Die Jovis,
29° Novembris 1951
Parliamentary
Archives,
HL/PO/JU/4/3/1006
Viscount
Jowitt
Lord
Normand
Lord
Morton of
Henryton
Lord
Tucker
Lord
Asquith
of Bishop-
stone
HOUSE
OF LORDS
CARSLOGIE STEAMSHIP COMPANY
LIMITED
v.
ROYAL
NORWEGIAN GOVERNMENT REPRESENTED BY THE
NORWEGIAN SHIPPING AND
TRADE MISSION
29th
November, 1951.
Viscount
Jowitt
MY LORDS,
The facts
which gave rise to the present case may be stated as follows: —
On the
26th November, 1941, the Motor Vessel Heimgar was lying
at
anchorage off Oban. She was due to join a convoy to West
African ports.
Whilst she was so lying at anchor the Steamship
Carslogie collided with her.
It was admitted that the
Carslogie was solely to blame for the accident. On
the 27th
November the Heimgar was surveyed at her anchorage for
the
purpose of ascertaining the nature and extent of damage she
had sustained
as a result of the collision ; and this having been
ascertained Lloyd's Surveyor
issued a certificate of seaworthiness
enabling the ship to go to a repairing
port in the United Kingdom.
Accordingly she proceeded to Greenock on
the 28th November and
arrived there on the 30th November. Owing to
war restrictions all
the work required could not be carried out, and temporary
repairs
were effected at Port Glasgow. In the meantime, and before
these
temporary repairs had been effected, the representative of
the owners of
the Heimgar had arranged with the Ministry of
War Transport to send the
vessel to the United States instead of
to West Africa. This change of voyage
was made primarily in order
that she might go to a port at which permanent
repairs could be
effected. It was also considered by the owners desirable to
take
the opportunity of her being in dock to inspect her engines which
had
been giving some trouble. The port originally suggested was
Chester,
Pennsylvania, as it was hoped that a firm at Chester who
were very
experienced with Diesel motors might make any necessary
adjustments to
the engines. In fact Chester proved impossible and
she was allocated to New
York.
On the
completion of her temporary repairs she was given a certificate
of
seaworthiness authorising her to be continued in her present class
with-
out fresh record of survey subject to certain permanent
repairs at the owner's
convenience, and to her propeller being
renewed at the owner's convenience,
and she was stated to be fit
to carry dry and perishable cargoes.
When the
vessel sailed for New York after the completion of the
temporary
repairs she was in a seaworthy condition, but during her
crossing of the
Atlantic she experienced heavy weather and
sustained considerable damage
thereby which rendered her
unseaworthy. It was therefore necessary for
her to go into dry
dock at New York to have this heavy weather damage
repaired apart
altogether from the desirability of effecting permanent repairs
in
respect of the collision damage. The heavy weather damage was not
in
any sense a consequence of the collision, and must be treated
as a supervening
event occurring in the course of a normal voyage,
during which the Heimgar
was on hire.
She
remained in dry dock in New York from the 2nd January to the
1st
March, 1942, being thus off hire for a period of approximately
50 days.
During her time in dry dock the repairs due to the
collision, the engine
repairs and the heavy weather repairs were
all done concurrently. It was
agreed that ten days out of the 50
should be allocated to the repair of the
collision damage and that
30 days would have been required for the heavy
weather damage.
2
The
question for decision was whether the owners of the Carslogie
were
liable to pay, in addition to the cost of the
repairs occasioned by the collision,
the loss of chartered hire
for ten days, whilst the Heimgar was in dock,
together with
certain items in respect of war risk insurance and war bonus.
These
three items were considered as all turning on the same principle,
and
it was agreed that they succeeded or failed together. The
Registrar allowed
the sum claimed by way of damages for detention
and allowed the two
remaining items as a necessary consequence of
allowing the first item. He
considered that where a collision had
taken place in consequence of which
the innocent ship was on her
way to the repairers when another casualty
occurred which
necessitated immediate repairs, the owner was entitled to
recover
damages for detention in respect of the collision repairs from
the
owners of the wrong-doing ship. Willmer J. reversed this
decision, and the
Court of Appeal (Bucknill L.J., Denning L.J.,
and Lloyd-Jacob J.), reversed
this decision of the Judge and
restored the decision of the Registrar. From
this decision of the
Court of Appeal the Appeal is brought to Your Lordships'
House.
For the
Appellants it was contended that as a result of the heavy
weather
damage which was subsequent to the collision, the owners
of the Heimgar
had not suffered any damage by reason of her
detention, since during the
whole time that the collision repairs
were being undertaken the ship was
undergoing repairs to render
her seaworthy, which repairs were necessitated
by heavy weather.
It was further contended that as the heavy weather damage
was the
only damage which rendered the vessel unseaworthy this must
be
regarded as the effective cause of the detention.
For the
Respondents it was contended that as the owners of the Heimgar
were
entitled to have permanent repairs effected as a consequence of
the
collision and had actually and properly decided to send the
ship to New
York to have these repairs effected, they had become "
necessary ", and it
was argued that her owners were entitled
to claim against the owners of
the wrong-doing vessel for damages
due to the detention. In support of
this contention they relied
upon the rule laid down in the Haversham Grange
([1905] P.
p. 307).
