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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham v. Colvils, Lowden, & Co. [1888] ScotLR 26_249 (21 December 1888)
URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0249.html
Cite as: [1888] SLR 26_249, [1888] ScotLR 26_249
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Ship — Charter-Party — Exceptions — Out and Home Voyage — Error of Navigation during the Voyage.
Facts:
A charter-party exempted the owners of a steamship from liability for loss arising from “the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and error or negligence of navigation, of whatsoever nature and kind
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during the said voyage.” Before starting on a return voyage from a foreign port the boilers were filled with muddy water. When she was at sea some of the mud clogged the valves of the water-gauge, and the engineer, led by “false water” in the gauge-glass into the erroneous belief that there was an over supply of water, shut off the boiler feeds. In consequence the water was reduced so low in the boiler that the crowns of the wing furnaces collapsed, with the result that the vessel was lost through the failure of steam power. In an action by the charterers against the shipowners for damages on account of the loss of the cargo, the Court assoilzied the defenders, in respect that the ship was lost through “error or negligence of navigation” on the part of the engineer (1) in not “blowing out” the muddy water after the ship got to sea, which it was proved could have been done, and (2) in shutting off the boiler feeds, and keeping them shut off till the water was reduceed dangerously low in the boiler.
By a charter-party it was agreed that a steamship should proceed to a port in Spain and there take in a cargo, and the shipowner was exempted from liability, inter alia, for loss of the ship through “error or negligence of navigation … during the said voyage.”
Opinion ( per Lord Shand) that if the vessel was rendered unseaworthy through “error or negligence” on the part of her master or crew in the port of lading the shipowners would not be freed from liability on account of her loss by the exceptions in the charter-party, it being an implied term of that contract that the ship should be seaworthy at the time she left with her cargo.
Vide The Seville Sulphur and Copper Company (Limited) v. Covils, Lowden, & Company, ante, vol. xxv. 437, and 15 R. 616.
By charter-party dated Glasgow, 2nd September 1886, it was agreed between Colvils, Lowden, & Company, owners of the steamship “Ethelwolf,” and J. R. Cunningham junior, merchant, Glasgow, inter alia—“That the said ship, classed 100 Al, and being tight, staunch, strong, well manned, victualled, equipped, and in every way seaworthy, and well fitted for the voyage, shall, with all possible speed, sail and proceed to Seville, Spain, and after being well and sufficiently ballasted with ore or lead if required, and not sand or mud, or anything which may be prejudicial to the cargo, the said master shall take and receive on board the said ship, from the agent of the said charterer, a cargo of fruit, say not less than 3000 H/chests oranges, or other lawful merchandise which the said charterer agrees to ship, not exceeding what she can safely stow and carry, over and above her tackle, apparel, provisions, and furniture.… The cargo being thus loaded, the said owner engages that the said ship shall proceed therewith with all possible speed direct to one of the under-noted ports (as ordered on signing bills of lading), and there deliver the said cargo at the place and in the manner directed by the consignees, to whom the ship is to be addressed.… The master to sign bills of lading at any freight required by charterers, but without prejudice to this charter-party.… Penalty for non-performance of this agreement—Estimated amount of freight (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and error or negligence of navigation, of whatsoever nature and kind, during the said voyage, always excepted).”
The “Ethelwolf” left Swansea on 20th November, and arrived at Seville on 27th November 1886. The agent of the charterer there shipped on board her 3200 boxes of oranges, for which the master signed a bill of lading in the following terms:—“Shipped in good order and well conditioned by J. S. Macdougall, in and upon the good ship or vessel called the ‘Ethelwolf,’ whereof Cargill is master for the present voyage, and now lying in the harbour of Seville, and bound for Antwerp, 3200 boxes best Seville China oranges, being marked and numbered as in the margin, and are to be delivered in the like good order and condition at the foresaid port of Antwerp, act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever excepted, unto order or to assignees, freight for the said goods, as per charter-party, with primage and average accustomed. In witness whereof the master or purser of said ship hath affirmed to two bills of lading of this tenor and date, the one of which being accomplished, the other one to stand void.”
The “Ethelwolf” sailed from Seville for Antwerp on the 5th December. Shortly after leaving Seville she grounded on a bank on her way down the river Guadalquiver, where she remained about an hour. On getting off she proceeded to sea. The weather was fine on the 6th and 7th, but on the 8th it began to blow hard, with a high sea. About half-past four on that afternoon the crowns of the wing furnaces of the boiler came down, and the engineer, to avoid an explosion, drew the fires. About two hours afterwards the captain, finding the vessel was being driven on shore, ordered the fires to be re-lighted, which was done. The boiler, however, leaked to such an extent that sufficient steam pressure could not be got up to keep the vessel off shore, and after an ineffectual attempt had been made to navigate her under sail, she and her cargo were lost on the coast of Spain, near Vigo, on the afternoon of 10th December.
In October 1887 the charterer J. R. Cunningham junior raised an action in the Sheriff Court of Lanarkshire against Colvils, Lowden, & Company for payment of £1536 in respect of their failure to deliver the cargo of oranges.
The pursuer averred, inter alia—“She was further unseaworthy, in respect that prior to leaving Seville the boiler was filled with excessively muddy water. Such water is very injurious to boilers, and apt to derange the boiler connections, and to lead to injury to the furnace crowns. The sails were old and defective, and insufficient in number, and no spare sails were provided, and her bridge-steering gear was out of order and useless.”
