LORD JUSTICE SINGLETON: This case concerns a small tanker called the "Inverpool" belonging to the Defendant Company, which stranded in the Ribble estuary on the 3rd December, 1950; and the master, in order to float her, discharged about 400 tons of fuel oil. The oil became deposited on the foreshore which belongs to the Plaintiffs, the Southport Corporation, and entered the Marine Lake, a feature of the foreshore. The deposit extended for a distance of about 7 ½ miles, and varied in thickness from 1 inch to 3 inches, and in width from 3 ft. to 20 ft., at one point amounting to 100 ft. It became necessary to close the Marine Lake for a time and also parts of the foreshore, and it has cost the Corporation a substantial sum to make good the damage.
The Corporation claimed damages against the owners and master of the tanker. They alleged that the deposit of oil on their property constituted a nuisance, or was a trespass, and, further, that there was negligence.
Mr Justice Devlin gave judgment in favour of the Defendants, and the Plaintiffs appeal to this Court.
I take the following statement of facts from the judgment of Mr Justice Devlin:
"The 'Inverpool' is a steam tanker of 680 tons gross, 169 feet in length and 31 in beam. The engine is aft. Her master, Mr McMeakin, and her chief engineer, Mr Mackintosh, are both experienced seamen, and she was manned by a crow of 11 hands all told. She left Liverpool at 7.30 on 3rd December, 1950, with a cargo of 736 tons of heavy fuel oil. She has three tanks and her total capacity is 800 tons. She carried about 120 tons only in her No. 1 tank forward, and the other two tanks were full. Her draft forward was 9' 10" and aft 14' 10". She arrived at the Nelson Buoy at 11.40 and waited there for the tide: high water at Preston was at 17.17. She left the Nelson Buoy at 14.30, the weather then being clear, wind N.N.W. force 7 or 8, and a moderately rough sea. At about 14.45 when she was between the Gut Buoy and the Wall End Buoy she shipped two or three very heavy seas over the port quarter and engine room. Up to that time she had been behaving normally in every way, and almost immediately after that, the master says, the steering without any apparent cause became very erratic, and she began sheering four to five points to starboard and to port. The engineer describes her as lurching badly, sliding from side to side. The master said the weather made it impossible to put a man along the deck to find out what was wrong with the steering gear. He asked the engineer to increase the pressure to the steering. The master continued on his course with some anxiety. At 15.05, when the ship was about halfway between Wall End Buoy and Salter's Buoy, the engineer felt two violent blows on the propeller (metal hitting metal it sounded like) which he reported to the master. The ship was then, the master says, in mid-channel, and he did not think she had touched anything. The channel at this part is about 600 feet wide. On the south side there is a revetment wall about 7 or 8 feet in width and of a height varying from 1 to 6 feet above datum. At this time there would be about 14 or 15 feet of water at Salter's Buoy, so that there was 8 to 12 feet of water over the wall. When the 'Inverpool' had passed Salter's Buoy — about half a mile, the master says, though the Plaintiffs contend she had hardly passed it — she took a heavy sheer to starboard which could not be corrected and she ran aground on the revetment wall. It was then 15.15. She lay at right angles across the wall, about 30 feet of her length being over the other side of it while her stern was still afloat in the channel. The master did the obvious and natural thing and ordered the engines full astern so as to back her off into the channel. Immediately the engines went astern, it was found that the propeller was fouling some hard object; there was the same noise as before. There was such vibration that the engineer feared the main steam pipe might fracture with the danger of scalding the engine crow. After a few minutes he reported this to the master, who told him he could stop. The master then regarded the position of his ship as extremely precarious. She was pounding on the Wall and straining heavily. He thought she was in serious danger of breaking her back with probable loss of life as well as of the ship herself. Of course, she was on a rising tide, and there was a chance, great or small, that the water would lift her off. If the tide made to the predicted height (and in fact it was an inch over) there would be 6 or 7 feet more water under the vessel within the next two hours. But the tide and the wind were pushing her on to the wall, and that would probably mean that she could not get off except by getting right over. The water would therefore have to rise enough to get her stern over, and her stern was drawing 14' 10". If the height of the wall where she was across it was, say, 5 feet, high tide would give her a theoretical clearance of about 1 foot. If the height was 6 or 7 feet, as the master rightly or wrongly thought, the tide would not get her off. If it did not, her position bumping on a falling tide with her head and stern unsupported would be disastrous. I do not think that the master made any precise calculations. His instinct was to get off as quickly as he could and the obvious way to do that was to lighten her. He had no relish for waiting about doing nothing to see if the tide would rescue him. At 15.25 therefore he began discharging No. 1 tank. There was some suggestion that he lightened her forward first with the idea of putting her further down by the stern and thus inducing her to slide back into the channel. In fact he had to discharge that tank first because it was slack, and I do not think he was concerned about which way she came off so long as he got her off. The discharge of No. 1 was completed at 16.05 without getting the ship off the wall. At 16.15 he began on No. 3 tank, and when that was completed he had discharged rather over 400 tons and raised the ship about 3 ½ foot. At 17.30 she bounced along the wall (to use the master's description) and went off it, coming to rest on a bank of sand. A survey report made later showed quite considerable hull damage which the ship must have sustained either on the wall or on the hard sand. The report showed also that the stern frame was very badly bent and fractured in two places, that one blade of the propeller was completely broken off and the other three blades broken at the tip."
I add this in order to make clear what the weather conditions were. The master of the "Inverpool" said that when he left the Nelson Buoy he was quite happy about going in. There were two other vessels near her, both of which made the journey up the channel to Preston. One was the "Esso Suwannee", a motor tanker belonging to the Defendant Company. Her master, who gave evidence for the Defendants, said:
"They (the conditions) were not too good. The wind was blowing from the Nor West and there was a fairly big sea. . . I thought the passage was quite negotiable. There was n bit of wind and you had to keep her up to the wind when going pact the buoys . . ."
He agreed (at page 123) "not an unusually bad weather afternoon but more than normal." The other vessel was the "Clydebrae", whose master was called on behalf of the Defendants. He said that when he left the Nelson Buoy soon after the "Inverpool" left, it was blowing a moderate gale and it was a pretty rough sea. In cross-examination he said it was the kind of weather you would frequently experience whether entering Preston or elsewhere.