My Lords,
at the outset I think it is well to bear in mind the
elementary
principle that it is for the plaintiff in an action of
damages to prove his
case to the satisfaction of the court. He has
to show affirmatively that
damages under any particular head have
resulted from the wrongful act of
the defendant before he can
recover such damages. This principle applies
to maritime
collisions as much as it does to collisions on land. Mr. Roscoe
hi
the third edition of his book dealing with the Measure of Damages
in
Maritime Collisions, at page 10, cites the Marpessa [1907] AC 241 as illus-
trating the proposition that the plaintiffs
were only entitled to recover damages
by way of demurrage in
respect of such money as the court was reasonably
satisfied had
been lost. He points out that the same principle has been laid
down
in the United States:
" It
is equally well settled, however, that demurrage will only be
allowed
"when profits have actually been, or may be
reasonably supposed to have
"been, lost, and the amount of
such profits is proven with reasonable
"certainty." (The
Conqueror (1896) 166 U.S. (S.C.) 110 at p. 125.)
Moreover,
it is well established that in considering the damages occasioned
by
a wrongful act all those facts which have actually happened down
to
the date of the trial must be taken into account. (The Kingsway
(1918) P.
per Scrutton L.J. at p. 362.) For this reason it is
undoubted that if a
collision took place which would have
occasioned a time in dock for repairs
and the ship is sunk before
these repairs can be effected, any claim for loss
of time which
would have been occupied in such repairs must fail.
Scrutton
L.J. in the York ([1929] P. at p. 185) puts other
illustrations
showing circumstances which may make it impossible
to substantiate a claim
for damages for loss of profitable time. A
ship may be detained by ice
so that she could not trade at all, or
possibly by an embargo, and other
illustrations can be given.
3
If I may
use the expression of Lord Justice Bucknill, who delivered
the
leading judgment in the Court of Appeal, damages are payable
for the
detention of a ship because she is a profit-earning
machine. If she ceases
to be a profit-earning machine it follows
that she can sustain no damage
from being detained until she again
becomes capable of earning profit.
In other words, it is not
enough to consider whether the ship was detained
by the wrongful
act of the Defendant. It is essential to consider whether
damages
were caused to the Plaintiff by reason of such detention. So
con-
sidered, it will be seen that the problem is not solved by
answering the
questions: " Was the ship detained and if so
what was the cause of her
" detention? " It is essential
to answer the further question: " Assuming that
" she
was detained and assuming that she was detained by the wrongful act
"
of the Defendant, did the Plaintiffs sustain damages as a result of
such
" detention?"
In the
present case the ship, having had temporary repairs, was in
a
seaworthy condition when she sailed across the Atlantic. It is
no doubt the
fact that she was sent on this particular voyage in
order that permanent
repairs might be carried out. At the same
time it must be noted that the
owners had not entered into any
contract to send her for repairs and would
have been free had they
been so minded to send her back from New York
without such repairs
being effected. I am willing to assume, without deciding
the
question, that the collision was a cause of her detention.
Still the fact
remains that when she entered the dock at New York
she was not a profit-
earning machine by reason of the heavy
weather damage which had rendered
her unseaworthy. If there had
been no collision she would have been
detained in dock for 30 days
to repair this damage. I cannot see that her
owners sustained any
damages in the nature of demurrage by reason of the
fact that for
ten days out of the 30 she was also undergoing repairs in respect
of
the collision.
Willmer J.
considered that the repairs to the engines would not have
prejudiced
the owners' claim to recover damages for loss of profitable time.
He
deals with this question as follows:
"
Although the collision repairs were not immediately necessary, the
"
owners of the ' Heimgar ' were entitled to have them carried out,
"
and if they did so would be entitled to take advantage of the
occasion
" to carry out such other repairs of their own as
they might think fit.
" The learned Registrar has found,
rightly in my judgment, that the
" vessel was diverted to New
York for the express purpose of undergoing
" the collision
repairs, and it matters not that, as I have found, there
"
was a subsidiary purpose of carrying out a machinery overhaul at
"
the same time. Had there been no subsequent heavy weather damage
"
necessitating immediate repair, it seems to me that in accordance
"
with the principles applied by the House of Lords in the Chekiang
"
([1926] Appeal Cases, p. 637) the Plaintiffs would clearly have
been
" entitled to recover damages in respect of ten days of
the detention,
" notwithstanding the fact that they took
advantage of the occasion
" to proceed with their machinery
overhaul."
My Lords,
I am in complete agreement with this view.
It is well
established that if a ship goes into dock for repairs of
damage
occasioned by a collision brought about by the fault of
another vessel, the
owners of that other vessel must pay for the
resulting loss of time, even
although her owners take advantage of
her presence in the dock to do some
repairs which, though not
necessary, were advisable. Thus, in the case of
The Ruabon
Steamship Company. Limited v. The London Assurance
([1900]
A.C. p. 6), the Ruabon suffered damage on the
voyage which made it neces-
sary for her to be put into dry dock.
