The Soya ; Dirphys (Owners) v Soya (Owners) ; The Dirphys
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 07 May 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0507-1 |
| Date | 07 May 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J0507-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed)
Lord Justice Jenkins and
Lord Justice Hodson
Mr K.S. CARPMAEL, Q.C, and Mr R.F. STONE (instructed by Messrs Holman, Fenwick & Willan) appeared on behalf of the Appellants.
Mr H.V. BRANDON and Mr J.F. WILLMER (instructed by Messrs Thomas Cooper & Co.) appeared on behalf of the Respondents.
These are proceedings for the assessment of damages to the Plaintiff Appellants' vessel "Dirphys" arising out of a collision between that steamship and the Respondents' motor vessel "Soya" which occurred at the entrance of the Baltic Sea on the 30th December, 1950. It has now been agreed that both vessels were to blame for the collision, and the proportions have also been agreed - 30 per cent to the "Dirphys", 70 per cent to the "Soya". When the collision occurred, the "Dirphys" was proceeding in ballast to London, being at the time subject to a voyage charter (which I will hereafter refer to as "Charter No. 3") dated the 13th October, 1950. By the terms of that charter, the vessel "Dirphys" was to proceed to London and there load a cargo of sugar for transfer to the Indian port of Bombay. The result of the collision was that the "Dirphys" had to be diverted to the port of Rotterdam and she was there detained for a period, which again has been agreed at 20 days, for the purpose of repairs, the 20 days being the first 20 days of January 1951. The "Dirphys" was, however, able to carry out her obligations under Charter No. 3 and she was able to earn, and she earned, the full freight of over £8,000 due to her in respect thereof. So far, therefore, as profits were derived from Charter No. 3, no damage or loss whatever was suffered by the "Dirphys" as a result of the collision; but she arrived at Bombay on the 21st March, 1951, or thereabouts, later than she would have done had it not been for the collision - though how much later is a matter I will discuss presently. At that time (that is to say, from the month of December 1950) there was a marked and remarkable rise in freights, whether as a result of the Korean war or otherwise, especially in Far Eastern waters. On the 18th January, 1951, the agents for the owners of the "Dirphys" made a new fixture for which the "Dirphys" was later nominated. That also was a voyage charter, and I will refer to it as "Charter No. 4", theobligation thereunder being to load at the Malayan port of Dungun a cargo of metal or metal are and take it to a safe port in Japan. The freight under Charter No. 4, expressed in the terms of the daily rate of profit while engaged on the charter, was something like six times the daily rate earned under Charter No. 3. By "the terms of Charter No. 4, the ship was expressed to be expected ready to load about March 17th. The "Dirphys" was in fact ready to load some 14 days later or thereabouts; but, as in the case of Charter No. 3, again the full benefit, in terms of freight, of Charter No. 4 was reaped by the owners. Therefore, again, no damage from the collision can be attributable to any loss in the earnings of the "Dirphys" under Charter No. 4. According to the evidence, two more charters in immediate succession followed Charter No. 4, and again there was. no loss attributable to the collision in respect of either of these two last charters. But, as I have said, the ship spent 20 days at the port of Rotterdam and therefore arrived later than she would or could otherwise have done in these very profitable Far Eastern waters.
The case of the Appellants before us has been that the damage suffered should be treated as the loss of 20 days of "fishing" in these profitable waters at a rate equivalent to the rate of freight earned under Charter No. 4, or, alternatively, at an average, taking all the charters which I have mentioned together. As was said in the Courts below, the case of the Appellants was attractively simple. On the other side it was said: Since no loss was suffered at all in respect of any of the charters which were proved in evidence, the rule (a rule of practice and convenience) is that the loss ought to be estimated by multiplying the 20 days of detention by a daily rate of profit based on the freight recoverable under Charter No. 3, which was in fact the charter operative at the date of the collision and at the datewhen the repairs were being done at the port of Rotterdam. Put more specifically and arithmetically, what is said is: Had not the collision occurred, 62 days would have been occupied in the performance of Charter No. 3 instead of 82, and the freight recoverable under Charter No. 3 being divided by 62 giveb you a figure of approximately £144 per day. The damage, say the Respondents, should therefore be arrived at, according to this rule of convenience or practice, by multiplying the sum of £144 odd by 20. The rule of practice or convenience is said to be based on what fell from Lord Justice Bowen in The Argentine case in this Court and also from Lord Kerschell in the same case in the House of Lords. Alternatively, it is said that any loss which the owners of this vessel suffered is a matter of mere speculation; not a penny piece was lost in respect of any of the Charters 3 to 6 inclusive which I have mentioned, and to see what profit (if any) was lost, you would have at least to go on examining the commercial history of the ship till the end of her life, a plainly impossible task. It is therefore said, in the terms of Mr Justice Willmer's Judgment, which I read from page 43 of the Judgment, that it is at least doubtful whetherreally any damage was suffered at all. The learned Judge said: "It may very well be true that, but for the collision, the 'Dirphys' would have started her profitable Far Eastern trading, if I may so describe it, 20 days earlier than in fact she did; but whether in the long run the Plaintiffs would have been any better off has been left, as far as I can follow the evidence, as a matter of complete speculation. If the Plaintiffs could have proved that, because of those 20 days detention, they lost the opportunity of a complete voyage at those enhanced rates, then that would have been a measure of damage which I would well understand. But I do not knew, on the evidence which has been given, what the ultimateoutcome of this loss of 20 days may have been. For all that I know, that loss of 20 days may in fact have cost the Plaintiffs nothing at all. All the engagements to which the ship was committed were in fact carried out. There is nothing to show, one way or the other, what would have been the result if the programme had all been accelerated by 20 days". Therefore, says Mr Brandon, you must do the best you can, as in all cases of estimating damage, and it is certainly not shown that the sum awarded is materially wrong or based on any wrong principle. He also says, as a further alternative, that you should resort to some averaging.
