Scottish Court of Session Decisions

By charter-party dated 15th August 1883, it was agreed between William Williams of Bangor, master and owner of the schooner “Agnes and Helen,” and Hilton, Anderson, & Co., cement merchants, London, that the said schooner should proceed to the charterers' wharf at Rochester, and there take on board a full cargo of about 110 tons of cement, and then proceed to Dumfries, and there deliver the same, on being paid freight of 9s. 3d. per ton—the act of God, the Queen's enemies, fire, and all and every other dangers, accidents of the seas, rivers, and navigation, of whatever nature or kind soever, during the said voyage always excepted. The ship proceeded to Rochester, took on board a cargo of cement in bags amounting to 110 tons, and sailed for Dumfries on 25th August 1883. She did not arrive there until the 15th October 1883, the voyage having been prolonged, owing to stormy weather, to nearly four times its ordinary length. The cement was to be delivered at Dumfries to John Dobbie, cement merchant, in whose favour the bill of lading was made out, which stated the cement to be shipped in good order and well conditioned.

When the vessel arrived at Dumfries, Dobbie took delivery of the cement, but found that a portion of it was in a damaged condition. He accordingly raised the present action against Williams, in which he concluded for payment of £100 in name of damages. He alleged that the cement was damaged by contact with sea water, and averred overloading, weakness in the coamings of the main hatch, and a want of sufficient dunnage, as causes of the damage, for all of which causes he maintained the defender was responsible.

Williams alleged, that though the cement was apparently in good order when shipped, the shipper stated that it was new, and asked the captain to take off the hatches occasionally to let the steam which new cement is liable to generate escape, that this was done on several occasions and steam escaped, and that “the cargo when shipped was liable to deterioration through its own inherent defects, if through stress of weather the voyage was much delayed, and the damage sustained as after mentioned was to a large extent due to this cause.” He also averred that the weather experienced on the voyage, which occupied eight weeks, was very severe and stormy, that the ship had to run under the land several times, and the coamings of the hatch were injured by the sea. “Any damage done to the cargo by water was occasioned by stress of weather, but the greater part of the damage was caused by the cargo heating during the long time in which it lay in the vessel's hold.”

He offered £10 and expenses up to the date of the defences, as in full of all claims for damages.

Williams raised a counter action for freight. The amount of freight due was not denied, but Dobbie claimed to set off the damage claimed by him in the other action against freight.

The Lord Ordinary having conjoined the actions, proof was led. The defender (Williams) at the proof abandoned his defence that the cargo had been to any material extent damaged by heating, and accounted for the damage by leakage through the seams of the vessel caused by stress of weather. As regards dunnage, it was proved that about 6 inches of wood and brushwood had been laid on the floor and bilges, and that brushwood had also been placed for some distance up the sides. The pursuer's (Dobbie) witnesses stated that there ought to have been 9 inches of dunnage in the bilges and 2 inches all the way up the sides, while the skilled witnesses for the defender were of opinion that looking to the construction of the vessel, which had a good rise of floor, 5 to 6 inches on the floor and bilges was sufficient; and that it was not usual to dunnage coasting vessels on the sides.

After proof the Lord Ordinary found in the action for freight that the pursuer (Williams) was entitled to £43, 6s. 3d. with interest, as concluded for; in the counter action, at Dobbie's instance, he found the pursuer entitled to £75 as damages; and therefore in the conjoined actions decerned against Williams for £31, 13s. 6d., being the balance between these sums; he found Williams liable in expenses in the conjoined actions.

“ Opinion.—[After stating the facts above narrated, and quoting the statements made by Williams (as above given) in explanation of the damage]—“Now, from the averments of the parties here, I do not think it is disputed on the record that the defender received this cement on board his vessel, as his charter-party and bill of lading say, in good condition, and it was his duty to deliver it at Dumfries in the like good condition in which he got it. It lay, therefore, on the defender to show and to prove why it was not in that good condition on his arrival at Dumfries if he meant not to be responsible for it.

As I read it, this defence is that part of the cargo was damaged by water caused by bad weather, and that the greater part of it was damaged or deteriorated through some defect inherent in itself.

I think it would be a good defence, if substantiated clearly, that the damage was caused through stress of weather, because it is a fact that if a ship does encounter more than ordinarily bad weather resulting in damage to the cargo, the master or owner of the ship is not liable. I think the onus in this case, of proving that the damage to the cargo was not occasioned by his fault, lies with the defender; and with reference to that part of the case in which he says that the greater part of the damage to the cargo was caused by heating, and therefore deteriorated on that account, I think that is absolutely disproved; and there remains, therefore, so far as this record is concerned, the question whether the lesser damage was caused by stress of weather.