The owners (without causing delay or
increase of dock expenses)
took advantage of her being in dry dock to have
the survey of the
vessel for renewing her classification made, though this
survey
was not then due. It was decided that the expenses of getting
the
vessel into and out of dock as well as those incurred in the
use of the dock
4
fell upon
the Underwriters alone. In the Acanthus ([1902] P. p. 17),
whilst
the vessel was in dry dock to repair collision damage for
which the defendants
were liable, the owners took advantage of the
opportunity to fit her with
bilge keels. It was decided that,
notwithstanding this fact, the wrong-doers
were not entitled to
any contribution towards the cost of dry docking. In
the Chekiang
([1926] A.C. p. 637) H.M.S. Cairo suffered damage in a
collision
for which the owners of the Chekiang were to
blame. After being tempo-
rarily repaired, she proceeded to Hong
Kong for permanent repairs. The
Admiralty took advantage of her
presence in the dock to undertake her
annual refit, though this
was not then necessary. It was decided that this
fact did not
avail the defendants and could not be prayed in aid by them
in
reduction of their liability. Lord Dunedin, at page 642, points out,
how-
ever, that if the act of the owner was of necessity, it would
have been
otherwise.
These
cases support the view that the time occupied in the engine
overhaul
which, however desirable it may have been, was not then
necessary, could
not have been used to reduce any amount which
might have been due from
the owners of the wrong-doing vessel by
way of damages for detention ; but
they have no bearing on the
effect of the heavy weather repairs which had
made the Heimgar
unseaworthy.
The case
mainly relied upon by the Respondents as bearing upon this
latter
question was the Haversham Grange ([1905] P. p. 307). In that
case
the Maureen had suffered two collisions, for the first
of which she was held
partly to blame, and for the second of which
she was held free of all blame.
Each collision made it necessary
that she should go into dry dock. The
two sets of repairs were
carried out together: 22 days were taken in repairing
the damage
due to the first collision and six days in repairing the damage
due
to the second collision, these periods being concurrent and not
cumula-
tive and successive. The question arose which of the two
wrong-doing
vessels should pay the undoubted damages which the
owners of the Maureen
had suffered from the delay to their
steamship, and a separate question arose
as to the dock dues which
had been incurred.
With
regard to the demurrage, Sir Gorell Barnes P. held that as
the
Maureen had already been incapacitated by the first
collision before the
second collision took place, the repair of
the damage done by the second
collision did not in any way delay
her, and therefore the second wrong-doer
was not responsible for
any part of the damages due to delay. He dealt
with the dock dues
upon the same basis. On appeal, the decision of the
President was
confirmed with regard to demurrage, but it was decided that
the
claim for dock dues ought to be dealt with on a different basis, and
it
was decided that the amount due in respect of dock dues should
be divided
between the two wrong-doers.
My Lords,
I think that there can be no logical distinction between the
claim
for damages for delay and for dock dues and, believing as I do, that
the
decision as to damages for delay was correct, it follows in my
view that the
latter decision in respect of dock dues cannot be
supported. I am confirmed
in this view by this further
consideration. The Ruabon ([1900] A.C. p. 6) was
a case
which was concerned solely with dock expenses. No question as
to
damages for delay arose in that case. The Chekiang ([1926]
A.C. p. 637)
was a case which was concerned solely with damages
for delay. No question
as to dock expenses arose in that case. Yet
Lord Dunedin in the latter
case (at p. 641) regards the decision
of the House in the Ruabon about dock
expenses as
concluding the question in the Chekiang about damages
for
delay. This supports the view that in principle the two
questions are
indistinguishable.
The case
from which I have derived most assistance is the Vitruvia
(1925
Session Cases, House of Lords, p. 1). The Vitruvia
had been in collision
with the Carperby. For this
collision the Carperby was alone to blame. The
damage
sustained by the Vitruvia did not render her unseaworthy.
She
continued to make voyages and it was not until several months
after the
collision that she came to Glasgow to have the collision
damage repaired.
5
When the
case first came to the House of Lords the Appellants put forward
an
argument founded upon the alleged facts that the Vitruvia, before
she
entered the dock to carry out the collision repairs, was in
fact unseaworthy,
that the defect rendering her unseaworthy could
only be remedied in a
dry dock and that no dry dock was available
until after the collision damage
had been repaired. Accordingly
they sought to argue that there had been
no damages for delay
occasioned by the repair of the collision damage.
As this matter
had not been properly pleaded and the relevant facts had
not been
found, the House sent the case back for a further ascertainment
of
the facts. The further findings established that the Vitruvia
was in fact
unseaworthy owing to a small defect which could
have been put right in a
few hours ; and that it was not necessary
to obtain a dry dock to remedy this
defect. Upon these facts Lord
Dunedin (at p. 5) was of the opinion that
the Respondents had not
established the defence they sought to make. Had
the facts
established that the unseaworthiness of the vessel could not
have
been made good until after the collision repairs had been
completed it
is plain that he would have decided that the owners
of the wrong-doing vessel
would not have been liable for any
damages for delay whilst the collision
repairs were being carried
out.
Lord
Phillimore put the matter in this way: " When this case was
before
" your Lordships' House on the last occasion, a
formidable point was made
" by the Appellants. They said, '
you must not charge us for the time
" ' spent in repairing
the damage caused by the collision, for you lost no,
" ' time
by it, because you had to wait for the dry dock into which you
could
" ' put your ship in order to repair her propeller'."
Lord Phillimore adds,
however, that this case was not proved, for
it was not necessary for the owners
of the Vitruvia to wait
for a dry dock; they would have been able to do
the work by
tipping the ship in wet dock, and accordingly he decided that
the
owners of the Vitruvia were entitled to be paid for the loss of
profitable
time during which the repairs were being effected.
The case
of the Vitruvia is not referred to in the judgments of the
Court
of Appeal, though I feel confident that had the Judges
considered this case
and the grounds upon which it was decided
they would not in the present
case have come to the conclusion to
which they in fact came.
