Scottish Court of Session Decisions

Messrs Gilroy, Sons, & Company, merchants, Dundee, owners of a cargo of jute carried on board the ship “Tilkhurst” from Chittagong to Dundee, as holders and onerous indorsees of the bills of lading, sued Messrs W. R. Price & Company, London, owners of the said ship, in the Sheriff Court at Glasgow for £6000 in name of damages sustained through the cargo being spoiled by sea-water.

The pursuers alleged that when the ship sailed from Chittagong upon 5th December 1888 it was in an unseaworthy condition, the water-closet pipe on the port side being cracked or otherwise faulty, and having no casing such as is usually put round such pipes and is necessary for their safety, and that the damage to said cargo was caused in consequence of the defective state of the pipe and/or the want of casing.

They pleaded—“(1) Said vessel not being in a seaworthy condition at the time of sailing, whereby pursuers' goods became injured, the defenders are liable to pay pursuers the loss so sustained by them. (2) The defenders having undertaken to deliver said goods in good order and condition at Dundee, and same being in a damaged state, they are liable to pursuers as holders and onerous endorsees of the bills of lading for the loss sustained thereby. (3) The pursuers, through defenders' breach of contract in their failing to supply a seaworthy ship, having suffered loss and damage to the amount claimed, decree should be granted, with interest and expenses as craved.”

The defenders explained that the bill of lading contained the following exception—“Any act, neglect, or default whatsoever of pilot, master, or crew in the navigation of the ship in the ordinary course of the voyage, and all and every dangers and accidents of the seas and rivers, and of navigation of whatever nature and kind excepted.” Further, that the pipe was in perfect order when the vessel left Chittagong, but that on the 11th, 12th, and 13th December she had encountered a severe gale with a very heavy sea, and that during the gale the force of the sea and the working, straining, and labouring of the ship, or one or other of these causes, had broken the iron portion of the said pipe at the flange on the ship's side.

They pleaded—“(1) The pursuers' averments being unfounded in fact, the defenders should be assoilzied. (3) In any view, the damage having emerged through one or other of the perils excepted from the contract, the defenders should be assoilzied.”

The Sheriff-Substitute ( Guthrie) allowed a proof from which it appeared that the ship had experienced heavy weather as alleged, that thereafter the leak and damage

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to the cargo were discovered, that such pipes as the one in question were usually and almost universally cased, and that this pipe had been originally cased but the casing had been removed, and that on this voyage it was not cased until the ship reached Galle after the storm. The bales of jute were kept off the sides of the ship by “toms” of wood, but it was not impossible for them to shift especially if any of the “toms” had dropped out of their place. The damage to the pipe was not such as was likely to be caused by the action of waves on the outside of the ship. It was more likely to have been caused by pressure from something within.

Upon 18th July 1890 the Sheriff-Substitute pronounced the following interlocutor:—“Finds that the defenders in December 1888 were carriers in their ship ‘Tilkhurst’ of a cargo of jute from Chittagong to Dundee, under the charter-party and bills of lading in process, and that they failed to deliver the same in good order and condition: Finds, with reference to the note, that the defenders have not proved that such failure was due to any cause for which they are not responsible: Therefore finds them liable in damages, &c.

“ Note.—… It is to be observed first of all that the defenders are under the usual obligation to deliver the jute in good condition at Dundee, and that as they have failed to do so it is incumbent on them to show that this is due to some cause for which they are not responsible. They are not of course liable for any extraordinary violence of the wind and waves, but although the exemptive clause which I have quoted goes further than the older clauses excluding liability for faults in navigation, it clearly does not apply (according to the construction adopted in Steel and Craig v. State Line, and similar cases) to anything that occurred before the commencement of the voyage.

The shipowners therefore remain under their ordinary liability for seaworthiness and for negligence in stowing the cargo. The question is whether they have succeeded in proving, as they have undertaken to prove, that the pipe was broken by extraordinary action of the sea for which they are not liable. Unless they make this out satisfactorily, it is plain, as I read the evidence, that it must be attributed either to the pressure of the cargo on the iron pipe during the voyage, or to some violence done to that pipe in the process of loading the bales of jute.