Now, with reference to the facts of this case, I am disposed to think that this vessel, if not overloaded, was at all events very heavily loaded. I think that; but I think further that the vessel upon this occasion was insufficiently dunnaged. I am clear that there is no absolute rule about dunnaging. I consider it is the duty of a captain, having regard to the voyage and the nature

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of his cargo, if he wishes to avoid liability for injury which may be done to the cargo, and to which it may be exposed through stress of weather or otherwise, to see to the dunnage of his vessel, to guard against such risks. Now, I think, in point of fact, that though here the onus lay upon the defender to show that he did so, it has not been shown that the vessel was sufficiently dunnaged. Upon that important question I have no hesitation in saying that I believe the witnesses for the pursuer in preference to the witnesses of the defender—that is to say, that I think the vessel was insufficiently dunnaged.

I think, further, that although it may be, and probably is true, that some injury was caused to the vessel by stress of weather, and that some of the damage to the cargo was caused by stress of weather—because I think it is shewn that at the beginning and towards the end of the voyage the vessel did encounter severe and stormy weather, and that some damage, more or less, was caused by that—yet I think if the vessel had been sufficiently dunnaged the damage would not have been great. But then, if the vessel was insufficiently dunnaged, it may become a very difficult question to determine how much damage in point of fact was suffered through stress of weather, and how. much in point of fact was caused by insufficient dunnage, because it appears to me that if the vessel had been sufficiently dunnaged there certainly would have been very much less damage from stress of weather than from other causes.

And that being my opinion, the result is that I think the defender has not made out that no part of the damage was caused by acts for which he is responsible. He himself probably knows best how the damage was caused. He says on record that only a small part of it was caused by water coming in. He now says that the greater part or all of it was caused by that, but I take leave to say that the vessel was not properly dunnaged; and I am not satisfied that if this vessel had been sufficiently dunnaged the greater part of the damage actually sustained would have happened, because we have it in evidence that bags all round the sides of the vessel were sticking together, and that a large number of bags were found on the floor of the hold in the same condition,—all caused, as I think the evidence shews, by insufficient dunnage.

There is a dispute as to the evidence of the witnesses in Dumfries, whospeakas to whether the damage was little or very considerable in amount; and I have again to say in regard to this matter of evidence, as I said before, that I prefer the evidence of the pursuer's witnesses to that of the witnesses for the defender.

And that being so, the question comes to be one as to the amount of damage, and appears to be essentially a jury case in that respect, and I must do the best I can in judging between the parties. I am willing to make some allowance to the owner of the ship for unavoidable damage arising from stress of weather, and causes of that kind; and on the whole matter, so far as loss is concerned, I am disposed to think that if I give the pursuer the sum of £75 he will be sufficiently remunerated for any damage he may have sustained. That is taking the rough axe to the matter, but I do not think that any other course seems open to me in the circumstances.

The only other question that remains is the plea that the pursuer is barred by his own actings from insisting in his claim in this action. I do not say anything upon that matter further than that I think it is proved, by Dobbie and other witnesses that the captain had distinct notice, on the Sunday after the cargo had been inspected and known to be damaged, that a claim for damage would be made against him. I do not know that there is any law requiring that such notice shall be in writing. The captain had distinct notice of the claim; and it was quite in his power, while the cargo was still on board of his ship, to take means to ascertain the extent of the damage, and how it was caused.

On the whole matter, therefore, I propose to find, in the first action, that the pursuer Williams is entitled to the sum sued for in his summons; and in the action at the instance of Dobbie, that he is entitled to damages to the extent I have stated, that is, £75, and in the ordinary way, setting one sum against the other, and giving decree to Dobbie for the difference, and of course giving him his expenses.”

Argued for the reclaimer—The Lord Ordinary was wrong on the question of onus. The reclaimer having shown the weather to have been of extreme severity, and the cement to have been damaged by sea water, the legal presumption was that the damage had been caused by a peril of the sea for which the shipowner was not liable, and it then lay with Dobbie to prove that the damage had not been caused by the state of the weather but by the fault of the reclaimer in applying insufficient dunnage or otherwise— Czech v. General Steam Navigation Co., L.R., 3 C.P. 14, and Orloff v. Discoll, L.R., 1 Priv. Conn. App. 231. The onus though originally on the defender in respect of his undertaking in the bill of lading, was shifted to the pursuer as soon as by proof of stress of weather, and consequent leakage during the voyage, the damage could be accounted for by one of the excepted risks. The pursuer had failed to prove that the vessel was insufficiently dunnaged, or had been overloaded before leaving Rochester.

Argued for respondent — The onus which defender admitted had not been discharged. The cargo had been admittedly shipped in good order, and the defender was liable for the portion damaged when it reached Dumfries, for if the vessel had been properly dunnaged the sea-water would not have reached the cement. Sea-water could not fairly be said to be one of the excepted risks in a charter-party.

At advising—