

The BerninaDID=ASPMELR 6 Asp. Mar. Law Cas. 257, 260 58 L. T. Rep. 423 13 App.Cas.14

Frankenburg v. Great Horseless Carriage CompanyELR 81 L. T. Rep. 684 (1900) 1 Q. B. 504

Re Becu 118 L. T. Rep. 629 Swinfen Eady, L.J., at p. 682

Smurthwaite v. Hannay 71 L. T. Rep. 157 (1894) A. C. 494

O'Keeffe v. WalshIR 1903,2 I. R.681

Phillips v. BerrymanENR 1783, 3 Doug. 286

Ratcliffe v. EvansELR 66 L. T. Rep. 794 (1892) 2 Q. B. 524

Martin v. KennedyENR 1800, 2 Bos. & P. 69

Brunsdon v. HumphreysELR 1884, 51 L. T. Rep. 529 14 Q. B. Div. 141

Hoare v NiblettELR 64 L. T. Rep. 659 (1891) 1 Q. B. 781

Day v. PorterENR 1838, 2 M. & Rob. 151

Morris v. RobinsonENR 1824, 3 B. & C. 196

Darley Main Colliery v. MitchellELR 1886, 54 L. T. Rep. 882 11 App. Cas. 127

The BlackrockDID=ASPMELR 8 Asp. Mar. Law Cas. 591 81 L. T. Rep.417 (1900)P. 1

The DrumlanrigDID=ASPM 11 Asp. Mar. Law Cas. 520 (1911) B. C. 16

Brown v. WoottonENR 1606 Yelv. 67

Petrie v. LamontENR 1842, Car. & M., 93, 96

Kendall v. HamiltonELR 1879 41 L. T. Rep. 418 4 App. Cas., 504, 526, 542

Parr v. SnellELR 128 L. T. Rep. 106 (1923) 1 K. B. 1

Cooke v. Gill 1873, 28 L. T. Rep. 32 L. Rep. 8 C. P. 107

Read v. BrownELR 1888, 60 L. T. Rep. 250 22 Q. B. Div. 128, 131

Armstrong v. Lancashire and Yorkshire Railway CompanyENR 1875, 33 L. T. Rep. 228 L. Rep. 10 Ex. 47

Collision Vessel damaged by separate acts of two wrongdoing vessels Separate acts of neglect producing a single injury

Judgement of Hill, J. (infr) approved.