The Plaintiffs alleged that the master of the "Inverpool" was guilty of negligent navigation in several respects, including (a) in entering the channel when the steering was erratic and the helm could not be got over and was slow to move; (aa) in that the tanker was caused to strike the revetment wall; (c) in that he caused about 400 tons of oil to be discharged overboard. The learned Judge rejected this part of the Plaintiffs' case. He came to the conclusion that it was a defect in the steering gear which caused the vessel to get out of control and which led to her coming upon the wall. He added:
"The remaining point is much more difficult, because it has not proved possible to arrive at any clear conclusion as to what causcd the defect in steering. It remains, the master said, a puzzle and a mystery to him. The Plaintiffs say therefore that the Defendants have failed to prove that they were not responsible for the loss. I approach the problem by considering first what relevant damage was found on the ship at her survey. The propeller blades were broken and so was the stern frame. If the stern frame was fractured or even cracked, it would be quite enough to account for the ship's behaviour. Is there sufficient evidence to support the inference that the stern frame was fractured before the vessel stranded? I think on the whole that there is. The damage could of course have been done as she was crossing the Wall or afterwards on the sand. But if I accept, as I do, the engineer's evidence of the propeller fouling on two occasions when the stern was still afloat, first between Wall End Buoy and Salter's Buoy, and secondly just after the stranding, it points to the damage being done earlier. On both occasions it sounded as if the propeller was striking metal. That suggests that in two different places in the channel it was the same sort of metal object that was being struck, and therefore that it was a metal object that was travelling with the ship. The Defendants' theory that the propeller was fouling a part of the stern frame that was loose or out of alignment fits in with this, and the theory is certainly not weakened by the fact that the stern frame was afterwards found to be fractured. I accept this theory and find as a fact that the stern frame was fractured before 15.05 when the propeller first fouled. I find that the fractured stern frame was the cause of the vessel getting out of control. Is there evidence to show how the stern frame was fractured? The Defendants' theory is that it was done by the two or three very heavy seas that she shipped at about 14. 45. Assuming the stern frame to be sound, I cannot see how heavy seas could by themselves fracture it, and I am advised by the Elder Brother that they could not. They could, of course, if they drove the stern frame up against some hard object. The Elder Brother points out that between the Gut Buoy and the Wall End Buoy just about the bar, there are places where the ship would not have much water under her stern, and suggests as a possibility that the stern frame might have been broken against the bed of the channel. This hypothesis was not advanced at the trial and I feel now that it is too speculative for me to adopt in the absence of any supporting evidence from the master or engineer. The Plaintiffs' theory is that the fracture was caused by the vessel striking the revetment wall owing to negligent steering at some point before that at which she grounded. I do not accept this. In the first place I am advised that it is unlikely that she could have struck the wall in such a way as to damage her stern; the Plaintiffs' theory was put to the Defendants' witness, Mr Evans, and the Elder Brother considers that Mr Evans's opinion on this point is correct. In the second place, I do not think it could have happened without the knowledge of the engineer, whose evidence I accept. Thirdly, it certainly could not have happened without the master's knowledge; and while I do not want to decide the matter simply by accepting his evidence, the circumstances do not point to his tolling a lie and I do not feel that he was. The evidence of the master of the 'Clyde Brae', a following ship, for what it is worth, bears out his story. On the evidence I am unable to say how the stern frame fractured. I may add that I do not accept the theory that the vessel's loss of control was due to sea damage done to some part of the steering gear such as the rods and chains along the dock. As in the case of the stern frame, I am advised that it is unlikely that the sea alone could do any serious damage. If it had, I should have expected it to be found in the survey; if there were any signs of it there, my attention was not drawn to them."
I am not sure upon the evidence that it is right to say that the stern frame was fractured before the propeller first fouled, though it may have been so. Equally it may have been that the stern post was loose and that that fracture or fractures occurred later.
The master said that there was nothing wrong with the steering until the vessel snipped two or three very heavy seas between the Gut Buoy and the Wall End Buoy, and that thereafter the steering became very erratic. He said that the vessel did not hit the wall before grounding, but soon, after passing Salter's Buoy she took a heavy sheer to starboard and so came upon the wall. In cross-examination he was asked (page 79):
"Do you know why your steering gear became difficult to use?",
and he answered:
"I am puzzled."
And at page 83:
"But you do not know what caused your vessel to be slow in steering, do you?"
"I do not."
"It remains a mystery to you?"
"It does".
Later, at page 88:
"(Q) Can you suggest anything other than the revetment which could have caused the two heavy thuds reported by the Chief Engineer?
(A) Possibly the stern-post was loose and possibly swinging and the propeller struck it.
(Q) And I suppose that is the kind of thing which would be known to the Chief Engineer, would it not?
(A) About the aternpost?
(Q) Yes.
(A) I do not know."
And at page 91:
"(Q) Now you say that after pumping out the oil you got no success having had to stop working the propeller astern because of the engineer's report. What was that due to striking, do you think?
(A) Striking the loose stern frame.
(Q) It all depends on this loose stern frame, does it?
(A) Exactly.
(Q) When did you first think of that one?
(A) Which one?
(Q) Striking the loose stern frame?
(A) I am saying that now. I did not know that at the time.
(Q) Do you know it now?
(A) I know it now, yes.
(Q) How do you know it?
(A) Because I saw the frame afterwards.
(Q) But the frame could have been broken in a number of ways, could it not?
(A) It could, yes.
(Q) By being on the wall, for example?
(A) I think it had gone before that."
At page 92:
"(Q) When did you first form the opinion that it was the propeller striking the stern frame?
(A) After we had gone down to look what the ship was like.
(Q) And have you always said that?
(A) Yes, the marks of the propeller were on the stern frame: the marks of the propeller going round were on the stern frame.
(Q) Did you make this report of yours after you got off (referring to document p.42)?
(A) Yes.
(Q) Did you make any statement to that effect in that report?
(A) I think you will find it is marked on it. I am not quite sure at the moment. The marks were there definitely. The bottom of the stern frame was scored; the marks of the propeller were on it.
(Q) It does not appear in your report, does it, Captain?
(A) It is on one of my reports. Everybody saw it."
In further cross-examination he said he only made one report. The report, which is at pages 42 and 43 of the documents, sets out the damage found, but does not mention the marks on the stern frame.
The marks are referred to in a report of Mr Poole dated 10th December, 1950 (page 45.) Mr Poole was not called as a witness by the Defendants. The Defendants did not disclose any survey report on the vessel. (See the discussion on this at page 95 on the Third Day, and at page 115 on the Fourth Day. It appears that Survey Report of 24th December, 1951, was put in at some time. It is pages 66 to 74 of the documents).
Now, the Defendants by their Defence had denied negligence, and they had further denied the creation of trespass or nuisance. They had not pleaded that the difficulty in steering arose through a loose stern frame or a damaged stern frame. Their case on the hearing was that the damage was done by two or three heavy seas shipped about 14.45. The finding of Mr Justice Devlin upon this is:
"Assuming the stern frame to be sound, I cannot see how heavy seas could by themselves fracture it, and I am advised by the Elder Brother that they could not."
The natural inference is that there was something wrong with the stern frame before the commencement of the voyage. What, then, is the position in law? The submission made to the trial Judge by Mr Carpmael was that in the circumstances the Defendants must explain the accident, or must show that the defect in steering was not their fault (see Judgment, page 6), and he relied upon the "Merchant Prince", reported in 1892 Probate at page 179. Mr Nelson, on behalf of the Defendants, submitted that no question of fitness of the ship entered into the case, as the only plea of negligence was directed against the master.