A similar
question arose in the Hauk (30 Lloyds List Law Reports, p.
32).
In that case the Cameronia had sustained damages in a
collision for
which the Hauk was to blame, but her
seaworthiness was not affected, and
after temporary repairs she
continued her trading. Subsequently she sustained
sea damage to
her rudder which rendered her unseaworthy and necessitated
immediate
repair. The question arose whether the wrong-doing vessel
was
responsible for any loss of profitable time occasioned during
the time the
collision repairs were being carried out.
Lord
Constable at p. 36 states his view in the following words:
" I
think it would be difficult to affirm that the collision was not a
"
cause of the detention, though the detention was immediately
brought
" about by the accident to the rudder. But the
present question does
" not seem to me to depend upon whether
in strictness the collision
" or the accident to the rudder
was the true cause of the detention.
" Even on the assumption
that the repair of the collision damage was
" the true cause,
the pursuers must also show that the detention of
" the
Cameronia for such repair resulted in a loss of profit, and
they
" cannot do so when in fact the Cameronia was by
reason of the
" accident to the rudder disabled from earning
any profit before she
" was laid up. The loss of profit was
not the direct and natural con-
" sequence of the defenders'
wrongful act, nor did it represent what
" but for the
collision the owners would have earned by the use of
" their
ship."
Lord
Justice Bucknill in his judgment differentiated this case on
the
ground that if the heavy weather damage was done after the
collision damage
the rule laid down in the Haversham Grange
should apply. My Lords, both
in the Hauk and in the
present case the unseaworthiness was caused by an
6
event
which happened after the collision, and I see nothing in the rule
laid
down in the Haversham Grange which in any way
conflicts with the decision
in the Hauk. That rule, as I
have already pointed out, rightly treats the first
wrong-doer who
renders the vessel unseaworthy as responsible for the con-
sequent
delay, notwithstanding the act of a second wrong-doer who
also
rendered the ship unseaworthy; but the rule is addressed to
causation, for it
was clear in the Haversham Grange that
damages had resulted from the
detention.
In the
present case I think that the damage brought about by the
collision
did not in the events which happened cause any loss of
profitable time to
the owners of the Heimgar because when
she entered dry dock she was
not a profit-earning machine.
This is in
substance the ground taken by Willmer J. in his judgment when
he
says:
" The
owners of the Heimgar would have had no use of their ship
"
and would have earned nothing by her use, for the simple reason
"
that at the time when the collision repairs were executed the ship
was
" completely immobilised as the result of damage received
in the heavy
" weather encountered during the Atlantic
voyage."
My Lords,
I agree with this reasoning and accordingly I am in favour
of
allowing the appeal and restoring the judgment of Mr. Justice
Willmer.
Lord
Normand
MY LORDS,
When a
Plaintiff claims damages from a tortfeasor for the detention of
a
chattel while it is undergoing repairs he undertakes to prove, not
only
that the repairs were rendered necessary by the tortious act
or negligence
and that the period of detention in respect of which
he claims was necessary
for the execution of the repairs, but also
that by the deprivation of the use
of the chattel during the
detention he suffered pecuniary loss. If the action
is raised and
the damages have to be assessed before the repairs are
executed,
the Court is perforce dealing with damages which may or may
not
arise in the future, and it will require proof of sufficient
certainty that
the Plaintiff will suffer measurable damage, making
allowance for the chance
that by some subsequent casualty the
chattel may be destroyed before the
repairs are executed, or that
when the chattel comes to be repaired the
deprivation of its use
may involve no pecuniary loss. (The Kingsway
[1918] p.
344.)
In the
more usual case, when the damages are assessed after the repairs
have
been executed, the Court has before it the facts as they have
occurred.
It is no longer dealing with the future but with past
history, and in the
assessment proof of the facts displaces
estimates of probabilities. This
principle has long been
established and has been followed not only in many
claims for
collision damage but also in a wide variety of other cases in
which
compensation or damages have been assessed. For example, in
Bwllfa
and Merthyr Dare Steam Collieries [1903] AC 426 it was
applied
to a claim for statutory compensation. In Williamson v.
Thorneycroft [1940]
A.E.R. 61 the Court of Appeal applied
it when a widow claiming under Lord
Campbell's Act died before the
assessment of the damages, and in a recent
case this House held
that it has been rightly applied by the Court of Session
where the
pursuer in a claim for solatium died before the solatium
was
assessed (Kelly v. Glasgow Corporation [1951]
S.C. (h.l.) 15).
The facts
of the present case, which it is unnecessary for me to narrate
again
in detail, show that the " Heimgar ", while seaworthy and
able for a
trading voyage after temporary repairs rendered
necessary by a collision
with the "Carslogie", suffered
weather damage so great that immediate
7
repairs
were necessary before she could continue trading. She entered
dry
dock at New York and there three sets of repairs were carried
out, the
permanent repairs required to make good the collision
damage, the repairs
immediately necessary to make good the heavy
weather damage, and repairs
to her auxiliary machinery which were
not immediately necessary. These
repairs were carried out
concurrently. The " Heimgar " was detained in
dock 50
days in all, but the collision repairs alone would not have
detained
her for more than 10 days, whereas the repair of the
heavy weather damage
alone would have detained her 30 days. On
these facts she was, in conse-
quence of the heavy weather damage,
a vessel incapable of gainful use during
the ten days necessary to
complete her collision repairs, and no claim against
the "
Carslogie " for deprivation of profits in respect of this
detention can
be established.
