The Miraflores and The Abadesa; Miraflores (Owners) v George Livanos (Owners)

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Pearce,Lord Wilberforce
Judgment Date16 February 1967
Judgment citation (vLex)[1967] UKHL J0216-1
Date16 February 1967
CourtHouse of Lords
Owners of Steam Tanker "Miraflores"
and
Owners of Steam Tanker "George Livanos" and Others

[1967] UKHL J0216-1

Lord Reid

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Pearce

Lord Wilberforce

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Owners of Steam Tanker "Miraflores" against Owners of Steam Tanker "George Livanos" and others, that the Committee had heard Counsel, as well on Wednesday the 23d as on Thursday the 24th, Monday the 28th, Tuesday the 29th, and Wednesday the 30th, days of November last (Captain E. V. St. J. Morgan, R.N., and Captain R. J. Galpin, R.D., R.N.R., an Elder Brother of the Trinity Corporation, being present as Nautical Assessors), upon the Petition and Appeal of the Owners of the Steam Tanker "Miraflores" of Via Canova 1, Lugano, Switzerland, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 13th of December 1965, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Owners of the Steam Tanker "George Livanos" and the Owners of the Cargo lately laden on board thereof and also upon the Case of the Owners of the Steam Tanker "Abadesa", 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, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 13th day of December 1965, in part complained of in the said Appeal, be, and the same is hereby, Discharged except as to Costs, and that the Decree of the Probate, Divorce and Admiralty Division of Her Majesty's High Court of Justice of the 15th day of July 1965 be, and the same is hereby, Varied by Declaring, That the blame for the damage in question in the Action should be apportioned as to two-fifths to the Owners, Master and Crew of the Steam Tanker "George Livanos", as to one-fifth to the Owners, Master and Crew of the Steam Tanker "Miraflores" and as to two-fifths to the Owners, Master and Crew of the Steam Tanker "Abadesa": and that the Appellants the Owners of the Steam Tanker "Miraflores" should be condemned in one-fifth, and the Second Respondents the Owners of the Steam Tanker "Abadesa" in two-fifths of the Claim of the First Respondents the Owners of the Steam Tanker "George Livanos" and the Owners of cargo lately laden on board thereof, proceeded for in the Action: And it is further Ordered, That each of the Respondents do pay, or cause to be paid, to the said Appellants a moiety of the Costs incurred by them in respect of the said Appeal, to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,

1

I have read the speech of my noble and learned friend, Lord Pearce. I agree with it and I cannot usefully add to it. I therefore move that the appeal be allowed and that the proportion of liability should be held to be assessed at two-fifths for the Abadesa, two-fifths for the George Livanos and one-fifth for the Miraflores.

Lord Morris of Borth-y-Gest

My Lords,

2

There were two actions before the learned judge and it was both convenient and desirable to try them together. The learned judge heard them over a period of six days. He was assisted by two of the Elder Brethren of the Trinity Corporation. He delivered a judgment in which he recorded his conclusions of fact comprehensively and with great care and clarity. So far as concerns the action brought by the George Livanos his conclusion was that the damage in question in that action was occasioned by the fault or default of the vessel herself and by the fault or default of the Miraflores and by the fault or default of the Abadesa. In this House no one has sought to challenge that conclusion. The further conclusion of the learned Judge was that the Miraflores should be condemned in one-sixth of the Plaintiff's damages as assessed and that the Abadesa should be condemned in one-third of such damages. The remaining half of the damages were held not to be recoverable by the George Livanos. That was for the reason that the learned Judge held that the George Livanos was herself half to blame for her own misfortune. On appeal to the Court of Appeal it was sought to vary the proportions of the apportionment of liability. An appellate Court will be very slow to interfere with the decision of a judge on such a matter. The speech of Lord Wright in The MacGregor [1943] A.C. 197 emphasises that there would have to be a very strong case to justify any review of apportionment if an appellate Court accepted the same view of the law and the facts as that taken by the learned judge. In the present case it was urged in a six day hearing in the Court of Appeal ( a) that the learned judge had been wrong in some of his conclusions in regard to fault and ( b) that the learned judge erred in law in his approach to the question of apportionment. In his very careful judgment Willmer L.J. fully reviewed all the facts and came to the conclusion that there was "no ground for holding that the leaned judge took a wrong view of the facts of the case". Winn L.J. (with whose judgment Danckwerts L.J. expressed agreement) said that he did not "entertain any markedly different view of ultimate significance upon any question of fact" from those expressed by Willmer L.J. On an acceptance, therefore, of the facts as found and as related in the judgments of the learned judge and of Willmer L.J. the question arises whether the apportionment of the learned judge can be assailed as having been based on error of law in approach.

3

One view expressed in the Court of Appeal was that a method of apportionment should be adopted which would achieve an assessment in respect of each ship of the overall responsibility for the occurrence of the double event of the collision and the partially consequential grounding. I do not agree with this view. In the action brought by the George Livanos the investigation concerns only the damage or loss to that vessel and it only becomes necessary to enquire as to the measure of the fault of each one of the three vessels in causing that damage or loss to that vessel.

4

It is to be observed that the Assessors in the Court of Appeal were of opinion (1) that as the George Livanos approached the area near No. 66 Buoy it was not necessary for her to continue with engines at half speed; (2) that she should have observed the sheer to starboard of the Miraflores; (3) that she should then have stopped engines and gone astern if necessary; (4) that had she done so and been handled skilfully grounding could have been avoided; (5) that when the Miraflores was seen to sheer to port the George Livanos should have gone full astern and let go both anchors. We addressed two questions to our Assessors. Those questions with their answers were as follows:—

1. Question: When Miraflores was seen to sheer to port, bearing in mind that the Caltex Manila and the Abadesa were seen to be approaching, what action by George Livanos was called for?

Answer: Full astern on engines.

Let go both anchors as soon as sufficient way is off the ship to be able to do so without parting cables.

Sound three short blasts.

2. Question: If such actions had been taken by George Livanos, would it have been likely to avoid grounding?

Answer: Yes. Provided George Livanos was handled with skill she should have avoided grounding.

5

In his judgment at the trial the learned judge set out in turn the various ways in which each one of the three ships had been in fault. I need not attempt to summarise his full findings. The sheer to starboard of the Miraflores took place approximately four minutes before the collision. The sheer to port of the Miraflores took place approximately two minutes before the collision. The George Livanos took no action then. She took no action until approximately three minutes after the sheer to port. The learned judge said:

"Had the George Livanos reduced her speed at the first, or even second, sheer of the Miraflores she would have had much more time, opportunity and room to manoeuvre and swing round in safety with her anchors holding, for her speed by the time she dropped her anchors would have been less. In all the circumstances, therefore, I find that in part the George Livanos was the author of her own subsequent misfortune."

6

He gave consideration to the question whether the George Livanos should fail to recover any part of her damage on the basis that she was the sole author of her misfortune. He rejected that view. He said:

"The negligence of all the three ships is so bound up with each other to produce the ultimate result that it would be unrealistic to find the George Livanos the sole author of her misfortune."

7

That being so, he was undoubtedly correct in holding that section 1 of the Maritime Conventions Act, 1911, applied. The question arises, however, whether there was any error of approach in his application of the section and, if so, whether it lead to any wrong result.

8

Section 1 (1) and the first two provisoes are as follows:

"Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good...

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