The defenders in answer 4 denied these statements,
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and explained that the vessel was in all respects seaworthy when she left Seville. Her loss was due to perils of the sea, or to error and negligence in navigation, or to both of these causes combined. The pursuer pleaded—“(2) Said goods having been lost in consequence of the unseaworthiness of the ‘Ethelwolf’ when she sailed on the voyage in question, decree should be granted as craved.”
The defenders pleaded—“(2) The loss of the ‘Ethelwolf’ having been due to causes falling under the exceptions specified in said charter-party, the defenders ought to be assoilzied.”
The defenders appealed to the First Division of the Court of Session, and their Lordships of consent appointed the cause to be tried without a jury, and remitted to Lord Kinnear to proceed therewith.
The evidence consisted partly of evidence taken in the action at the instance of the Seville Sulphur & Copper Company (Limited) against Colvils, Lowden, & Company, and partly of additional evidence taken in the present case. It is examined in detail in the opinions of Lord Adam and Lord Shand. The material facts held to be established were as follows—The boiler of the ‘Ethelwolf’ was filled with muddy water from the river Guadalquiver about thirty-six hours before she started from Seville. It was the regular practice of steamers like the ‘Ethelwolf’ to fill their boilers with river water not only in the Guadalquiver but in other rivers of the same character, such as the Seine and the Garonne. While proceeding down the river from Seville the vessel took the ground on a mud bank. In the course of an hour she was got off, and a small quantity of water was taken in to re-place the loss occasioned in the effort to float the steamer. The tide was running up the river at the time. At sea on the morning of the 8th December the valves of the water-gauge got clogged with mud, and the glass consequently showed ‘false water.’ The engineer, misled by the appearance of the glass into the belief that there was an over-supply of water, shut off the feeds, and kept them shut off till the water got so low in the boiler that the crowns of the wing furnaces were bared, and were consequently so over-heated that they collapsed. Taking it as proved that the mud which led to the loss of the vessel was taken in when the boiler was filled with muddy water at Seville (and the majority of the Court inclined to that view), it was also proved that that muddy water could have been blown out by a method well known to engineers when the vessel got to sea.
The Lord Ordinary ( Kinnear) on 17th February 1888 pronounced the following interlocutor—“Decerns against the defenders and appellants for the sum of £1536, with interest at the rate of 5 per cent per annum from the tenth day of December 1886 until payment: Finds the defenders liable in expenses, &c.
“ Opinion.—This is an action against a shipowner for damages for failure to deliver a cargo shipped at Seville on board the defenders' steamship ‘Ethelwolf.’ The contract is contained in a charter-party, by which it is stipulated that the penalty for non-performance shall be ‘the estimated amount of freight, the act of God, the Queen's enemies, and fire, and all and every other dangers and accidents of the seas, rivers, and errors or negligence of navigation of whatsoever nature and kind during the voyage always excepted,’ and the only question is whether the defenders have proved that the loss of their vessel and their cargo was due to one or other of these excepted causes.
The ‘Ethelwolf’ sailed from Seville on the 3rd of December 1886. On the afternoon of the 8th, while she was off the coast of Spain, and in very rough weather the crowns of the furnaces were found to be sinking, and the engineer considered it necessary to draw the fires in order to prevent an explosion of the boiler. But the ship could not make headway under sail, and as the only means of keeping her off shore the master ordered steam to be got up, while the boiler was not yet cool enough to allow of its being filled with cold water without injury. The boiler was filled accordingly by pumping water from the sea, and the natural effect of that operation was to cause serious leakage, so that it was found impossible to get up steam enough to work the engines. The ship drifted towards the shore, and ultimately went on the rocks, and was abandoned by the master and crew, and became a total loss.
In these circumstances there can be no question that the loss was caused by a peril of the sea in the ordinary sense of these words, and it has been decided by the House of Lords in the case of the ‘ Xantho,’ L.R., 12 App. Cas. 503, that the words must have the same meaning in a contract of affreightment as in any other maritime instrument. But that decision does not affect the general rule that a stipulation for exemption from the enumerated risks will not relieve the shipowner of his obligation to provide a ship that shall be seaworthy, and in every way well fitted for the voyage which he engages that he shall perform. Nor does it alter the rule that if he fails to deliver the cargo the burden lies upon him to prove that his failure is attributable to a cause for which he is not responsible under his contract. The defenders therefore must prove that the failure of the boiler which occasioned the loss of the ship was attributable to causes arising subsequently to the departure of the ship from Seville. If it was attributable to the negligence during the voyage of persons in their employment, they will not be responsible, because they have expressly stipulated that they incur no liability for the consequences of such negligence. But if it is to be ascribed to anything in the condition of the boiler before the sailing of the ship, the ship was not seaworthy, because owing to the state of her boiler she was not, to use the language of Lord Cairns in the case of Steel v. The State Line Steamship Company, ‘in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, might be fairly expected to encounter’ upon the voyage she was required to perform.