I do not think that the decision in this case ought to turn on any question of pleading. If it had to do so, I should not regard the Defendants' pleading as complete in view of the facts known to them. Moreover, I would not think that there had been full discovery of documents. And the Plaintiffs could know little of the facts which were within the knowledge of the Defendants. It was really only on cross-examination of the master that the Plaintiffs discovered the facts as they now appear.
I look upon the case in this way. The stranding of the vessel on the revetment wall was an unusual happening, something not likely to happen even in bad weather in this channel if proper care was taken. Other vessels made the journey successfully. Thus an explanation is called for from the Defendants. I think this was the opinion formed by the Judge. He appears to have considered it was a case in which the doctrine of res ipsa loquitur applied, and he said:
"If the Defendant offers a plausible explanation consistent with his diligence, the Plaintiff is back where he was before and must show the greater probability of negligence."
Unfortunately he did not apply that principle to the facts of the case, for he ended his judgment by saying that the only negligence alleged was against the master in respect of negligent navigation. Thus he may be said to have determined the case on a question of pleading. If the Defendants had pleaded that the trouble arose through looseness of, or a fracture of, the stern frame there might have been a reply, and without doubt further discovery would have been sought. On the Judge's findings the damage was caused by the fractured stern frame, which could not have been caused by heavy seas if the stern frame had been sound. This was a vessel which was said to have been new in 1925. It would appear that her stern post became loose, or the stern frame fractured, before she entered the channel. There is no evidence to show that that sort of thing happens in a well found ship. It seems to me that we ought to assume that it is unlikely that such a thing will happen if proper care is taken.
We know nothing as to the history of the "Inverpool." No earlier survey reports have been produced. We do not know when repairs had last been done to her. (There is a somewhat nebulous remark as to her having been overhauled in the previous March or April.) Nor is there any information as to what the condition as to possible looseness of the sternpost was found to be afterwards. Mr Carpmael said that he left it to the Defendants to show that they had taken proper care, relying upon his submission.
Is the explanation a plausible one consistent with diligence, to take the question posed by Mr Justice Devlin?
It is unnecessary, in my view, for the Plaintiffs' case to be put in the way Lord Justice Fry put the case of the "Merchant Prince". I prefer the test laid down by Chief Justice Erle in Scott v. London and St. Katherine's Docks Company:
"There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."
That appears to me to be the position on the facts of this case.
If the Defendants have produced a reasonable explanation, equally consistent with negligence or no negligence, the burden of proving that the Defendants were negligent and that their negligence caused the damage rests upon the Plaintiffs. Have the Defendants produced such an explanation? Mr Nelson, on their behalf, submitted that it cannot be said that there is evidence of negligence whenever a vessel goes ashore in a storm. From that proposition, stated in general terms, I do not dissent. But the weather was not unusual: there is nothing to indicate that there were unusual, or unexpected, difficulties in the channel, or under the conditions encountered on that day. 0-hher vessels made the journey up the channel successfully. It appears that the trouble arose through some fault in the sternpost, or in the stern frame, of the vessel. There was no evidence to show that that is something which may happen in a well found ship if proper care has been exercised in regard to her; indeed, no evidence was directed to this side of the case.
The Defendants were content to rely on the fact that the master noticed nothing wrong with the steering until after the heavy seas were shipped. There is no evidence of any inspection, routine or other, beforehand.
In the case of the "Llanover", reported in 79 Lloyd's List Law Reports at page 159, Lord Justice Bucknill at page 163 said:
"On the undisputed evidence as to the circumstances leading up to the collision, it seems to me that a prima facie case of negligence is made out against the 'Llanover' which she has failed to rebut. Her rebuttal rests on her evidence that her steering gear jammed, which made it impossible for her to keep out of the way. It is not sufficient for a ship to say: 'My steering gear has jammed and therefore I can do nothing.' I think the burden is cast on her of showing that the jamming could not have been avoided by the exercise of reasonable care and skill on her part, or at least that she used all reasonable care and skill to prevent the jamming of the gear, and that it might reasonably have jammed for a cause which they could not have prevented by the exercise of reasonable care and skill."
I find this statement of Lord Justice Bucknill most helpful. In the circumstances of the present case I cannot see that the Defendants gave an adequate explanation, of the happening in the absence of any evidence to show what the condition of the stern post, or of the stern frame, was at any time prior to the day of the stranding and without any evidence to show how the damage might have occurred, or as to what the condition of the parts was afterwards. They directed evidence to show that the steering might be affected by heavy seas, but they gave no evidence as to the likelihood of damage to the stern post or stern frame. It is not without interest to notice that no evidence was given in chief by the Defendants' witnesses as to this damage being the cause of trouble occurring in the steering; it was in the cross-examination of the master that it appeared. It cannot have come as a surprise to the Defendants.
It appears to me that on the facts the Plaintiffs did give evidence whioh. pointed to negligence on the part of the Defendants, and that the oase was not answered.
I have oomc to the conclusion that the Plaintiffs' . claim should succeed, and that the appeal should be allowed.
I do not propose to consider the claim made on the basis of nuisance or trespass. Assuming that either is right, the defence of necessity would, in my view, destroy it. But, again, the Defendants could not avail themselves of that defenoe if the whole trouble was due to their negligence. And it is on the issue of negligence that the case falls to be decided.
I would add that I cannot accept Mr Nelson's submission that no duty is owed by those on, or responsible for, a ship to persons, whether owners or occupiers, on shore. There is a duty to act reasonably — in other words, a duty not unnecessarily to do an act which any reasonable person in charge of a ship would know to be likely to cause injury to those on shore. In my opinion, judgment should be entered for the Plaintiffs with damages to be assessed.
No distinction was drawn between the position as between the Defendants, but as the Judge acquitted the master of any negligence in the navigation of the ship it may be better that judgment should be entered against the owners, though if any question arises upon that we will hear the learned Counsel.