374 ASPINALL'S MARITIME LAW CASES. Ct. of App.] The Koursk. [Ct. of App. Feb. 11, 12, and 22, 1024. (Before Bankes, Scrutton, and Sakgant, L.JJ.) The Koursk. (a) ON APPEAL FROM THE ADMIRALTY DIVISION. Collision-Vessel damaged by separate acts of two wrongdoing vessels-Separate acts of neglect producing a single injury-Judgment againstone wrongdoer, whether bar to an action against the other wrongdoer-Judgment unsatisfied-Wrongdoers not joint tortfeasors. Where separate and independent acts of negligence cause or contribute to a single injury the actors are not joint tortfeasors, and judgment in favour of the injured party against one torl-feasor does not bar an action by such injured party claiming the same damage against the other tortfeasor. The plaintiffs' vessel was sunk in collision with the C.C. The collision was caused partly by the fault of the K., belonging to the defendants, which collided with the C.C. very shortly before the C.C. collided with the plaintiffs'1 vessel, and partly by the fault of the C.C, which contributed to the collision with the K. There was no negligent act during the interval between the collisions. The plaintiffs recovered judgment against the owners of the C.C, which judgment was only partially satisfied. Thereupon the plaintiffs brought the present action, claiming the same damage for which they had recovered judgment against the owners of the C.C. Held, that the negligent acts of the C.C. and the defendants' vessel being separate and independent, the judgment which the plaintiffs had recovered against the C.C. was nut a bar to a subsequent action against the defendants, notwithstanding that the injury caused by the two arts of negligence was identical. Judgment of Hill, J. (infra) approved. Appeal from a decision of Hill, J. (infra) in an action of damage by collision. The appellants (defendants) were the owners of the steamship Koursk. The respondents (plaintiffs) were the owners of the steamship Itria, and claimed to recover from the appellants damages for injuries sustained by the Itria in a collision which took place in April 1918 between the Itria and the steamship Clan Chisholm, which the respondents contended was caused by the fault of the Koursk. The case is reported upon the issue raised by par. 18 of the defence of the appellants, in which the defendants (appellants) pleaded that the plaintiffs (respondents) had recovered judgment against the owners of the steamship Clan Chisholm for the damage which the plaintiffs sustained by reason of the collision between the Itria and the Clan Chisholm and which they claimed in this action against the defendants, and the defendants said that, if contrary to their contentions the navigation of the Koursk was in any way responsible for the loss of or damage to the Itria, the plaintiffs had suffered damage by reason of a joint tor", committed jointly by the owners of the Clan Chisholm and the owners of the Koursk or their servants and had recovered judgment against, one of the said joint tortfeasors and were not entitled to proceed against the other. The following statement of facts is taken from the judgment of Hill, J.: "On the 18th April 1918 a collision took place between the Clan Chisholm and the Koursk, and almost immediately afterwards the Clan Chisholm collided with and sank the Itria. The owners of the Itria, who are the present plaintiffs, issued a writ against the Clan Chisholm on the 29th May 1918, and in that action, when the defence came to be delivered, the owners of the Clan Chisholm said the blame was entirely due to the Koursk. Upon that the plaintiffs issued a writ in rem. against the owners of the Koursk on the 2nd Aug. 1918. They did not arrest or seek to arrest the Koursk, probably for the reason, as appears from Lloyd's List of the 22nd June 1918, that this court in an action between the Clan Chisholm and the Koursk had decided that a warrant of arrest against the Koursk could not be issued upon the ground that she was in the employ of the British Government. The writ of the present plaintiffs, the owners of the Itria, against the Koursk was served on the 28th Feb. 1919, and an appearance was entered on. the 5th March 1919. The action of the plaintiffs against the owners of 'the Clan Chisholm proceeded and was tried at the same time as cross actions between the Clan Chisholm and the Koursk. That trial was on the 14th March 1919. On the 25th March 1919 the Admiralty Court gave judgment for the plaintiffs, the owners of the Itria, against the Clan Chisholm, and also a judgment of both to blame in the consolidated action of the Koursk and Clan Chisholm. That went to the Court of Appeal, and the judgment was varied. It went to the House of lords, where the judgment of the Admiralty Court was restored, on the 17th Feb. 1920. On the 5th March 1920 the (a) Reported by Geoffeey Hutchinson, Esq., Barrister-at-Law. ASPINALL'S MARITIME LAW CASES. 375 Ct. of App.] The Koursk. [Ct. of App. Clan Chisholm brought: an action for limitation of liability against the owners of the Itria. A decree was made on the 21st June 1920, and the registrar's report in favour of the owners of the Itria was made on the 29th Nov. 1920. It may be supposed from the fact that the Itria was sunk that the Clan Chisholm's limitation amount fell very far short of satisfying the damage suffered by the present plain tiffs. The only date I need mention is, I think, that in this year-on the 27th Fob-the Koursk was arrested in the present action, and the pleadings were all in this year. The reason why the Koursk was not arrested sooner was that, until a decision in the Commercial Court (which, I think, was given this year), it was not apparent that the Koursk, amongst other ships said to belong to the Russian Volunteer Fleet, were free from British Government control." Stephens, K.C. and Darby for the plaintiffs. Laing, K.C. and Dumas for the defendants. Cur. adv. vult. July 2, 1923.-Hill, J. (after stating the facts as above) gave the following judgment: The present suit was heard by me last month, and I found the Koursk to blame. I had already found in the previous action the Clan Chisholm to blame. The question which now arises is this: The plaintiffs have recovered judgment against the Clan Chisholm; can they now recover judgment against the Koursk ? If both actions had been tried together then, of course, the plaintiffs would have recovered judgment against both the owners of the Koursk and the owners of the Clan Chisholm, and each of those defendants would have been liable for the full amount of the plaintiffs' damages. But what is said is that inasmuch as on the 25th March 1919, the plaintiffs recovered judgment against the owners of the Clan Chisholm there was a right of recovery against the owners of the Koursk, then and there determined. I understand that it is not disputed that at common law, if the tort of the Koursk and the Clan Chisholm in damaging the Itria is one, then recovery and judgment by the plaintiffs against the Clan Chisholm, whether satisfied or not, will prevent recovery against the Koursk. I am here using figurative language, I know, for brevity, but, of course, when you talk of the name of a ship you ought really, to talk of die owners of the ship, but no one will i '-..understand me when I am...

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