Every case
depends on its own facts, but I find the strongest support for
this
conclusion in The Vitruvia 1925 S.C. [h.l.] 1. The "
Vitruvia " suffered
damage by collision with the "
Carperby " for which the " Carperby " was
alone to
blame. This damage did not make her unseaworthy or prevent
her
from trading. After several months of profitable trading her
owners
brought her to Glasgow solely for the purpose of having the
collision repairs
carried out. She arrived at Glasgow on 22nd
August and the repairs were
completed on 3rd September. Her owners
claimed against the " Carperby "
for loss of earnings
during these 22 days. On her voyage to Glasgow it
had been noticed
that her propeller was making a knocking sound, and after
her
arrival the engineer reported that he suspected there was something
wrong
with the propeller. On 2nd September a dry dock became
available for the
first time since her arrival, and she entered it
that day for examination of
her propeller. It was then found that
a nut on the propeller was loose and
needed tightening. The repair
was completed in a few hours. While this
defect existed it would
have been imprudent to send the ship to sea. The
case came before
this House on two occasions. On the first occasion the
House
allowed parties an opportunity to amend their pleadings so as
to
present in clear form the defence that the " Vitruvia "
was unseaworthy
during the whole period in respect of which
damages were claimed and
accordingly that there was no loss in
respect of detention during that period,
and the pursuers' reply
that the propeller defect would not have prevented
her from
completing her next voyage because it could have been
quickly
repaired though no dry dock was available to her. That
this House regarded
the defence as relevant is clear, for it
remitted the case to the Court of Session
with a direction to
allow the proposed amendments and a proof thereof.
As a result of
the proof it was found that the propeller defect could have
been
repaired in a few hours without dry-docking the ship.
When the
case was reported to the House, Lord Dunedin said (1925 S.C.
[H.L.]
at p. 5): "If the defenders had been in a position to say,
'your
" ' vessel when it arrived on the 12th was in what is
admitted to be a prac-
" ' tically unseaworthy condition ',
and if they had been able to go on to
" say, ' it would not
have been possible for you to get it into a seaworthy
" '
condition before the time when you went into dry-dock on the 2nd of
"
' September', then they could have added, I think, what always can
be
" said by defenders, ' you were bound to use that time in
executing the
" ' repairs'. In other words, it would not have
been possible for the pur-
" suers to say, ' we will wait
until the 2nd of September when we can
" ' put our vessel
into dry dock, and then we will do our repairs and charge
" '
you for demurrage during the time we are doing them ' ". Then
his Lord-
ship went on to point out that the defenders could not
say that, because
the propeller defect could have been remedied
and the vessel made sea-
worthy in a very few hours without the
use of a dry dock. That case would
have been indistinguishable
from the present if dry-docking had been
necessary to make good
the propeller defect. On that hypothesis the defence
would have
succeeded. A seaworthy ship had been directed in each case
to a
repair port. In The Vitruvia the only purpose in sending the
ship to
Glasgow was the repair of the collision damage; in the
present case the
repair of the collision damage was one and the
chief of three purposes in
sending the ship to New York, the other
two being to make a voyage on
8
hire and
to carry out repairs to the auxiliary engines. In both cases
the
ships suffered on the voyage damage rendering them unfit for
another voyage.
In both cases any period of detention necessary
for the completion of the
repairs to make the ship seaworthy had,
if possible, to be used by her
owners to execute the collision
repairs, and from that detention no claim
for loss of profits as
part of the collision damage could arise.
The
Hauk [1928] S.L.T. 71 is also a case closely resembling the
present
case. The " Hauk" had suffered damage in a
collision with the
" Cameronia " for which the "
Cameronia " was held liable to the extent of
two-thirds. As
in the present case, some temporary repairs were carried
out.
Then, after a period of trading, she suffered storm damage
which
necessitated her being docked at once for repair. The storm
damage repairs
and the collision damage repairs were put in hand
at the same time, but
the storm damage took longer to repair than
the collision damage. The
pursuers claimed a sum in the name of
loss of profits during detention.
The Lord Ordinary, Lord
Constable, disallowed the claim on the ground
that though the
collision damage might be a cause of the detention during
their
repair, the pursuers failed to show that the vessel could have
earned
any profit in that period. The Lord Ordinary regarded this
case as governed
by The Vitruvia, and his judgment is a
valuable clarification of the law
of damages in such cases as
this.
None of
the other cases cited conflicts with the decision of Willmer, J.,
in
this case, or with The Vitruvia or The Hauk. The
decision on demurrage
in the Haversham Grange [19051 P.D.