LORD JUSTICE DENNING: This is one of those cases, rare nowadays, where much depends on ascertaining the proper cause of action, particularly in regard to the burden of proof. The Southport Corporation alleges that the deposit of oil on their foreshore was either a trespass to land, or a nuisance, or that it was due to negligence. The Judge seems to have thought that it did not matter much what was the proper cause of action. It all came back in the end to the universal tort of negligence. The action was, he said, "to be treated in the same way as any running down or collision case in which the Plaintiff alleges negligence." I do not share this view, and will give my reasons:
(1) Trespass to land. In order to support an action for trespass to land, the act done by the Defendant must be a physical act done by him directly on to the plaintiff's land. That was decided in the year 1498 in the Prior of Southwards case, reported in Y.B. Henry 7, page 26, fol. 4, which is conveniently set out in Mr Fifoot's book on the History and Sources of the Common Law at page 87. The prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it. It was held that if the glover had dug the lime pit in the prior's soil, the action ought to be in trespass: but if it was made in the glover's soil it should be in case. The same distinction was taken in 1726 in Reynolds v. Clarke (1726), reported in 1 Strange Reports at page 634, where the defendant put a rainspout on his house from which water poured on to the walls of the plaintiff's house and rotted them. The plaintiff brought an action for trespass, but failed because he should have brought an action upon the case. The reason was because the prejudice to the plaintiff was not immediate, but consequential. Quite recently, in 1947, in Read v. Lyons, reported in 1947 Appeal Cases at page 166, Lord Simon affirmed the same distinction when he observed that "the circumstances in Fletcher v. Rylands did not constitute a case of trespass because the damage was consequential, not direct." Applying this distinction, I am clearly of opinion that the Southport Corporation cannot here sue in trespass. This discharge of oil was not done directly on to their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct. Trespass, therefore, does not lie.
(2) Private Nuisance. In order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment of the plaintiff's land. "The ground of responsibility", said Lord Wright in Sedleigh-Dunfield v. O'Callaghan, reported in 1940 Appeal Cases at page 903; "is the possession and control of the land from which the nuisance proceeds." Applying this principle, it is clear that the discharge of oil was not a private nuisance, because it did not involve the use by the defendants of any land, but only of a ship at sea.
(3) Public Nuisance. The term "public nuisance" covers a multitude of sins, great and small. An instructive collection of precedents will be found in the third volume of Joseph Chitty's Criminal Law published in 1926. Suffice it to say that the discharge of a noxious substance in such a way as to be likely to affect the comfort and safety of Her Majesty's subjects generally is a public nuisance. That was decided in Regina v. Mutters, (1864), reported in L. & C. reports at page 491) where the owner of a quarry in Torquay, whilst blasting out the rock, put an excessive amount of gunpowder into a hole, and the ensuing explosion was so great as to scatter rocks and stones into the houses and gardens of people in the neighbourhood and on to the road.
He only did it on one isolated occasion, but he was convicted at the Devon Sessions of a public nuisance, and a strong Court consisting of Chief Baron Pollock, Mr Justice Willes, Baron Channell, Mr Justice ByleS and Mr Justice Shee upheld the conviction. This recalls the celebrated case of Scott v. Shepherd (1773), reported in 2 Wm.B. reports at page 892, where the defendant threw a lighted squib into a crowded market house, and it was thrown from one stallholder to another until it put out the plaintiff's eye. The defendant there was, I think, guilty of a public nuisance; and the plaintiff could have sued him in case. Mr Justice Blackstone thought; that case, and not trespass, would lie against Shepherd, and I agree with him. Those cases concerned, it is true, the discharge of explosives which affect the safety of Her Majesty's subjects, whereas the discharge of oil only affects their comfort; but that is only a distinction in the kind of the nuisance, not in the principle of it.
Applying the old cases to modern instances, it is, in my opinion, a public nuisance to discharge oil into the sea in such circumstances that it is likely to be carried on to the shores and beaches of our land to the prejudice and discomfort of Her Majesty's subjects. It is an offence punishable by the common law. Furthermore, if any person should suffer greater damage or inconvenience from the oil than the generality of the public, he can have an action to recover damages on that account, provided, of course, that he can discover the offender who discharged the oil. This action would have been described in the old days as an action on the case, (see (1535) Y.B. Hy. 8, page 27 at fol. 10: Fifoot, page 98) but it is now simply an action for a nuisance. I realise that by a Statute passed in 1922 the discharge of oil in navigable waters has been made an offence punishable summarily; but that does not mean that it is not also a public nuisance by the common law.
Applying these principles, it seems to me plain that the discharge of 400 tons of oil into the estuary of the River Nibble was a public nuisance. It would, obviously, be thrown up on some part of the coast. Indeed, the master accepted the likelihood of the oil reaching the Southport foreshore. The Defendants can, therefore, properly be called upon to account for it.
(4) Burden of Proof. One of the principal differences between an action for a public nuisance and an action for negligence is the burden of proof. In an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself. If ho fails to do so, he is held liable, whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff. In negligence the plaintiff may gain much help from provisional presumptions like the doctrine of res ipsa loquitur, but, nevertheless, at the end of the case the Judge must ask himself whether the legal burden is discharged. If the matter is left evenly in the balance, the plaintiff fails. But in public nuisance, as in trespass, the legal burden shifts to the defendant, and it is not sufficient for him to leave the matter in doubt. He must plead and prove a sufficient justification or excuse.
(5) Justification or Excuse. The defendants seek to justify themselves by saying that it was necessary for them to discharge the oil because their ship was in danger. She had been driven by rough seas on to the revetment wall, and it was necessary to discharge the oil in order to get her off. If she had not done so, lives might have been lost. This is, no doubt, true at that stage in the story, but the question is, how came she to get upon the wall? If it was her own fault, then her justification fails, because no one can avail himself of a necessity produced by his own default. Where does the legal burden rest in this respect? Must the Southport Corporation prove that the ship was at fault in getting on to the wall, or must the ship prove that she herself was not at fault? In my opinion the burden is on the ship. She does not justify herself in law by necessity alone, but only by unavoidable necessity, and the burden is on her to show it was unavoidable. Public nuisance is, in this respect, like unto a trespass, as to which it was said by the Court of King's Bench as long ago as 1616 in Weaver v. Ward, which is reported in Hobart's Reports at page 134, that no man shall be excused "except it may be judged utterly without his fault." The Court added that, as a matter of pleading, it is for the defendant to "set forth the case with the circumstances so that it shall appear to the Court that it was inevitable and that the defendant committed no negligence to give occasion to the hurt." To the same effect is the case of Dickens v. Watson (1682), reported in Sir T. Jones's Reports at page 205, where the defendant, who was a tax collector on his rounds, discharged a gun and put out the plaintiff's eye. The Court held "that the defendant shall not be excused without unavoidable necessity, which is not shown here." To take a modern instance, if a cricketer hits a ball out of the ground and it falls on to the head of someone walking along the road — or on to someone's greenhouse — he is liable in trespass. He could not hope to show that it was an unavoidable necessity for him to hit the ball so hard.
