Yorkshire Dale Steamship Company Ltd v Minister of War Transport; The Coxwold

JurisdictionUK Non-devolved
JudgeThe Lord Chancellor,Lord Atkin,Lord Macmillan,Lord Wright,Lord Porter
Judgment Date19 May 1942
Judgment citation (vLex)[1942] UKHL J0519-1
Date19 May 1942
CourtHouse of Lords
Yorkshire Dale Steamship Company Limited
and
Minister of War Transport.

[1942] UKHL J0519-1

Lord Chancellor

Lord Atkin

Lord Macmillan

Lord Wright

Lord Porter

House of Lords

After hearing Counsel as well on Monday the 2d, as on Tuesday the 3d, Thursday the 5th and Friday the 6th, days of February last, upon the Petition and Appeal of The Yorkshire Dale Steamship Company, Limited, of Land of Green Ginger, Hull, in the County of York, praying That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 30th of July 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Minister of War Transport, 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 30th day of July 1941, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Right Honourable The Lord Chief Justice of England, of the 4th day of July 1941, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned 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 King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

The Lord Chancellor

My Lords,

1

This is an appeal from the Order of the Court of Appeal reversing the judgment of the Lord Chief Justice, Lord Caldecote, who affirmed an interim Award in favour of the present Appellants made in an arbitration between the parties by Sir Robert Aske, K.C. subject to a Special Case stated by the learned Arbitrator.

2

The Special Case finds the facts, which may be stated thus. The Appellants are the owners of the motor vessel "Coxwold" which was requisitioned by the Respondent on the 7th September, 1939, on the terms, accepted by the Appellants, of the Charter Party Form T.99 A and Form T.773. The effect of these documents is to leave with the Appellants the responsibility of insuring the vessel "except as otherwise provided" and the excepting provision is as follows:

"The risks of war which are taken by the Charterer are:—

( a) Those risks which would be excluded from an ordinary English policy of marine insurance by the following, or similar, but not more extensive clause:—

"Warranted free of capture, seizure, arrest, restraint, or detainment and the consequences thereof or of any attempt thereat, also from the consequences of hostilities or warlike operations, whether there be a declaration of war or not, civil war, revolution, rebellion, insurrection or civil strife arising therefrom or piracy";

( b) loss of or damage to the ship hereby chartered caused by:—

(i) hostilities, warlike operations, civil war, revolution, rebellion, insurrection or civil strife arising therefrom;

(ii) mines, torpedoes, bombs or other engines of war."

3

It is agreed that, as between the Appellants and the Respondent, the effect of the above-quoted provisions is equivalent to saying that the Respondent has insured the "Coxwold" against risks of war as above defined.

4

On the morning of May 7th, 1940, at about 2.45 a.m. the "Coxwold" stranded near the Damsel Rocks on the Isle of Skye. The "Coxwold" was in a convoy of four merchant vessels in charge and under the orders of a Naval Officer, and guarded by four destroyers. The convoy was proceeding, without navigation lights, at a speed of about 9 knots. The "Coxwold" was one of two "following" vessels, the other (to starboard of the "Coxwold") being the "Balzac". The "Coxwold" was carrying a cargo of petrol in tins from Greenock to Narvik, in Norway, for the use of His Majesty's Forces and was thus admittedly engaged in a warlike operation, such warlike operation being the proceeding from one war base to another war base with military stores for the use of British forces in the field. The night was not clear, visibility was poor, and at times there were heavy rain squalls. The general course of the convoy on the night in question was through the Hebridean Sea in a north-easterly direction, making to pass through the Little Minch with the Isle of Skye to starboard. Under the orders of the Naval Officer in charge, the convoy was zigzagging throughout, and at 7.5 p.m. on 6th May the course was set N.E. by N. magnetic. At about 7.15 p.m. an alteration was made of 8 points to starboard for half-an-hour to avoid what was thought to be an enemy submarine. No subsequent correction appears to have been made for this considerable deviation to starboard. At about 7.45 p.m. the course N.E. by N. was under the orders from the Commodore resumed, but zigzagging continued. At about 1.25 a.m. on 7th May the "Coxwold", owing to the poor visibility, gradually lost the shaded stern light of her leading ship. However she kept her course till about 2.30 a.m. At this time she again altered course to starboard (about 1/4 point) to pass through the lights of some approaching vessels, which were afterwards found to be the leading and escorting vessels of the convoy retracing their course for a reason which the Arbitrator considered unexplained. The course of N.E. by N. was then again resumed but at about 2.45 a.m. broken water was seen ahead and almost at once the "Coxwold" struck and grounded on the Damsel Rocks. The other "following" vessel, the "Balzac", also grounded at about the same time to the Southward of the "Coxwold", i.e., in her correct convoy station.

5

Before the Arbitrator it was contended, on behalf of the present Respondent, that the "Coxwold" met with a disaster owing to negligent navigation by those on board. It is unnecessary to consider whether, if this had been established, it would have shifted liability (as to which A-G. v. Adelaide S.S. Co. (the Warilda) [1923], A.C. 292, is the leading authority), for the Arbitrator finds that there was no improper navigation of the "Coxwold". The crucial passage in the Special Case on this point is:

"I find that there was no improper navigation of the 'Coxwold'. On the evidence before me, including that of the Commanding Officer of one of the Naval escort ships, I find that the course set for the convoy appeared to be a safe one; it was accurately followed by the 'Coxwold'; but there was an unexpected and unexplained tidal set which carried the 'Coxwold' some miles to the eastward; that the Neist Light was not being shown at full brilliancy as usual during fog and reduced visibility, and this set could not be detected by those on board the 'Coxwold'; … there was nothing to indicate to the Second Officer that the vessel was not on a safe and proper course or that that course or the speed of the vessel should be altered. … I find that the stranding of the 'Coxwold' was not due to negligence of those on board."

6

The Arbitrator's conclusion is thus expressed—

"If and so far as it is a question of fact, I find that in the above circumstances the loss in question was the direct consequence of the war-like operation on which the 'Coxwold' was engaged."

7

In the Court of Appeal, Lord Justice Luxmoore thought it was plain that the Arbitrator had found that the proximate cause of the stranding of the "Coxwold" was this unexpected and unexplained tidal set. With great respect to the learned Lord Justice, I do not so read the Special Case. The finding as to the tidal set is introduced in connection with the issue whether those on board the "Coxwold" were guilty of negligence. There is no finding that the tidal set was the proximate cause of the stranding. Reading the findings in the Case as a whole, I deduce that the Arbitrator's view was that, though the tidal set would have brought the vessel nearer to the land than she would otherwise have been, it was the combination with this of the alteration of course, ordered for the avoidance of an enemy submarine and persisted in for half an hour without subsequent correction, which was the effective explanation of the disaster.

8

There are a number of decisions of this House, arising out of the application to particular facts during the last war of the provisions of Charter Party T.99 in its then form, to which we have to look for illumination on this matter. The decisions themselves, and any propositions of law necessarily involved in arriving at the decisions are binding upon us, though there may be expressions of opinion not essential to the decisions which we are free to re-examine. It has been laid down that a vessel like the "Coxwold", which was carrying munitions of war from one war base to another, is "engaged in a war-like operation", and this was expressly admitted by the Respondent in the present case. This, however, is an entirely different thing from saying that any and every accident which happens to such a ship during her voyage is the consequence of a war-like operation. To suggest the contrary would be just as illogical as to say that if a postman, while engaged in the operation of delivering letters, meets with an accident in the street, this is necessarily the proximate consequence of his delivering letters.

9

Authority is hardly needed for the proposition that you do not prove that...

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