p. 309 is no exception. It is indeed
another example of the
general rule that the owner of a chattel who claims
damage for
detention from a wrong doer must show that, apart from the
wrongful
act of the defendant, the chattel was capable of profitable use
during
the period of detention. In The Haversham Grange the
" Maureen " was in
collision with the " Caravellas
" on 25th December and with the " Haversham
Grange "
on 26th December. The owners of the " Caravellas " agreed
to a
decree of both to blame, and the owners of the "
Haversham Grange"'
admitted sole liability. Each collision
caused damage which it was essentially
necessary to repair. The
owners of the " Maureen " recovered 50 per cent,
of
their loss including loss on account of detention from the owners of
the
" Caravellas ", and sought to charge the owners of
the " Haversham Grange "
with the remaining half share
of demurrage damage. There was also a
claim for dock dues, which I
pass over in the meantime. One of the proved
facts was that the
repair of the damage done by the " Haversham Grange "
had
not increased the period of detention. Sir Gorell Barnes P. held
that
as the " Maureen" was already incapacitated by the
collision with the
" Caravellas " when she collided with
the " Haversham Grange " the claim
against the "
Haversham Grange " for loss of earnings during repair
failed,
and that decision was affirmed by the Court of Appeal. As
in that case
so in this the claim fell to be disallowed because
the plaintiffs failed to prove
that the ship could have earned
profits during the period of detention caused
by the repairs
rendered necessary by the defendants' tort. There has been,
I
think, some misunderstanding of the decision in The Haversham
Grange.
Thus, in his judgment in The Hauk, Lord
Constable seems to over-
emphasise the importance of the fact that
the collision with the " Caravellas "
was prior in time
to the collision with the " Haversham Grange ".
The
emphasis should be on the existing disablement of the "
Maureen " when the
" Haversham Grange " collided
with her.
I
respectfully think that the Court of Appeal in the present case erred
in
thinking that the issue could be settled by determining whether
there was a
causal connection between the collision damage and the
detention of the
" Heimgar" for 10 days. This
particularly appears in the judgment of
Denning, L.J. On this
point I am in agreement with the Lord Ordinary's
judgment in The
Hauk. It is, I think, difficult to say that the collision
damage
was not, while it was being made good, a cause of the
detention
of the ship. But the real issue is whether in these ten
days the vessel was
a potential profit earning vessel or not.
Bucknill, L.J., thought that the
fact that the " Heimgar "
was re-routed to New York for the express purpose
9
of having
the collision repairs carried out and that it was when she was
on
this voyage that she suffered the heavy weather damage, was a
material
circumstance which distinguished this case from The
Hauk. So, also,
Lloyd-Jacob, J. thought that " the
decision to immobilize " the " Heimgar"
for
collision repairs was the determining factor. But to make that
distinc-
tion a ground of judgment is inconsistent with The
Vitruvia, which was
unfortunately not referred to in any of
the judgments. Bucknill, L.J., fell
into what I humbly think is
the error of supposing that The Haversham
Grange is
authority for a rule that liability for detention attaches to
a
tortfeasor merely because the damage done by his tort is prior
in time to a
subsequent damage, whether caused by a tort or by
some other cause.
For example, he says: " I think it is
essential to know whether the heavy
" weather damage was
received before or after the damage by collision ".
But, with
respect, if the fact is that one of two casualties made the
vessel
unseaworthy and the other did not. the problem of liability
is solved and
the time sequence is irrelevant. In The Haversham
Grange the time sequence
was important because the damage
suffered by the " Maureen " in each
of the two
collisions was enough to make her unseaworthy.
On the
view of the case which I have taken it is not necessary to
consider
the bearing of the repairs to the auxiliary engines,
which occupied 50 days,
on the claim for damages for detention.
But I may be allowed to say that
I agree with all that has been
said on that point by my noble and learned
friend on the Woolsack.
For the
reasons I have given I would allow the appeal.
My Lords,
in this appeal the liability for dock dues is not in issue.
We
were told that they had been apportioned, and there was no
appeal against
that. This is in accordance with the decision of
the Court of Appeal in The
Haversham Grange reversing Sir
Gorell Barnes. P. In my opinion the
liability for dock dues
is the same as the liability for the demurrage, and the
decision
in The Haversham Grange on this point is inconsistent
with
principle and with a decision of this House.
The history of the
matter must be shortly set out. In
The Ruabon [1900] AC 6 a vessel
was damaged by a peril
insured against and was put into dry dock for
the necessary
repairs. The survey of the vessel for renewing her
classifi-
cation was not due at that time, but the owners took
advantage of her
being in dry dock to have the survey made without
increasing the period
of detention. It was held that the
liability for the dock dues fell upon
the underwriters alone. It
will be observed that that was a case in which
the liabilities of
the parties inter se rested upon contract. But in
The
Acanthus [1902] P 17, the question of liability, both
for dock dues and
for demurrage, between the plaintiff and a
tortfeasor was decided by Sir
Francis Jeune by applying the
rule laid down in The Ruabon. The facts
were that when
the vessel was in dry dock for the repair of collision damage
the
owners took advantage of the opportunity to fit bilge keels
without
causing increased detention or increase of dock dues.
It was held by Sir
Francis Jeune P. that the tortfeasor was liable
for the dock dues and for
the demurrage, and he had no distinction
between them. The next case
was The Haversham Grange [1905] P 307, which, as I have already indi-
cated, made a radical
distinction between liability for dock dues and liability
for
demurrage. The last case to which I need refer is The
Chekiang
[1926] A.C. 637. In that case the Admiralty took
the opportunity of the dock-
ing of H.M.S. " Cairo " for
collision repairs to do certain refitment repairs
not immediately
necessary. It was held that the owners of the vessel to
blame
for the collision were liable in damage for the deprivation of the
use
of the vessel for the period of the collision repairs. Lord
Dunedin in his
speech said that the question was concluded by The
Ruabon and he also
approved of the decision in The
Acanthus. Lord Phillimore took the
same view of the case,
and said that the decision upon dock dues in The
Haversham
Grange might have to be reconsidered. The Haversham
Grange
decision is not consistent with the ratio decidendi
of The Acanthus and The
Chekiang.