Those were, it is true, cases in trespass; but the same principle applies to cases of public nuisance. That is shown by Tarry v. Ashton reported in 1876 1 Queen's Bench Division at page 314, where a lamp which projected over the Strand fell on to a passer-by (which Lord Wright has said was a private action for a public nuisance.) (See Sedleigh-Denficld v. O'Callaghan reported in 1940 Appeal Cases at page 906.) Also by Wringe v. Cohen, reported in 1940 1 King's Bench Division at page 229, where the gable of a house next the highway was blown down in a storm (which was treated by this Court as a public nuisance.) In both cases the Defendant was held liable because his premises were in a defective state. He did not know of the defect, and he was not negligent in not knowing, but, nevertheless, he was liable because he did not prove any sufficient justification or excuse. He did not prove inevitable accident. Likewise in Sadler v. South Stafford Tramways, reported in 23 Queen's Bench Division at page 17, a tram going along the highway ran off the track because the points were defective. The jury acquitted the tramway company of negligence, but they were held liable because they could not prove inevitable accident.
Applying these cases, I am of opinion that the Defendants can only escape liability if they can prove that the discharge of oil was an unavoidable necessity; that is, a necessity which arose utterly without their fault. In other words, that they committed no negligence to give occasion to it.
(6) The failure of the steering. The question is, therefore, whether the ship has proved that it was not her fault that she got on the wall. She has given the circumstances in which she got there. Her steering gear had failed half an hour previously. She was lurching about in the channel out of control and finished up on the wall; but why did her steering gear fail? She has never attempted to explain it. The Judge thinks it failed because the stern frame fractured. No one can doubt that the stern frame should not have fractured. Why did it fracture? The seas themselves were not rough enough to do it. There must have been some other cause, but what was it? Several suggestions have been made. It may be that she hit the bed of the channel. It may be that there was a latent defect in the metal. It may be that there was a patent defect which could have been discovered by reasonable examination and inspection. But whatever the cause, the Defendants have not shown that it happened without their fault. They have, therefore, not discharged the burden upon them. They are liable for the nuisance which they caused.
That is sufficient for the decision of this case, but I proceed to consider the case in negligence.
(7) The rule in the "Merchant Prince." Although in negligence the legal burden in most cases remains throughout on the Plaintiff, nevertheless there are some exceptional cases where the legal burden is shifted on to the Defendant. It is shifted in those cases which fall within the rule in the "Merchant Prince", which is reported in 1892 Probate Division at page l77. In that case a steamship under way in broad daylight ran into a ship at anchor in the Mersey. No one can doubt that if it was done deliberately it was a trespass. Alternatively, if the steamship was out of control by her own fault in a crowded river, with the steering gear jammed, she was a public nuisance. In the further alternative, if she was in control she must have been negligent. Those being the only possible alternatives, it appeared on her own showing that her steering gear was jammed and she was out of control. She was, therefore, called upon to answer for her dangerous condition as if it had been a public nuisance. That is how Sir Walter Phillimore put it in argument when he said:
"The machine was dangerous and the defendants are liable for using it in a crowded river like the Mersey."
The Court of Appeal accepted his argument and put the legal burden fairly and squarely upon the defendants. The cause of action was laid only in negligence, but the facts shifted the legal burden on to the Defendants just as if it were a case of trespass or public nuisance. Lord Esher, the Master of the Bolls, said (at page 187):
"He can only get rid of that proof against him by showing inevitable accident; that is, by showing that the cause of the collision was a cause not produced by him, but a cause the result of which he could not avoid."
That decision followed an earlier decision to the like effect by Lord Herschell, the Lord Chancellor, in the "Annot Lyle (1886), reported in 11 Probate Division at page 114, and it has since been repeatedly applied both in the Court of Admiralty and in this Court, notably in the "Dageid", which is reported in 80 Lloyd's List Reports at page 517. I do not think we should admit of any doubt upon a rule which is at once so just and so convenient. It applies not only to a ship at sea, but also to a lorry or a horse and cart which gets out of control and runs off the road into a house. If there is no other traffic about, the legal burden is on the Defendant to prove inevitable accident. (See Mitchil v. Alestree (1676), best reported in 3 Keble's Reports at page 650; Illidge v. Goodwin (1831), reported in 3 C. & P. Reports at page 190, at page 192 per Chief Justice Tindal, and Hendry v. McDougall, reported in 1923 Scottish cases at page 378, at pages 385 and 386.) The fact of running into the house calls not merely for an explanation consistent with diligence, as Mr Justice McCardle thought in Gaylor and Pope v. Davies, reported in 1924 2 King's Bench Division at page 75, but for proof of inevitable accident. I realise that in Fletcher v. Rylands, reported in Law Reports 1 Exchequer at page 286, and River Wear Commissioners v. Adamson, reported in 2 Appeal cases at page 267, Lord Blackburn Beams to put the burden rather differently; but that was before the "Merchant Prince" had settled the law upon the point.
Applying the "Merchant Prince", we find here that the ship ran on to the revetment wall. If the steering gear was in order, that was plain negligence. The ship seeks to escape from this charge of negligence by saying that her steering gear had failed and she was out of control. But that is no answer unless she proves — and the legal burden is on her to prove — that it was no fault of hers that the steering gear had failed. She has not discharged that burden, or even attempted to discharge it. She is, therefore, liable.
(8) Res ipsa loquitur. If, contrary to my view, the legal burden was on the Southport Corporation throughout to prove that the ship was in fault, I must say that the facts, to my mind, speak for themselves. The steering gear of the ship went wrong. It ought not to have gone wrong if those having the management of the vessel used proper care. The Defendants have not given any explanation of how it could go wrong, consistent with due diligence. Surely, if they had had proper examinations and surveys of the ship, the stern frame would not have fractured. The inference of negligence should, I think, plainly be drawn. I agree with all that Lord Justice Singleton has said on this part of the case.
(9) The Pleadings. The Defendants say that they came to the Court to meet a charge of negligent navigation on the part of the master; not a charge of negligent inspection and overhaul by the owners. This point so impressed the Judge that he decided in their favour on account of it. I do not agree with it. The Plaintiffs made a prima facie case of negligent navigation by the master by showing that he went on to the wall. The Defendants in their Pleading sought to attribute that to the steering gear being out of control because the propeller had twice struck "some object". That would lead anyone to think that it struck a submerged object such as a rook or a piece of wreckage. No one would think that they were referring to a fractured stern frame. If they had done so, the Plaintiffs would, no doubt, have retorted with the charge that they should not send a ship out in such a condition that the frame might fracture. The Defendants cannot complain of omissions in the Plaintiffs' Pleading when it was their own reticence which led to it.
I may add that, even on this point of Pleading, the "Merchant Prince" is in the Plaintiffs' favour, because I have referred to the Record of the case and find that the Plaintiffs there only pleaded negligent navigation. They pleaded (paragraph 3) that the "Merchant Prince" struck the "Catalonia" a heavy blow; (paragraph 4) that a good look-out was not kept; (paragraph 5) that the "Merchant Prince" neglected to keep clear of the "Catalonia"; (paragraph 6) that she was being navigated at too high a rate of speed; and (paragraph 7) she did not stop or reverse her engines. Nothing was alleged about a defect of the machinery or bad management of the machinery. Yet the Plaintiffs succeeded because negligence in that respect was not disproved by the Defendants.