The evidence as to the condition of the boiler before the departure from Seville is not altogether satisfactory. There is evidence that the tubes were leaking, and also that a dangerous crust or scale might have been deposited, which, if it existed when the ship came into harbour at Seville, was not removed before she sailed on the voyage in question. On the other hand, there is evidence that the leakage was not greater than might reasonably be expected, and
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But it is a more material consideration that the pursuer is not required to establish the cause to which the accident must be ascribed. They have suggested a probable cause. But it is not enough for the defenders to show that the cause so suggested has not been sufficiently proved. The fact is that their boiler failed, and the inference is that when the ship sailed it was not in a fit condition for the voyage, unless they can prove by affirmative evidence that the failure is to be ascribed to some specific cause arising during the voyage. I think there is no evidence sufficient to displace the inference arising from the fact of the failure. Theonly cause suggested by the defenders is that the engineer by an error of judgment shut off the feed, and so allowed the water to evaporate without supplying the place of what was lost. The opinion of the experts examined for the defenders upon this point proceeds upon the assumption that the feed was entirely shut off for a period of four hours. But there is no evidence for this. The only evidence tending to prove it is that of the engineer William Thomson. His evidence is not in my opinion satisfactory. But he does not say, and there is nothing else in the evidence to prove, that the feed was shut off for the time that it is indispensable to support the defender's theory.
On the whole, therefore, I am of opinion that they have not explained by any satisfactory evidence the failure of the boiler, which undoubtedly was the direct cause of the loss of the ship, and therefore that they have failed to prove that their ship was seaworthy when she sailed from Seville.
I do not think it proved that she was unseaworthy in any other respect except from the condition of her boiler. But in the view I have taken it is unnecessary to examine the evidence upon other points in detail.”
The defenders reclaimed, and argued — The contract here was contained in the charter-party and the bill of lading taken together, and not in the bill of lading only—Scrutton on Charter-Parties, 33. “Errors or negligence of navigation” were therefore within the exceptions. The onus of proving that the vessel left Seville in an unseaworthy condition was in the pursuer. Assuming that the owners were, in the first place, bound to account for non-delivery of the cargo, the onus was shifted by the fact that the vessel had admittedly been wrecked, and therefore prima facie lost by a peril of the sea. It now lay with the charterers to prove that the loss was due to a cause for which the shipowner was responsible. In Steel & Craig's case the onus was assumed all through to be on the charterer—
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The pursuer and respondent argued—The defenders had failed to deliver the cargo, and so the onus lay primarily on them to account for their failure. Admitting that they had discharged that onus by showing that the vessel had been wrecked, and had thus prima facie been lost by “peril of the sea,” the onus was again shifted when it was proved that the official cause of the loss was a breakdown of the steam power, and it remained with the defenders to prove that the breakdown was due to “an error or negligence of navigation.” This they had failed to do— Williams v. Dobbie, June 29, 1884, 11 R. 982. The weight of the evidence supported the pursuer's theory of the cause of the accident, that it was due to the formation of a muddy cake on the furnace crowns. But whether the pursuer's or the defenders' theory was the true one, the loss of the vessel was due to the presence of mud in her boiler, and it was much more likely that that mud had been taken in at Seville, when the boiler was filled, than during the short time while the vessel was on the bank. It was further argued by the defenders that even if the mud which did the damage was taken on board at Seville, still that was an “error of navigation.” But it was not an error “during the voyage.” That had been already decided in the case of The Seville Sulphur and Copper Company's case, ante, vol. xxv., 437, 15 R. 616. As the charter-party was imported into the contract by reference in the bill of lading, these words were part of the contract, and the voyage must be that for which they were then preparing. In the case of Bruce v. Nicolopulo the vessel at the time she was seized was under the charterers' orders. And though several of the other cases on this point amounted to this, that where a shipowner had undertaken to go to a port for goods, and was prevented by an excepted cause, he would be excused, that did not solve the question whether the shipowner when he came to the port of lading, and granted bill of lading, was absolved from his obligation to provide a sea-worthy ship. None of the cases quoted by the pursuer at all touched the question whether the shipowner would be liable for accidents in the port of loading— Worms v. Storey, November 23, 1855, 11 Exch. H. & G.'s Rep. 427; Cohn v. Davidson, February 9, 1877, 2 Q.B. Div. 455; Smith v. Darl & Son, November 28, 1884, 14 Q.B. Div. 105. If the pursuer was right the vessel started on her voyage with a dangerous amount of mud in her boiler. That mud could not have been blown out when the vessel got to sea, as it had had time to harden before steam was got up, and when the rolling of the vessel showed mud the weather was too rough for the operation of “blowing out” the boiler. The vessel therefore left Seville in an unseaworthy condition. This case was a fortiori of Steel & Craig. Any difference in the two contracts was to the advantage of the pursuer's argument—
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At advising—
By charter-party entered into between them, of date 2nd September 1886, it was agreed that the said ship being tight, staunch, strong, well-manned, victualled, equipped, and in every way seaworthy and well fitted for the voyage, should, with all possible speed, sail and proceed to Seville, Spain, and that the master should take and receive on board the said ship from the agent of the charterer a cargo of fruit, say not less than 3000 H/chests oranges.
It was, further, thereby agreed that the master should sign bills of lading at any freight required by charterer, but without prejudice to the charter-party.
The charter-party further contained a clause in these terms—“Penalty for non-performance of this agreement, estimated amount of freight, the Act of God, the Queen's enemies, fire and all and every other dangers and accidents of the seas, rivers, and error or negligence of navigation of whatsoever nature and kind during the said voyage always excepted.”
The vessel left Swansea on the 20th November, and arrived at Seville on the 27th November 1886. She then shipped 3200 boxes of oranges, for which on 4th December the master signed a bill of lading, which bore that the said oranges were to be delivered at the port of Antwerp—“Act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever excepted.”
It will be observed that the bill of lading does not except “error or negligence of navigation of whatever nature or kind during the voyage” as the charter-party does, but it was not disputed by the charterer that he was bound by the clause of exception as contained in the charter-party.