10
I want
only to add that I think that the distinction between liability
for
dock dues and liability for detention is in principle
unmaintainable. The
present case may be taken as an illustration.
As regards detention, the
question is whether the owners of the
detained ship suffered a loss of earnings
while she was undergoing
the collision repairs. The answer is that they did
not, because
during the detention the ship, though not disabled from trading
by
the collision damage, was necessarily disabled from trading by the
weather
damage. As regards the dock dues, the question is whether
any part of
the payment of the dues for the period while the
collision repairs were
executed was a loss suffered as part of the
collision damages. The answer
is that it was not, because it was a
payment incurred in order to carry out
the immediately necessary
weather damage repairs. The collision repairs
were therefore
executed in the dock when its use was franked by that
necessary
payment.
Lord
Morton of Henryton
MY LORDS,
The "
Heimgar" was detained in New York for repairs for nearly
50
days. At an early stage in the speech of counsel for the
Appellants, I asked
whether it was common ground between the
parties that, if the collision
between the " Heimgar"
and the " Carslogie " had never happened, the
"
Heimgar" would have been detained in New York for the same
period
of 50 days. The answer was in the affirmative. In the "
Argentino " 13
P.D. p. 191 at page 201 Bowen, L.J. observed:
"A ship is a thing by the
" use of which money may be
ordinarily earned, and the only question
" in case of a
collision seems to me to be, what is the use which the ship-
"
owner would, but for the accident, have had of his ship, and what
(exclud-
" ing the element of uncertain and speculative and
special profits) the ship-
" owner, but for the accident,
would have earned by the use of her? "
Willmer, J. asked
himself that question in the present case and gave this
answer: "
The owners of the ' Heimgar' would have had no use of their
"
ship, and would have earned nothing by her use, for the simple
reason
" that at the time when the collision repairs were
executed the ship was com-
" pletely immobilized as the
result of damage received in the heavy weather
" encountered
during the Atlantic voyage ".
My Lords,
I agree with this answer, and if it is the correct answer I can
see
no ground upon which the Respondents can recover the damages
which
they claim for the detention of their ship. If the "
Heimgar " had not
encountered heavy weather on her voyage
across the Atlantic, I entertain
no doubt that the Respondents
could have recovered damages for her deten-
tion in New York for
the period of 10 days which would have been required
to repair the
collision damage. In that event they would have lost the use
of
their profit-earning chattel for a period of 10 days and the
negligence
of the Appellants would have been the cause of that
loss; but in the events
which happened the Respondents have failed
to prove that any loss of the use
of their profit-earning chattel
resulted from the negligence of the Appellants.
On this short
ground I would allow the appeal, but as we are differing from
a
unanimous judgment of the Court of Appeal, and as Mr. Carpmael
sub-
mitted that a decision in favour of the Appellants would
involve overruling
The "Haversham Grange" [1905] P 307 I shall first make some observa-
tions on that case and shall then
explain briefly why I cannot accept the
reasoning of the Court of
Appeal. I shall follow the example of Bucknill,
L.J. in quoting
Willmer, J.'s statement of the facts in The " Haversham
"
Grange." It is as follows: -
" In
The ' Haversham Grange ' ... the Plaintiffs' ship (the ' Maureen ')
"
was involved in two collisions, both necessitating immediate
repairs.
" Both sets of repairs were executed simultaneously,
and the repair of the
" second collision damage did not in
any way increase the period of
" detention which would in any
case have been required for the repair
11
" of
the first collision damage. In respect of the first collision the
"
Plaintiffs' ship and the colliding ship were equally to blame. In
respect
" of the second collision the owners of the colliding
ship (The ' Haver-
"' sham Grange') admitted liability. The
Plaintiffs in due course
" recovered from the owners of the
first colliding ship 50 per cent, of
" their claim, including
50 per cent, of the amount lost by reason of
" the detention
of their vessel during repair. They then sought to
" recover
from the owners of The ' Haversham Grange,' inter alia, the
"
remaining 50 per cent, of their claim in respect of the detention of
their
" vessel. The learned President, Sir Gorell Barnes,
confirming the Report
" of the Registrar, disallowed the
claim, holding that, as the vessel was
" already
incapacitated by something which had previously happened
"
before the second wrong-doing ship ran into her, the repair of the
"
damage done by the second collision did not in any way delay her,
"
and therefore the second wrong-doer was not responsible for any
part
" of the delay, which he had not in fact caused. In the
Court of Appeal
" the claim for detention was abandoned, but
the learned Master of the
" Rolls, although the matter was no
longer before the Court, expressed
" his concurrence with the
decision in the Court below."
Thus the
decision in The " Haversham Grange " was that the owners of
the
" Maureen " could not recover from the owners of The
" Haversham Grange "
any part of the loss resulting from
the detention of the " Maureen " during
repairs, because
no part of that loss resulted from the negligence of that
particular
wrong-doer. That decision seems to me to be wholly in accord-
ance
with the view which I have formed in the present case.
My Lords,
I have noticed references in the judgments under appeal and
in
other cases to "the rule laid down in The 'Haversham Grange'."