(10) In conclusion I would say that the Southport Corporation know nothing of what happened on board the ship except that it discharged oil which polluted their foreshore. It is only just and reasonable that the shipowners should pay the cost of cleansing the foreshore unless they can show that they were no way in fault; and that they have not done. I am of opinion that whether the case is put in nuisance or negligence, the Plaintiffs should succeed. I would allow the appeal and enter judgment against the Defendant Company.
LORD JUSTICE MORRIS: The voyage of the "Inverpool" on the 3rd December, 1950, was at first uneventful. Leaving Liverpool at 7.30 in the morning, bound for Preston, she arrived at the Nelson Buoy at 11.40. It was necessary to wait for the rising tide. The weather was "a bit too rough for dropping the anchor", and so Captain McMeakin turned the vessel round, head to sea, put her on "slow", and kept marking time for nearly three hours off the buoy. The steering of the vessel had been, and continued to be, normal. It was, apparently, too rough for the pilot boat to come out. At 14.30 P.M. the vessel started to make her way towards the channel of the Ribble. The time of starting required to be determined by relation to the time of the high water at Preston. No suggestion is made that the timing was in any way wrong. The "Inverpool" proceeded at half-speed. The Gut Gas Buoy, which is about two miles from the Nelson Buoy, was passed, and then at about 14.45; while proceeding towards the Wall End Buoy, two or three very heavy seas were shipped. An immediate result, and one which surprised Captain McMeakin, was that the steering suddenly became very erratic; the vessel began to sheer both to starboard and to port; the sheering was to an extent of about 4 points. At about 15.05 p.m., when the vessel was about half-way between the Wall End Buoy and Salter's Buoy, came the incident, reported by the engineer to the captain, when there were two violent blows on the propeller which sounded like metal hitting metal. Ten minutes later the vessel ran aground on the revetment wall. The situation then was fraught with great danger. The lives of those on board were in peril; the ship was in jeopardy. In the predicament thon existing the decision of the Captain to pump out oil was manifestly justified. In the result lives were saved. The vessel went over the wall and came to rest on a bank of sand. The fate of the vessel was in the balance for some days thereafter during which it seemed doubtful whether she would again ride her element, but eventually she was reflected and was towed to Preston on the 8th December.
Gratitude for deliverance apart from other instinots might have inspired a desire to reimburse the Corporation of Southport the amount of the expense to which they were put in clearing the oil which came unwanted and unwelcome to their shore and to their lake. The misfortunes which befell the owners of the ship arose in the course of their commercial pursuits; the Corporation of Southport had no concern in the carriage of the oil - save than that it should be carried securely. But considerations other than the legal ones are not for the Court and may not be fully known. After correspondence had taken place in the course of which the owners of the "Inverpool" stated that she stranded during very heavy weather in circumstances outside the control of the Master and crew and repudiated the suggestion that there had been negligence in the navigation, management and control of the vessel legal proceedings were begun against the owners of the ship and her Captain.
The shores and other property of the Southport Corporation are in proximity both to the sea and to the channel of the Ribble. Those who own seashores or land near to the sea are inevitably subject to certain hazards. If a ship founders in a gale or is blown ashore and battered by the elements the shore may be strewn with debris or with cargo; the consequences may be disagreeable. But this is a risk which is recognised both in fact and, I think, in law. If the "Inverpool" had been caught in a hurricane and had been sunk, and if her whole cargo of oil had been carried to and precipitated on the Southport shore and if no fault were alleged against the ship, I cannot think that in law the Corporation would have a claim; they would not be able to assert negligence, and it would not avail to complain of nuisance or of trespass. They would be enduring one of the risks to which the owners of property so situate are subject. The law was stated by Mr Justice Blackburn in Fletcher v. Rylands. which is reported in 1866 Law Reports 1 Exchequer at page 265, and at page 286 he said:
"Traffic on the highways whether by land or sea cannot be conducted without exposing those whose persons or property are near to it to some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger; and persons who by the licence of the owner pass near to warehouses where gpods are being raised or lowered, certainly do so subject to the inovitoblo risk of accident. In neither case therefore can thoy recover without proof of want of care or skill occasioning the accident; and it is believed that all the cases in whioh inevitable accident has been held an excuse for what prima facie was a trespass, can be explained on the same principle, viz., that the circumstances were such as to snow that the plaintiff had taken that risk upon himself."
It was doubtless with a recognition of this position that the Corporation sought to establish that there had been negligence in the navigation, management and control of the vessel. They alleged that the master had been negligent. In the Statement of Claim they further pleaded that the Defendants were liable for nuisance and trespass. But in the circumstances of this case I do not think that the claim of the Plaintiffs is advanced by the inclusion of these words; liability can only attach, in my judgment, if there was negligence. If the ship, while sailing in placid seas near Southport, had for no good reason deliberately decided to pump out a quantity of oil on to the sea and had done so in circumstances under which, by the action of the tide or the wind, the oil would be carried on to the Southport shore, I consider that there would have been a good cause of action in trespass or nuisance. There may be trespass if something is placed upon land; but equally I think that there may be trespass if something is thrown upon land or if the force of the wind or of moving water is employed to cause a thing to go on to land. (See the judgment of Mr Justice Parker in Jones v. Llanrwst Urban District Council, reported in 1911 1 Chancery Division at page 393.) In the illustration that I have supposed the affliction of the owners of the land would not be of the kind or quality, to the risk of which, those owning property near to the sea would deem themselves or ought reasonably to be subject. Such a deliberate and unwarranted outpouring could not be regarded as being a natural incident of navigation. It is true that in the present case when the "Inverpool" was stranded on the wall the decision to pump out oil was a calculated one. The Plaintiffs contended that the decision was unreasonable and need never have been taken. After hearing the evidence the learned Judge rejected this contention. In my judgment he rightly rejected it. In the situation in which the ship was placed it was necessary and proper to jettison. But the Plaintiffs advanced further contentions by reference to an earlier phase in the story. On the assumption that having got on to the wall it was necessary to jettison, they urged that the vessel ought never to have got on to the wall, for, they said, she ought never to have catered the channel. The issue so raised required a consideration of much evidence. The learned Judge came to the conclusion that the allegation that it was negligent to enter the channel (having regard to what had happened to the ship at and after 14.45 p.m.) also failed. Every other allegation of negligence likewise failed. I see no reason to differ from the conclusions of fact reached by the learned Judge in regard to all these allegations.