The vessel sailed from Seville on her voyage to Antwerp on the morning of the 5th December. Seville is on the river Guadalquiver, about sixty miles from the sea. About an hour after leaving Seville the vessel grounded on a bank in the river, where she remained about an hour, more or less. On getting off she proceeded on her voyage, and got to sea on the same evening. The weather was fine during the 6th and 7th, and all went well, but on the 8th it began to blow hard with a very high sea. About 4·30 on the afternoon of that day the crowns of the wing furnaces of the boiler came down. When this occurred the engineer, to prevent an explosion, drew the fires. The captain, finding the ship was being blown on a lee shore, ordered the fires to be re-lighted. The engineer, accordingly, about 6·30 re-filled the boiler with water from the sea and re-lighted the fires. The boiler, however, leaked to such an extent that sufficient steam pressure could not be maintained to prevent the vessel from being driven on shore, and she and her cargo were lost on the coast of Spain, near Vigo, on the afternoon of 10th December. There is no question that the vessel was wrecked in consequence of the failure of steam power, and that this failure is to be attributed to the coming down of the crowns of the furnaces, which necessitated the drawing of the fires.
The loss of the ship was undoubtedly caused “by the perils of the sea,” and falls within the risks excepted in the charter-party. But the charterer maintained that the ship was unseaworthy when she left Seville, and that this unseaworthiness caused the loss of the ship. No doubt, if this be so, the owners will be liable. The owners, on the other hand, maintain that the ship was in every respect seaworthy, and that the injury to her boiler was caused by the error or negligence of the engineer, and that they are not liable in respect of the exception of error or negligence of navigation” contained in the charter-party. These therefore are the questions for decision in this case, and the first is the question of fact, whether the vessel was seaworthy when she sailed from Seville and commenced her voyage.
The charterer sets forth, in the 4th article of his condescendence, several particulars in respect of which he alleges that the ship was unseaworthy, but the only one about which there is, I think, any room for serious controversy is thus expressed—“She was further unseaworthy in respect that prior to leaving Seville the boiler was filled with excessively muddy water. Such water is very injurious to boilers, and apt to derange the boiler connections, and to lead to injury to the furnace crowns.”
The facts as to filling the boiler with water at Seville appear to be as follows—The boiler had been blown down (that is, emptied of water) after the ship arrived at Seville for the purpose of making some repairs. These having been finished, the crowns of the furnace were cleaned and the boiler washed out. Then about 10 o'clock on the night of Friday the 3rd December, or about thirty-six hours before the vessel sailed, the boiler was filled with water from the river. This time was chosen because it was then high tide, when the water of the river would probably be freeest of mud.
The question is, whether the taking in of this water rendered the ship unseaworthy? There is no doubt, I think, that the presence of mud in the boiler of a steamer in large quantity may be
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It is proved that there are no hydrants or other facilities at Seville by which steamers which have blown down their boilers can re-fill them except with water from the river. It is proved that it is the regular practice of such steamers to do so, and that no injury has resulted to them from doing so. There is no contradictory evidence as to this. It is also proved that it is the practice of steamers to do so in rivers of a like character to the Guadalquiver, such as the Seine and Garonne. If this be so, it would be difficult to hold that all such steamers are thereby rendered unseaworthy.
But it is said that in this case the muddy water was taken in so long before the vessel sailed, about thirty-six hours, that the earthy matter in suspension would be precipitated and so cause danger to the boiler. There is, however, no evidence that it was anything out of the usual course to fill the boiler so long before sailing, or that the earthy matter would not have been as completely precipitated in six as in thirty-six hours. There are no questions asked on the subject. It does not appear to have occurred to the pursuer, when the witnesses were being examined, that there was anything objectionable in the matter. I do not myself see that the mud constituted a greater element of danger, lying at the bottom of the boiler, than when in suspension in the water, and in fact the pursuer's case is, that the mud was stirred up from the bottom by the rolling of the ship, and in this way, and not till then, became a source of danger.
But the defenders have another answer on this part of the case. They say that if the presence of the mud in the boiler constituted such an element of danger as to produce unseaworthiness if not removed, yet it could and ought to have been removed as soon as the vessel got to sea by blowing it out of the boiler and taking in sea water. This, they say, is a method quite simple, and known to every engineer, and that if the vessel was lost by reason of the presence of the mud she was not lost because of unseaworthiness, but because of the error or negligence of the engineer in not blowing it out of the boiler. In my opinion the defenders are right in this contention, and that it is supported by the principles laid down in the House of Lords in the case of Steel & Craig, 4 R. 103. In that case, where a ship sailed with an open or insufficiently secured porthole, by which the water entered and damaged the cargo, it was suggested that whether the ship was or was not seaworthy depended on the position of the porthole; if it was easily accessible, and could be easily closed, the ship would be seaworthy; but if it was not so accessible, but would cost much time and trouble to get access to it in order to put it right, the ship might be unseaworthy. So here, if the steamer was in no danger from the mud in the boiler so long as she was in the Guadalquiver river—and it is not suggested that she was—and if the mud could have been easily removed on reaching the sea, then I think she was in a seaworthy condition, and perfectly fit for her voyage when she left Seville, and that the danger, if any, from the state of the water arose from the engineer not having removed it.