It is certain that on the 11th and 12th December the ship encountered very stormy weather in the Bay of Bengal, but one cannot help doubting whether this weather was of such extraordinary severity as to account by itself for the somewhat unusual accident which occasioned the damage in question. It is important to inquire whether there was anything in the condition of the ship or in the stowage of the cargo which contributed to the damage—in other words, whether the accident would have happened to a properly equipped vessel with a carefully stowed cargo.

[ After examining the evidence]—I come for these reasons to the conclusion that the defenders have left it doubtful whether the fracture was solely due to the violence of the sea. This is enough for the determination of the case, for it must be remembered that the pursuers are not in a case of this kind required to trace the damage to a specific cause. They have shown that the defenders' ship was, by the act of their servants before the voyage began, defective in a usual almost a universal precaution against accidents to the pipe in question, and it is certain that the same security is not afforded by the expedient of ‘tomming’ or propping the bales away from the pipe by loose pieces of dunnage wood. The pursuers have also shown that this defect of the ship's fittings might lead to the fracture in three ways, by exposing the pipe either to lateral pressure upon its flange from the jute bales moving during the voyage, or to pressure during the process of ramming or screwing in loading, or to a sudden blow from one of the bales when the native stevedores were carrying them forward. The conduct of the defenders' master himself at Galle indicates that he had what I may term a guilty consciousness with regard to the want of casing, that he himself then attributed the misfortune to this particular neglect, and upon the whole I think it is a more probable and natural way of accounting for what happened than to ascribe it to the sudden shock from without, which left no other trace of its action on that part of the ship.”

Upon 22nd October the following interlocutor was pronounced—“Allows joint minute to be received: Interpones the authority of Court thereto, and in respect thereof, and of the findings in the interlocutor of 18th July last, decerns against the defenders in favour of the pursuers for the sum of £3407, 11s. 9d. with interest thereon as craved: Finds pursuers entitled to expenses, &c.

The defenders appealed to the Court of Session, and argued—1. There was no evidence of unseaworthiness. 2. They had made out a prima facie case of damage by the perils of the sea, which were among the exceptions in the bill of lading, and the onus therefore lay upon the pursuers to show that the damage was not so caused— Williams v. Dobbie, June 27, 1884, 11 R. 982. This they had failed to do. 3. Casing was not essential. Other means, such as “tomming” the cargo, were sufficient. If the “tomming” here was improperly done, that was the fault of the mate, and fell under the exception in the bill of lading of “neglect or default of the crew in the navigation of the ship in the ordinary course of the voyage” from Chittagong to Dundee, which included the time of loading at Chittagong—Scrutton on Charter-Parties, &c. (2nd ed.) 180; Lawrie v. Douglas, 1846, 15 Mees. & Wel. 746; Good, &c. v. London Steamship Owners' Mutual Protecting Association, June 23, 1871, L.R., 6 C.P. 563; The “ Warkworth,” December 12, 1883, L.R., 9 Prob. Div. 20; Carmichael v. Liverpool Sailing Shipowners' Mutual Indemnity Association,

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May 19, 1887, L.R., 9 Q.B.D. 242 (Lopes, L. J., 251); Canada Shipping Company v. British Shipowners' Mutual Protection Association, July 30, 1889, L.R., 23 Q.B.D. 342; Serraino & Sons v. Campbell, July 1, 1890, L.R., 25 QBD 501; Norman v. Binnington, July 10, 1890, L.R., 25 QBD 475; The “ Carron Park,” August 5, 1890, L.R., 15 Prob. Div. 203; The “Accomac,” August 7, 1890, L.R., 15 Prob. Div. 208.

Argued for the respondents—1. The evidence was entirely against the damage having been due to stress of weather, and pointed entirely to pressure from within. The want of casing clearly led to the damage. The ship was unseaworthy for the purpose of carrying this cargo in safety, and the owners were liable. 2. The fault of not casing was not committed before the voyage from Chittagong began, and therefore was not excepted by the bill of lading, which did not relieve the shipowner from the initial warranty that the ship was seaworthy when she sailed— Steel & Craig v. State Line Steamship Company, July 20, 1877, 4 R. (H. of L.) 103. 3. Even if the time of loading was included in the voyage, and the accident was due to bad “tomming,” that was the fault of the stevedores, and was not covered by the exception in the bill of lading.

At advising—