If the Plaintiffs had in effect simply said:
"You deliberately poured out oil near to our shore in such manner that the tide would carry the oil on to our shore, as it did, and you are therefore liable in nuisance or trespass unless you can excuse yourselves",
it is possible that the Defendants could have been required to assume the onus of proof and to show that they became under necessity to jettison oil without any negligence on their part. The Defendants might then have had to decide at what stage to take up matters of proof, and how exhaustively to anticipate all points that might be raised. But the litigation never developed at all in that way or on those lines. The Plaintiffs set out their case and then sought to prove it. They called a series of witnesses. The position was that if at 15.15 p.m., as matters then stood, the pumping out of oil was unjustifiable the Plaintiffs would succeed in their action. They fought that issue and failed in regard to it. But if it was as a result of negligence that the ship became in the predicament in which she found herself at 15.15 p.m., than likewise the Plaintiffs would succeed. Accordingly, the Plaintiffs quite naturally and properly alleged that that was the position. They set out to show that there had been negligence. They carefully specified and stated the negligence that they alleged. I sec no reason to think that the course adopted by the Plaintiffs was other than entirely appropriate and correct, and no criticism has been made, or is made, of their Pleadings. Indeed, I think that it is virtually common ground in the proceedings that if there was negligence, then there would be liability in the Defendants: negligence would be the foundation of a direct claim and would render unavailing any contention that the discharge of oil was an inevitable incident of navigation or was unavoidably necessary. With full appreciation of this the Plaintiffs recited and tabulated the many and various respects in which they alleged that there had been negligence. In so doing they, so to speak, chose and fixed the Agenda for the trial. Their suggestion was that there had been "negligent navigation, management and control of the said oil tanker" by the second-named Defendant.
Careful investigation followed in regard to all the points raised. The learned Judge did not think that there had been negligence. I cannot think that the Plaintiffs can fairly say in these circumstances that the Defendants must fail because they have not shown that they were not negligent in some way not alleged. The case for the Appellants really is that the Defendants did not disprove that the vessel was ill-found when she left Liverpool. But the Plaintiffs did not allege that she was: they did not so allege either before the case began or during the case, save that at the trial they relied upon the authority of the "Merchant Prince", to which I will later refer, and claimed that the burden of proof shifted so as to require the Defendants to explain what had happened and to prove inevitable accident. The Defendants gave evidence that the snip had behaved normally from 7.30 a.m. until she was struck by heavy seas. Captain Davies, who was called for the Plaintiffs, said (see page 19) that he thought that a captain would know when he left the Nelson buoy whether his ship was steering all right. I would have thought that a reasonable inference was that the later events and the damage that was subsequently found in the vessel were caused in some Way as a result of the heavy seas. No one can say exactly when, where and how particular features of damage were sustained. There was the question of the broken stern frame. The learned Judge negatived the suggestion that the fracture was caused by the direct action of the waves. But the vessel had a draught of 14 ft. 10 ins. after, and at places in the channel there was not much water under her stern. Having regard to this fact and to the weather conditions, the suggestion of the Elder Brother that the stern frame may have been broken against the bed of the channel is highly significant. The learned Judge pointed out that the possibility that there was some defect in the stern frame which made it liable to fracture could not be excluded. But the view, or theory, that was put forward by the Plaintiffs was that the fracture was caused by the vessel striking the revetment wall owing to negligent steering at some point before that at which she grounded. The learned Judge did not accept that view. I consider that his conclusion that the propeller fouled after the stern frame was fractured and that the fractured stern frame was the cause of the vessel getting out of control is a reasonable one. But no one can be sure. The fact that the cause of the fracturing of the stern frame cannot be precisely stated does not lead me to the view that there was anything wrong with the stern frame before the commencement of the voyage: I form the view that the vessel became damaged, with the results that followed, because of the sea and weather conditions that besot her, though the times and causes of under-water occurrences may never be known. The theory seems to me to be a very reasonable one that the fracture to the stern frame was just before 15.05 when the propeller first fouled. If the stern frame fractured at about that time, the vessel being positioned as she then was, and being subject to the severe conditions which prevailed, I do not think that there should be any inference or assumption that the occurrence came about through any lack of care either at the time or previously.
The first witness called by the Plaintiffs was the Harbour Master of the Preston Docks. He gave evidence (see Day One, page 3) that he saw the vessel on Monday, the 4th December, when she was high and dry on the sand. He noticed that the stern post of the rudder was fractured and that the rudder was twisted, and that there was damage to the propeller. If the Plaintiffs had wanted to contend that any of these circumstances suggested that the ship was ill found or was in defective condition when she began her voyage, they could have done so and they could have asked for any documents or survey reports that they desired to see. The Defendants could then have addressed themselves to such matters. The case that the Plaintiffs presented was that the Defendants were vicariously liable for the negligent navigation of the Captain. It would have been another and quite different case if the Plaintiffs had said that the Defendants were themselves to blame in that they had sent their Captain to sea in a faulty ship. A further possibility might have been for them to submit that it was for the Defendants to begin and to show that each and every conceivable avenue of criticism was a cul-de-sac. As it was, the Plaintiffs called two witnesses with considerable experience of the navigation of large liners. Captain Davies (see Day One, page 16) thought that as there was something wrong with the steering it was a very hazardous operation to attempt to enter a narrow channel in the weather conditions prevailing. He thought (see page 17) that the two thuds heard at 15.05 must have been caused by the stern or the propeller striking the revetment wall. He had seen the survey reports of the damage, and agreed that if the stern frame came adrift the propeller could easily foul the stern frame. Both he and Captain Hartley, who was also called for the Plaintiffs, gave evidence in support of the various allegations of negligence which were put forward. On a consideration of their evidence and of all the evidence called by the Defendants, the learned Judge rejected all the allegations of negligence. There were many of them; they included an allegation that the master had failed to make and keep himself acquainted by chart or otherwise with the presence and situation of the revetment wall. The Plaintiffs did not assert that it was a defective or ill-found vessel that had sailed from Liverpool. Captain McMeakin had been master of the "Inverpool" for 26 years. Mr Mackintosh had served as an engineer in her ever since she was built in 1925. They were both well qualified to know of her performances and to know the feel of her, and to know whether there was anything wrong with her. They would both have been well competent to answer any questions as to whether there wore any defects in the condition of their vessel.
The case of the "Merchant Prince", which is reported in 1892 Probate Division at page 179, was different from the present case. In broad daylight the "Merchant Prince" ran into a ship at anchor in the River Mersey. An action of damage by collision was brought. By the Defence the collision was admitted, but it was pleaded that the cause was that the steering gear did not act and that it failed to act "in consequence of some latent defect or obstruction which could not have been ascertained or prevented by the exercise of any reasonable care or skill on the part of the Defendants or their servants and the said collision and damage were caused by inevitable accident." In the "Marpesia". reported in Law Reports 4 Privy Council at page 212, inevitable accident was said to be "that which the party charged with the damage could not possibly prevent by the exercise of ordinary care, caution and maritime skill." On the Pleadings in the "Merchant Prince" it was held at the trial that it was for the Defendants to begin and to prove what they had pleaded. It seems clear that whole one ship is riding at anchor and another ship in motion collides with her the ship in motion is prima facie liable and can only escape from liability by showing inevitable accident. (See per Lord Justice Fry in the "Schwan" and the "Albano", reported in 1892 Probate Division at pages 419 and 431.) In the "Indus", reported in 12 Probate Division at page 46, the law was stated as follows:
"It is the duty of a vessel in motion to keep clear of one at anchor if the latter can be seen, and if she does not keep clear, then she must show good cause for not doing so. In what way, then, could the Defendants justify themselves? They could say that everything was done which could be done by careful seamen, but that some overwhelming storm occurred which prevented the ship from being navigated as she ought to have been. They could say that an entirely unforeseen accident which could not have been prevented by proper management occurred to the machinery with the same result. There are yet other things which may be classed under the head of law known as inevitable accident, which is a well-known expression, and though it may not be philosophically correot, answers its purpose; but the Defendants must clearly prove the occurrence of such an inevitable accident."