Now, I think it is proved that the muddy water in the boiler could have been easily removed. One of the witnesses, Mackenzie, thus describes the operation—“It could easily,” he says, “have been cleared out afterwards, when the vessel got out to sea—that could have been done by blowing or scumming the boiler. The bottom blow-off cock could have been turned on, and the water taken in from the sea alternately until the water in the boiler was found to be perfectly clear. That is the proper method, and is well known to engineers.” Six or seven of the defenders' witnesses speak of this as being a common and simple method of getting rid of mud in boilers.
But the pursuer has examined three witnesses—Messrs Neish, Donaldson, and Darling—who say that it would not have been practicable in this case, because the mud had had time to settle in the bottom of the boiler. Neish says “that if the mud in the water had thirty-six hours to settle before steam had been got up, I don't think you could blow it off after steam had been got up. The mud would settle down in the bottom of the boiler, and get comparatively hard with the cold water, and get quite quiescent. There would be no inducement for it to be blown off, except just round about the orifice of the blow-off cock;” and Messrs Donaldson and Darling agree with him.
Mr Neish, however, says at another part of his evidence that the particles forming the mud would be in the condition of loose soft sludge, and if this was its condition, I do not see why it should not be easily blown off. I do not think it is proved that the mud would get into any such hardened condition as here described. The evidence shows that the mud was in such a condition that when the ship began to roll it mixed with the water, which had theretofore been clear. Roger, the assistant engineer, is asked—“Did anything unusual occur during your watch?—(A) Yes, the water in the gauge-glass got very muddy about three in the morning” (that was of the 8th). “(Q) What was wrong?—(A) The wind had got abeam, and the rolling had turned up the mud. When I saw the mud I blew the gauge-glass down.” He then says he did this several times, and reported it to the engineer at six o'clock, when he was relieved from his watch. He came back at eight, when he noticed that the water in the gauge-glass was very muddy, and he says that he kept blowing it down.
The pursuer's witness Donaldson is asked—“If an engineer could not get better water than muddy water, and had then to take it out, his duty would be to blow down the boiler, and thereby blow out the muddy water when he got to sea?—(A) Yes, I should think it would be his duty to do so. I think he could not get the whole out in that way which had settled as a deposit. (Q) But if the vessel began to roll, so as to mix the mud with the water, he could blow it off then?—(A) Yes, he could get rid of it then, when mixed with the water. I think that if mud was moving about in the boiler in such a way that it could reach the furnace-crowns, or show itself in the gauge-glass, it could have been blown off. (Q) Is it not a perfectly familiar operation to
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It appears to me therefore to be proved that there could have been no difficulty in this case in blowing out the mud, either when the ship first reached the sea, or, at any rate, later, when it was moving about in the boiler.
The two engineers of the ship, who ought to have known best, are of that opinion. Roger says so, and Thomson, the engineer, says—“I could have got the supplementary feed to work and put in sea water, and blown out the river water and the mud along with it. That, however, did not occur to me at the time;” and he says—“We could have blown off the mud after we started if we had tried. I did not do so because I did not know there was any mud in the boiler to the extent of being a source of danger.”
On this part of the case therefore I am of opinion that the ship was seaworthy when she sailed on her voyage from Seville.
The defenders maintained further, that if the ship was unseaworthy because of mud in the boiler, it was not the muddy water taken at Seville that rendered her so, but mud taken in when she was aground on the bank in the river, in which case they say the vessel was lost from dangers of navigation during the voyage.
It is not necessary in the view I have taken of the case to consider that matter at length, but my opinion is that the quantity then taken in can have made no appreciable difference on the amount of mud already in the boiler due to the water taken in at Seville, and can have made no difference in the result.
It is also right to state that it was maintained by the owners that on a sound construction of the charter-party and bill of lading the voyage must be held to have commenced at Swansea and not at Seville; that consequently, if the taking in of the muddy water at Seville rendered the vessel unseaworthy, that was caused by error or negligence of navigation during the voyage, for which under the charter-party they are not liable. In the view, however, which I take of the facts it is not necessary to determine that question either.
The next question to be considered is the cause of the collapse or falling down of the furnace crowns. The falling down of the furnace crowns is undoubtedly caused by the over-heating of the metal, and this again is attributable to one or other of two causes, either to the deposit thereon of a non-conducting crust, which prevents the transmission of heat from the metal to the water in the boiler, or to the water in the boiler having been allowed to fall below level of the crowns.
The facts bearing on this part of the case appear to be as follows—Nothing went wrong with the engines or boilers until about 11·30 on the morning of the 8th, when the gauge-glass instantly filled with water. This, no doubt, was caused by the gauge-valves, or its connections becoming clogged with mud. About 4.30 the crown of the port-furnace collapsed, and a few minutes afterwards that of the starboard furnace. Thereupon the engineer drew the fires and reported the fact to the captain. The captain, however, finding that he was drifting on a lee shore, shortly afterwards ordered steam to be got up again. The boiler was re-filled from the sea and the fires re-lighted about 6·30. The consequence, however, of the cold water coming in contact with the still heated metal of the boiler, such an amount of leakage took place that steam of a sufficient pressure in the boiler could not be got up to enable the vessel to make headway enough to keep her off the land, and hence the catastrophe.
I think the collapse of the crowns of the furnaces was caused by the water in the boiler having been allowed to fall below the level of their crowns. The engineer is of that opinion now, and he was of that opinion at the time. This is clear from Captain Cargill's evidence. He says—“I remember about 4·30 in the afternoon of the 8th having a conversation with the engineer. He told me that he would have to withdraw the fires. (Q) What reason did he give?—That the water had got so low in the boiler that he could not keep up the steam.” And further down he is asked—“Did you remonstrate or say anything to him?—(A) Yes, I said the ship is in a very dangerous position to do that. Could he not keep steam on till I got the ship perhaps 8 or 10 miles from the land? Did he draw the fires?—(A) He came back and said that he must draw them, there was nothing else for it. The ship might be blown up. He did draw them.” In cross-examination he is asked—“You have told us that the engineer reported to you that he had to draw the fires because the water was so short. That is so. I am sure that that is the report he made to me.”