I
confess that I can discover no rule which is laid down in that
case. It
seems to me merely an illustration of the elementary
principle, already
stated by my noble and learned friend on the
Woolsack, that a plaintiff
must " show affirmatively that
damages under any particular head have
" resulted from the
wrongful act of the defendant, before he can recover
" such
damages ". I add that, in agreement with the Opinions which
have
just been delivered, I can see no logical reason for the
distinction which
was drawn in The " Haversham Grange "
between the claim for damages
for detention and the claim for dock
dues.
I think
that the reason why I differ from the Court of Appeal can best
be
explained if I quote three sentences from the judgment of Bucknill,
L.J.
whose wide knowledge of these matters leads me to differ from
him with
great hesitation. The learned Lord Justice said: —
"
When the owners, quite properly, arranged to have their ship sent
"
to the United States of America in order that the collision repairs
"
might be done, I think that the owners of the wrong-doing ship
became
" liable to pay, not only for the prospective cost of
the repairs, but
" also for the loss of time thereby
incurred. It is true that if the
" 'Heimgar' had been sunk on
her way to the United States, the owners
" of the wrong-doing
ship would not have been liable to pay for deten-
" tion
during the repairs. But the reason for that, as explained in the
"
'Glenfinlas' (1918 P. p. 363) is that the ship having been lost she
"
ceased to be a potential money-making machine, and therefore her
"
owners did not lose something which did not exist."
With the
first of these three sentences I entirely agree, but I would add
that
in my view no loss of time was " thereby incurred," because
in the
events which happened, the repairs were carried out at a
time when the
ship was incapacitated for other reasons. As to the
third sentence, I would
respectfully point out that in the present
case the ship ceased to be a
potential money-making machine when
she became unseaworthy owing to
heavy weather, having been
seaworthy when she sailed—see the Lloyd's
surveyor's
certificate of seaworthiness dated 4th December, 1941. In
these
circumstances I find it difficult to distinguish between the
present case and
the position if the " Heimgar " had
been sunk on her way to the United
States. In both cases no loss
of time would result from the earlier collision.
I agree
that this appeal should be allowed with costs.
12
Lord
Tucker
MY LORDS,
As I have
arrived at a conclusion different from that of the Court of Appeal
I
will state very shortly why I have found myself compelled to disagree
with
their decision. The gist of Lord Justice Bucknill's judgment
is to be found
at page 54 of the Appendix between letters C and F.
He here states that
the fundamental difference between the present
case and the " Hauk " (30
Lloyds List Law Reports, 32)
is that in the latter case the ship was compelled
to repair her
rudder and was therefore not a profit earning machine until
that
repair had been effected. In that condition the collision repairs
were
also done and therefore it is right to say that she would
have earned nothing
whilst those collision repairs were being
done. Whereas in the present case
the " Heimgar " was
proceeding to New York for the express purpose of having
collision
damage repaired when she suffered the heavy weather damage, and
it
would be contrary to the decision in the " Haversham Grange "
to hold
that she could not in any event have earned a profit
during the period of
detention by reason of the heavy weather
damage.
But, My
Lords, both the " Hauk " and the " Heimgar " were
rendered
unseaworthy by events which happened after the collision
in each case. So
far as the claim for demurrage was concerned in
the " Haversham Grange ",
it was rejected not because
the collision between the " Maureen " and the
"
Haversham Grange " was subsequent to the collision with the "
Caravellas ",
but because it turned out that the "
Maureen " must have been and in point
of fact was detained
the whole time in dock for the repairs which had to
be executed in
consequence of the damage done by the " Caravellas "
which
had rendered her unseaworthy. It was immaterial that the
damage done by
the " Haversham Grange " would also by
itself have made the " Maureen "
unseaworthy or that it
occurred after the first collision.
It seems
to me, therefore, with respect, that the decision of Willmer J.
in
the present case was consistent not only with that part of the
decision
in the " Haversham Grange " which dealt with
the claim for demurrage
but with the other authorities, including
in particular the " Vitruvia " (1925)
S.C.I and the "
Hauk " (30 Lloyds List Law Reports 32). I agree, however,
with
your Lordships in thinking that the other part of the decision of
the
Court of Appeal in the " Haversham Grange ", viz.,
with regard to dock dues
(which is quite immaterial for present
purposes) cannot be reconciled with
their decision as to demurrage
and should be overruled. Lord Justice
Denning approached the case
from the point of view of the Common Law,
but I venture to think
that the error underlying his judgment, if I may respect-
fully
say so, is that he regards the cause of the detention as equivalent
to the
cause of the loss of profit. The distinction is to be found
clearly expressed
in the judgment of Lord Constable in the "
Hauk " in the passage which has
already been quoted. I am
prepared to assume in the present case that the
collision was a
cause of the detention, but none the less the detention for
such
repair did not result in any loss of profit. It does not represent
what
but for the collision the owners would have earned by the use
of their ship.
Mr.
Justice Lloyd-Jacob treated the time of the decision to immobilise
as
the decisive factor, and this also entered into the reasoning of Lord
Justice
Bucknill. I do not, however, think that this is consistent
with the authorities
in which the unseaworthiness of the vessel at
the material time has always
been regarded as decisive.
For these
reasons and for those which have been stated by Your Lordships
I
agree that this appeal should be allowed.
LORD
TUCKER: My noble and learned friend, Lord Asquith of
Bishopstone,
who is unable to be present, has asked me to say that he agrees
with
the Motion proposed from the Woolsack.
(14112r)
Wt. 8025—142 35 12/51 D.L./PA/19