I should not myself wish to say that there was, on the special facts of this case, some rigid rule binding us and that that rule was laid down for us by what was said in The Argentino case. The rule in marine collisions is, as I understand it, the ordinary rule applicable in all cases of estimating damage. At page 200 of 13 Probate Division, in The Argentino, Lord Justice Bowen said: "The damages recoverable from a wrongdoer in cases of collision at sea must be measured according to the ordinary principles of the common law". It is, I think, important to have in mind what were the facts in The Argentino case, having regard to the reliance placed upon the language used in the case by Lord Justice Bowen and by Lord Herschell. It is stated briefly in the headnote thus: "Previous to a collision between two vessels, the owners of ie of them" – that is the "Argentino' "had made an oral arrangement with a firm of shipbrokers that the vessel upon the completion of the voyage upon which she was then engaged should go to Antwerp, and there load a cargo in turn as one of a line of steamers, and proceed by a particular route to the Black Sea. In consequence of repairs necessitated by the collision, the vessel was not ready to start for Antwerp so as to load in turn, and, by arrangement, anothersmaller vessel was substituted for the injured vessel, the latter vessel" – that is the "Argentino" again – "shortly afterwards taking the place of the substituted vessel on a less remunerative route". It follows, therefore, that the "Argentino", as a result of the collision, lost the opportunity (which was, though not a matter of firm bargain, a matter of virtual certainty) of obtaining a particular profitable venture had she taken her place in the line at Antwerp. Instead of that, she had to undertake, or did undertake, a less profitable venture. On the face of it, therefore, the damage suffered was the difference between the greater profit she would have made had she taken her turn at Antwerp and the actual profit she made from the less remunerative venture. The real point in the case was whether, in estimating the damage, it was right (as this Court and the House of Lords said it was not) to pay regard to the actual profit made, not by the "Argentino" at all but by the other smaller vessel which took her place in the line at Antwerp. It is in the light of those facts that Lord Justice Bowen used the language quoted at page 202: "It remains still to be considered what is the value at which this loss of employment" - that is, the loss of the Antwerp venture – "is to be calculated in the case of a vessel which, but for the accident, would have been serviceably used by her owner in a particular manner. This is a difficult matter to calculate, but the...
To continue reading
Request your trial
-
Carisbrooke Shipping CV5 v Bird Port Ltd (The "Charlotte C")
... ... In The Soya [1956] 1 Lloyd's rep ... 557 the Court of Appeal ... Owners' items ... 152 ... ...
- Naxos, The (Aliartos)
-
The World Beauty ; Andros Springs (Owners) v World Beauty (Owners)
...into consideration by way of mitigation of damages derived from further employment of the "Andros Springs". 23 Similarly in The Soya (1956 1 W.L.R. 714) at page 725, Lord Justice Jenkins said: "Mr. Carpmael" - counsel in the case - "rightly observes that the measure of damages in a case of ......
-
Graymar Equipment (2008) Inc. v. Cosco Pacific Shipping Ltd., 2018 FC 974
...context must prove its case with reasonable certainty: See for instance Canada v Saint John Tug Boat Co, 1946 SCR 466 and the Soya [1956] 1 WLR 714 affirmed by the English Court of Appeal, [1956] 2 All ER 393. Reference was also made to Waddams, The Law of Damages, loose leaf edition at par......
-
How Do You Calculate Loss Of Earnings Following A Collision?
...Registrar considered and analysed various leading cases, including The Argentino (1888) 13 PD 191 (C/A), 14 App Cas 519 (H/L), The Soya [1956] 1 WLR 714 (C/A) and The Vicky 1 [2008] 2 Lloyd's Rep. 45 Having done so, the Registrar accepted ASTIPALAIA's approach to assessing damages. The Cour......