Then the fact that the crowns of the two wing furnaces, which were higher than that of the centre furnace, and consequently would be first denuded of water, came down while the centre one remained intact, indicates that the reason was want of water. Again the boiler was refilled with water from the sea before the fires were re-lighted. But this would not have been necessary and would not have been done had the boiler been fed with water in the usual way, as in that case the boiler would have been full. Then, again, the result which followed from filling with cold water the still heated boiler was exactly what was to be anticipated. The cold water coming in contact with the heated metal of the plates and tubes of the boiler, which were of different thicknesses was certain to cause unequal contraction of the metal and consequent leakage. The result was, that whereas the normal working pressure before the fires were drawn was from sixty to seventy pounds, a greater pressure than from twenty-five to thirty could not be afterwards obtained.
Nor is there any difficulty in accounting for the water having been allowed to fall so low in the boiler. The engineer is asked—“Did you ever shut off the main feed?” The answer is—“Sometimes I have done it. (Q) Did you do it on 8th December?—(A) I believe I did, but I do not remember. I thought there was too much water in the boiler from the indication of the steam packing and the engine priming. I cut off the main feed in that way, believing that that was the right thing to do.” It will be observed that by shutting off the main feed he shut off all water from the boiler, as it had also the effect of shutting off the supplementary feed. He is not asked if he
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There is one circumstance which is said to be proved, and is strongly insisted on by the pursuer, as showing that the collapse of the furnace crowns could not have been caused by want of water. It is, that as the tubes of the boiler became successively denuded of water by its evaporation, the heat would cause them to leak, and permit the escape of steam, eventually producing so large a leakage of steam, and a corresponding diminution of pressure of steam in the boiler, that the engineer could not have failed to notice it.
It is said to be proved that there was no such leakage or decrease of pressure of steam noticed, and therefore that the tubes could not have been denuded of water. As it was steam leakage that would result, the steam would escape by the smoke-jack, and it would appear that its escape might not have been noticed by the engineer.
But I do not think that it is proved that no diminution of pressure was noticed before the fires were drawn. The evidence on the point is certainly not satisfactory, because apparently the parties had not realised the importance of it when the witnesses were being examined. Rogers, the assistant-engineer, no doubt says that they were able to keep up the normal pressure till the fires were drawn. But the engineer, who was the proper person to speak as to this, is not specially examined on the subject. It may be gathered, however, from his evidence that he had noticed a diminution of pressure of steam—“Thus,” he says, “I formed the idea that the boiler was getting short of steam, and that there was too much water in it;” and a little lower down he says—“At four o'clock in the afternoon” (that is, about half-an-hour before the crowns collapsed) “I gave orders to have the fires cleaned so as to try to get more steam.”
We have also the evidence of Captain Cargill, who says that when the engineer informed him it would be necessary to draw the fires he told him that the water had got too low in the boiler “that he could not keep up the steam;” and again, that he said “the water had got so low in the boiler that he would be obliged to draw the fires; he could not get steam.” I think therefore that it is sufficiently proved that there was a deficiency of steam in the boiler before the fires were drawn. The proof is not so satisfactory as it might have been, but the fault lies with the pursuer, who ought to have cleared up the matter if he meant to make a point of it.
I do not think it necessary to say much as to the rival theory of the pursuer, that the falling of the crowns was caused by the deposit of mud thereon. It appears to me to be based on assumptions of fact which are not proved, and do not exist in this case.
As to the deposit of mud from muddy water in the boiler, I think the evidence shows that mud per se will not form a dangerous deposit on the furnace-crowns of a boiler. Mr Neish, the pursuer's leading witness, says “that mud by its nature will not form a deposit or crust on the furnace-crowns so as to injure them when the boiler is under steam.”
It appears, however, that mud may possibly do so when it is mixed with oil or grease, and accordingly the pursuer assumes, for the purposes of his theory, an admixture of oil and mud in this case. But there is no proof, and nothing to lead to the inference that there was any such admixture in the boiler. I think therefore that there is no foundation for the pursuer's theory. But even assuming that there might have been such a dangerous admixture of oil and mud in the boiler as the pursuer assumes, I think the facts show that it had formed no dangerous deposit on the crowns of the furnaces. If such a deposit had been formed, one would have expected it to have been first formed on the crown of the centre or lowest furnace, and that it would have come down first. In the next place, the boiler would have been in its usual condition as to water, and would not have required to be filled with water from the sea, as the engineers say they filled it. Neither would there be anything to account for the great leakage which took place after the fires were re-lit, as there would have been no cold water to come in contact with the heated metal, and nothing to cause increased leakage; and finally, if a deposit on the crowns of the furnaces had been the cause of their collapse, it is difficult to see why, after the fires were re-lit, the crown of the centre furnace should not have collapsed, and the crowns of the wing furnaces come still further down, seeing that the origo mali, the deposit, was presumably still upon them.