In the "Merchant Prince" the President held that the Defendants had proved inevitable accident, but this decision was reversed in the Court of Appeal. A now chain had been put in the steering, and new chains were known to be liable to stretch. There had been a stretching of the links of the chain on the night before the collision, and the chain had been tightened up. The Defendants could have foreseen that if next morning the chain stretched while the ship was going down the Mersey the consequences would be awkward. They could easily have provided — by reasonable foresight - against this contingency. But it was for the Defendants either to snow what was the cause of the accident and to show that the result of that cause was inevitable, or to show all the possible causes and to show with regard to each one that the result could not have been avoided.
It seems to be both good sense and good law that if a ship runs into another ship which is at anchor, or if one ship in a convoy runs into another ship, it is not enough for the colliding ship merely to say that its steering became defective. It is necessary to go on and explain how and why the steering became defective and to negative negligence. It might be the case (as in the "Dageid", reported in 80 Lloyd's List Reports at page 517) that careless handling of the steering gear brought about defects.
I do not Question the authority or the current validity of the decision in the "Merchant Prince". But in the circumstances of the present case, which differ materially from those in the "Merchant Prince", the proceedings were at the instance, and by the choice of, the Plaintiffs launched and continued in quite a different way from those in the "Merchant Prince."
Though it is with diffidence that I differ from my Lords, I have reached the conclusion that the decision of Mr Justice Devlin was correct, and I would dismiss the appeal.
MR CARPMAEL: So far as the Master is concerned, as I understand the judgment of the majority of the Court, I cannot succeed against him.
LORD JUSTICE SINGLETON: I added to my judgment these words — they may be sufficient for you —
"No distinction was drawn between the position as between tthe Defendants, but as the Judge aoquitted the Master of any personal negligence in the navigation of the ship it may be better that judgment should be entered against the owners."
MR CARPMAEL: Then I should ask that the appeal should be allowed in respect of my claim against the owners, the Esso Petroleum Company, Ltd.
LORD JUSTICE SINGLETON: Appeal allowed with costs here and below, and judgment entered for the Plaintiffs against the shipowners with damages to be assessed; is that right?
MR CARPMAEL: Yes, my Lord.
LORD JUSTICE SINGLETON: Very well.
MR CARPMAEL: I do not know whether my learned friend wants to say something.
MR CURRIE: My Lords, I would ask that the appeal against the Master be dismissed with coats.
LORD JUSTICE SINGLETON: There are no costs, are there?
You see, the Defence is filed on behalf of both. I am not sure whether it is necessary to enter judgment for the Master or not, but I said we would hear what you had to say on that.
LORD JUSTICE DENNING; He is the Master of the ship, and a servant of the owners; there are no costs, are there?
MR CURRIE: That must be so, I think, my Lord.
LORD JUSTICE SINGLETON: We have not had any argument as to the position arising between the Master and the owners, but upon the judgment of the majority of the Court, if a Master puts to sea with a vessel which, perchance, has not been the subject of a survey for a long time there may be liability upon him as there is upon the owners. All I want to make clear is that there has been no argument upon that, but I do not think that anything we have said ought to prejudice any argument which might arise upon that.
MR CURRIE: I do not think there can be any costs.
LORD JUSTICE DENNING: No additional costs.
MR CURRIE: No, my Lord. So far as the Master is concerned, I would submit he is entitled technically to succeed upon the appeal; that the appeal should be dismissed so far as he is concerned.
LORD JUSTICE SINGLETON: That may be right, but it has not been argued before us.
MR CARPMAEL: I do not see how, upon your Lordships' judgment, there can be any other course but to say that the appeal in respect of the Master is dismissed.
LORD JUSTICE SINGLETON: That judgment be entered for the Master?
MR CARPMAEL: Yes, my Lord.
LORD JUSTICE SINGLETON: Appeal ad to the Master dismissed.
MRCURRIE: If your Lordship pleases. I am instructed to ask your Lordships for leave to appeal.
LORD JUSTICE SINGLETON: To the House of Lords?
MR CURRIE: Yes, my Lord.
(Their Lordships conferred.)
LORD JUSTICE SINGLETON; Yes, Mr Currie, we think you ought to have leave if you wish it. You have nothing to say upon that, Mr Carmael, have you?
MR CARPMAEL: No, my Lord.
MR CURRIE: If your Lordsnip pleases.
LORD JUSTICE SINGLETON: Leave to appeal to the House of Lords,
MR CURRIE: The damages have not yet been assessed, so in those circumstances I need not apply for any stay. I understand my learned friend desires to say something to the Court.
LORD JUSTICE SINGLETON: I thought he had finished, but if he wants to say something further, no doubt he will.
MR CARPMAEL: I noted what your Lordships said with regard to the damages to be assessed.
LORD JUSTICE SINGLETON: We have not been told whether the Order provides how that should be done, or not, but I understood Mr Currie to say yon wanted to say something further.
MR CARPMAEL: No, my Lord, I do not.
MR CURRIE: I erroneously informed the Court; I thought my learned friend was going to mention a matter.
LORD JUSTICE SINGLETON: He ought to know.
MR CURRIE: Yes, my Lord; I am content.
LORD JUSTICE SINGLETON: Lord Justice Denning points out to me that if you are going to appeal to the House of Lords you ought to do so fairly soon and not have this case running on for a very long time.
MR CURRIE: With the greatest possible respect, I entirely agree.
LORD JUSTICE DENNING: Sooften cases take a very long time before they reach the House of Lords, and that is so as regards cases in any Court. The sooner it is dealt with the better.
MR CURRIE: I paid great attention to what my Lord, Lord Justice Singleton, said on the last occasion on which we were here when he remarked that perhaps in about a year's time this case may reach the House of Lords.
LORD JUSTICE SINGLETON: It depends upon the parties, according to whether they got on with it or not. Sometimes it is said the Court is slow, but it is the fault of the parties generally. You ought to get on with it.
MR CURRIE: With the greatest respect, my Lord, I entirely agree.