On the whole matter, I am of opinion that the collapse of the crowns of the furnaces, and consequent deficiency of steam pressure and loss of the vessel, is clearly traceable to want of water in the boiler, and that this deficiency of water was caused by the negligence of the engineer in failing to turn on the main feed after he had turned it off; that consequently the loss of the vessel was caused by error or negligence of navigation during the voyage; that therefore the failure to deliver the cargo is covered by the exception to that effect in the charter-party, and that the defenders are entitled to absolvitor.
We were referred to the case of The Seville Sulphur and Copper Company against the present defenders, 15 R. 616, which was an action brought against them for the delivery of 350 tons of sulphur ore, which formed part of the cargo of the “Ethelwolf,” and was lost with the vessel, and in which the Second Division arrived at a different conclusion to that at which I have arrived, but it is enough to say that the evidence we have had to consider is materially different from the evidence in that case.
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Then, generally, in regard to the case the pursuer's claim is made upon the footing that the cargo was lost and the ship lost because the taking in of the muddy water, producing unseaworthiness, really caused the accident, by having been the direct cause of the falling down of the crowns of the boiler, and consequent failure of the motive power. Now the Court must be satisfied upon this point, not only that the vessel was unseaworthy, but that the unseaworthiness caused the loss of the cargo. The case is not one like that of insurance where it is quite sufficient, in order to void a policy to prove that there was unseaworthiness, even though the unseaworthiness was not proved to be the cause of the loss. In the case of insurance, it is a condition-precedent that the vessel shall be seaworthy, and if that condition be not fulfilled the contract of insurance cannot be enforced. In this case, however, there must not only be unseaworthiness, but it must appear on the evidence that the unseaworthiness caused the loss. Now, we had a good deal of discussion upon the question of onus in the case, and I desire to say a few words upon that point. It appears to me in the first place, that the shipowners having been entrusted with the carriage of the goods, and being unable to deliver them, have an onus upon them to show that they are to be relieved of the obligation to deliver, and I think that onus is discharged primarily by showing that the vessel was driven on a lee shore and wrecked. While that was being done, however, it came out in the evidence that the cause of the vessel being so wrecked and driven on shore was the failure of motive power. The pursuer maintains that it is clear that the onus is thereby thrown upon the defenders in the action to account for this, that it is to be presumed that the failure of the motive power arose from the unseaworthiness in respect of the boiler being defective, or in a condition dangerous to the ship when she left Seville. The defenders say no; that there is a clause in the charter-party saving them from the effects of the negligence of those who were working the ship, and that this was just as likely to happen from the negligence of those working the machinery as from the alleged defective state of the machinery itself three or four days before, when
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Now, so taking the case on this question of onus, which I think is simply a question as to the presumption arising from fact, I entirely agree in the view which Lord Adam has expressed as to the true cause of this accident. And even supposing it had been proved that the vessel had taken in so much mud from the muddy water, taken in at Seville, as might possibly cause danger to the boiler (which, however, is not proved in my opinion), yet I am of opinion with his Lordship that the pursuer has failed to make out that this was really the cause of the accident. It appears to me that the theory on which the pursuer proceeds is ingenious, but much too speculative, and having fully considered the proof on the subject, the theory which seems to me to proceed on too many assumptions of fact, does not recommend itself to my mind. I do not think that there are facts proved in the evidence on which that theory can be satisfactorily established, and I think there are facts proved which conflict with it. When the vessel left Seville, according to Neish and other witnesses, who took the view that mud had ultimately settled down on the crowns of the boiler and caused them to collapse, everyone seems to be agreed that the muddy water having been thirty-six hours in the boiler, the mud must have fallen as a deposit—I shall not call it a cake, because it was a loose deposit—on the bottom of the boiler. There is no suggestion that there was anything on the furnace crowns then. Now, what is necessary in order to make out Mr Neish's theory? In the first place, the mud which was at the bottom has to be stirred up, and I agree with the witnesses in thinking that it necessarily must have been stirred up. The putting on of fires and the heating of the boiler would immediately cause a certain amount of boiling and stirring up of the mud, and as she went to sea the motion of the vessel would increase that, and after the third day, when the wind and the sea began to rise it would be increased more and more. In that state of matters it appears to me that the mud which was at the bottom must have got all through the boiler. But to make out the pursuer's theory it is required to bring that mud down and deposit it on the two upper furnace-crowns which first gave way, and to deposit it there so that it became a cake adhering to the metal in such a way that the fire was no longer able to act on the water around the two upper furnace-crowns. That is the theory I think. It appears to me that if there would be a settling of mud there—I doubt whether there was opportunity from the motion of the vessel for the settling of the mud at all—it would go to the bottom of the boiler again, and that at least the lowest furnace crown would be the one most readily covered, and would be the first to show symptoms of weakness and to come down, whereas it was the two upper ones that came down. And besides, to carry out the theory you require (1) a certain admixture of oil so as to make the mud adhesive, while the presence of the oil requisite is not proved, and (2) the existence of a current or currents in the boiler of this peculiar nature that they would carry the mud over the low under crown and land it on the top of the two higher side crowns. Looking at all the evidence on the subject, I can only say that this theory does not commend itself to my mind. I think the accident was much more likely to have occurred, and I believe it did occur, according to the evidence, because Thomson, the engineer, to some extent lost his head in the difficulty in which he was placed. When he went to the glass which indicated the presence of mud in the boiler, and the water very high up, and at a time when he says he thought there was priming also, the first thing he would naturally do was to shut off the feeds. The result of this would of course be to let the water get gradually low, and I think the real evidence in the case tends to show that this was what happened. And the first account accordingly which Thomson gave to the captain, when the occurrence was looking serious, was that the boiler was short of water. If the true view of the evidence be that the engineer cut off the water and omitted in proper time to turn it on again, as I think he is brought to confess, that accounts entirely for what happened. The water fell in the boiler, the two upper furnace-crowns
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But even if that were the cause I am still of opinion that the pursuer cannot succeed, because I do not think it has been proved that the vessel was unseaworthy. The case of Steel & Craig v. The State Line Shipping Company shows that if a vessel goes to sea with some defect which, though it would be a cause of danger if left unremedied, may yet be readily cured, as by shutting a porthole, or by any operation that will obviate the danger before it arises, even when the vessel is at sea, that cannot be regarded as unseaworthiness. The owners of the vessel stipulated that any error of navigation during the voyage should relieve them from responsibility. Now, I think the evidence in this case brings out a point which was not before the other Division of the Court in the former case, namely, that if there is such a quantity of mud in the water in the boiler as to lead to any apprehension of danger the engineer has it in his power at once to cure that by blowing off the muddy water, and taking in a supply of sea water. I am not prepared to say that when the vessel left Seville there was sufficient mud to cause danger, but if there was a dangerous quantity of mud so taken in everyone is agreed that the engineer had nothing to do but blow it off. The mud must be shaken up before it could produce the accident—that is part of the pursuer's case—and as soon as it was shaken up in the water, then was the time to blow it off. It is said by the pursuer's witnesses that the mud was all lying at the bottom, and that blowing it off would only take off the part of the mud at and around the orifice by which the water was driven out, but the theory of the pursuer's case is that it would be all shaken up before being deposited again on the crowns. There were two days of fine weather, and only by the third day there was a heavy sea, so there was ample opportunity to have the muddy water blown off, and to take in sea water, and Thomson says if it had occurred to him he would have taken that course. Therefore I am of opinion that in this view it was not from unseaworthiness, but from an omission on the part of the engineer, that the loss occurred. Taking it in either way, my opinion is that the loss was caused either by Thomson having cut off the water and omitted to turn on the feed again, or that it was caused by his failure to blow off the muddy water. In either case the loss was caused by the negligence of one of the servants of the defenders, and on these grounds I concur in the opinion of Lord Adam.
The pursuers maintained another point in argument, viz., that they were not bound under the special terms of the charter-party to have a seaworthy ship starting from Seville, but the best consideration I have been able to give to that question leads me to the opinion that this argument is unsound, It is quite true that the vessel began her voyage at Swansea, and the provision of the charter-party undoubtedly is, that the vessel being then staunch and strong and seaworthy, and fitted for the voyage, should sail for Seville and there take on board her cargo, and then the exceptions of perils of the sea and errors in navigation occur relating to the voyage as a whole. I do not doubt in the least that if the vessel, being seaworthy when she left Swansea, had been lost or delayed on her way to Seville by a cause within the clause of exceptions no claim of damage could have been made against the owners of the vessel for non-arrival or non-arrival in time. The exceptions would apply to any part of the voyage contemplated. But, on the other hand, I am of opinion that though we have here a voyage in one sense out and home, we have also a cargo voyage. The charterers required to have a vessel out into which they could load their cargo, and it appears to me—and there is pretty clear authority for saying—that in every case where there is a provision for taking cargo on board, even on such a charter-party as we have here, it is an implied term of that contract that the ship at the time she leaves with her cargo shall be seaworthy. There are two leading cases on that point which were referred to, one of them in 1876 and the other in 1877, in the Queen's Bench Division of the High Court of England. The first of these was the case of Kopitoff, where a bill of lading having been granted for goods, although there was no stipulation on the subject, the Court held that if a person undertakes carriage of goods on board his ship there is implied in the contract that he shall present a seaworthy ship to carry the cargo. That was the case of Kopitoff in 1 Q.B. Div. Rep. The other was the case of Cohen in 2 Q. B. Div. Rep., and there the case of Kopitoff came up again for consideration, but with this difference, that in the case of Cohen which I have already referred to on another point, there was a charter-party which provided that the vessel should leave a certain place where she was, go into harbour, take on board her cargo, and then sail with it. It seemed to be proved that the vessel was perfectly sound when she left the place at which she had been lying when the charter-party was entered into, that she was perfectly seaworthy when she presented herself to take on board the cargo, but an accident occurred by grazing on the harbour bottom before she left the harbour, and it was maintained that if the vessel was seaworthy when the charter was signed, and when she started to sail for the harbour, the owner was not bound to have her seaworthy when she started with her cargo on board, but the Court in that case laid down the same principle as in the case of the bill of lading, viz., that when the charterer came to put the cargo on board the vessel, then is the time when it is important for him that the ship shall be seaworthy, and unless that undertaking is positively excluded it must be held to be implied in the contract. I do not propose to read the opinions, but the judgment came very clearly to this, that as in a bill of lading, so in every charter-party, there is an implied undertaking that the vessel at the time of sailing with her cargo shall be seaworthy. And that is very well explained in the unanimous opinion of the Court, that to hold otherwise might defeat the power that a shipper of goods has to make his
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The Court recalled the interlocutor of the Lord Ordinary, sustained the defences, and assoilzied the defenders from the conclusions of the action.
Counsel for the Pursuer— Asher, Q.C.— Salvesen. Agents— Boyd, Jameson, & Kelly, W.S.
Counsel for the Defenders— Balfour, Q.C.— Ure. Agents— Webster, Will, & Ritchie, S.S.C.