Scottish Court of Session Decisions

R. B. Ballantyne & Company, owners of the s.s. “Bessie Barr,” pursuers, raised an action in the Sheriff Court at Glasgow against Paton & Hendry, shipowners there, defenders, concluding for payment of £270 in respect of damage sustained by the “Bessie Barr.”

By charter-party dated 30th March 1909, under which the pursuers chartered the “Bessie Barr” to the defenders to carry a cargo of stones from Portland to Glasgow, it was provided, inter alia—“12. Cargo to be loaded, stowed, and discharged free of expense to steamer, with use of steamer's winch and winchmen if required.”

A cargo of stones was duly carried from Portland to Glasgow, where in the course of discharge damage was sustained by the vessel, by the falling of a large stone as it was being taken out of the hold.

The pursuers averred—“(Cond. 1) It was provided (by the charter-party) that the cargo was to be loaded, stowed, and discharged by the charterers, and free of expense to the steamer. (Cond. 3) The defenders, in carrying out the terms of the charter-party by themselves or others for whom they are responsible, employed and paid the stevedores and owners of the crane engaged in the discharge of the vessel, and they are liable for the fault of persons employed in doing such work. (Cond. 4) Said accident was due to the fault and / or negligence of those discharging the said vessel, for whom the defenders are responsible under said charter-party, in not taking precautions to see that the said stone when in course of being hoisted was kept clear of the combings, and further, that the hoisting was carried out cautiously, so that, if there was the risk of the stone catching on the combings, same should have been released and hoisting stopped before the chain had been broken.

The defenders averred—“(Ans. 1) … By the said charter-party it is provided that the loading, stowing, and discharging is to be done by the pursuers, but free of expense to the steamer.”

The pursuers pleaded, inter alia—“(1) The defenders having undertaken by the terms of said charter of pursuers' vessel to discharge the cargo carried, and same having been done in such negligent manner as to cause the loss and damage claimed by the pursuers, decree should be granted therefor with interest and expenses, as craved.”

The defenders pleaded, inter alia—“(1) The action is irrelevant.”

Page: 184↓

On 11th November 1910 the Sheriff-Substitute ( Fyfe) sustained the defenders' first plea-in-law and dismissed the action.

Note.—“The case, as laid by the pursuers, is that, under the charter-party founded on, the defenders had relieved the ship and themselves accepted liability for all occurrences in any way arising out of the discharge of the s.s. ‘Bessie Barr,’ or in other words, that the charterers had insured the ship against structural damage which might occur in the course of the discharge. I do not think this proposition is sound.

There is, I think, no doubt about the general maritime law, that the work of loading and discharging falls within the ship's duty unless there is some special contract to the contrary. All the operations connected with the loading and discharging are ship's operations, whether these are actually conducted (as in theory, perhaps, these operations always are) by the ship's crew, and with the ship's appliances, or (as in practice they generally are) conducted by stevedores with the aid of appliances outside the ship.

The mere fact that some other person is to relieve the ship of the expense connected with the discharge of some duty of the ship does not affect the legal situation at all ( Maciver v. Tate, 1903, 1 K.B. 362).

The charter-party founded on in this case is an ordinary voyage charter, and there is nothing in it which saddles the charterers with liability for occurrences which might happen in the course of the discharge. The pursuers' paraphrase of the charter-party (condescendence 1) is ‘that the cargo was to be loaded, stowed, and discharged by the charterers.’ But the charter-party itself does not say so. What it does say (clause 12) is ‘cargo to be loaded, stowed, and discharged free of expense to steamer, with use of steamer's winch and winchmen if required.’ This clause deals only with expense, and it means no more than that the charterers are to bear, inter alia, the expense attending the discharge. It does not affect the legal position at all. The shipowner may have a claim against somebody, but in my opinion he has stated no relevant claim against the charterers.”

The pursuers appealed to the Sheriff ( Millar), who on 15th February 1911 adhered.

Note.—“The ordinary rule of law is that the shipowner is bound to deliver the goods from the side of his ship. In the charter-party which has been produced the parties have embodied this rule into the written contract. In article 4 it is said that the ‘cargo to be brought to and taken from alongside free of expense.’ Article 12 seems rather to be a method of settling the charges which were to be paid by the charterers to the shipowners, and does not affect this condition. Accordingly I agree with the learned Sheriff-Substitute in his interpretation of the contract. But the agent for the appellants referred to article 3 of the condescendence. That article seems to me to be too vague to support the pursuers' position. It is not said how the defenders came to accept the responsibility of discharging the goods from the vessel itself, contrary to the terms of the written contract in the charter-party. The appellants' agent referred to the terms of the answer 1, but it seems to me that in considering the question of the relevancy of the action regard should only be taken of the averments in the condescendence itself. However, even if notice is taken of the averment in that answer, it does not seem to me to carry the pursuers very far, as there is no explanation of the circumstances under which the receivers undertook the responsibility of discharging the goods from the ship. I think, therefore, the pursuers' case is irrelevant, and that the learned Sheriff-Substitute's judgment should be affirmed.”

The pursuers appealed and at the hearing moved for leave to amend the record by deleting from condescendence 4 the words “under said charter-party,” and by substituting in their first plea, for the words “by the terms of said charter of pursuers' vessel” the words “as condescended on.”

Argued for the pursuers (appellants)—(1) The natural meaning of clause 12 of the charter-party was that the liability for the discharge of the vessel was transferred from the pursuers, on whom it admittedly lay at common law, to the respondents. The last words of the clause providing for the use of the steamer's winch and winchmen if required, could not otherwise have any meaning, for the pursuers did not require to contract for the use of their own winch. (2) But whatever was the meaning of the charter-party, the record as amended relevantly averred that the defenders had in fact undertaken the discharge and carried it out by stevedores employed and paid by them. They had thus the control of the parties whose negligence caused the damage, and that was enough to subject them in liability— Rourke v. White Moss Colliery Company, 1877, 2 C.P.D. 205; Donovan v. Laing. Wharton, and Down Construction Syndicate, Limited, 1893, 1 Q.B. 629; Cairns v Clyde Trustees, June 17, 1898, 25 R. 1021.35 S.L.R. 808; Harris v. Best, Riley, & Company, 1892, 7 Asp. Mar. Cas. 272.

Argued for the defenders (respondents)—(1) The liability for the discharge lay at common law on the pursuers, and no contract involving a transfer of that liability to the defenders could be extracted from clause 12 of the charter-party. The meaning of that clause was simply that while the pursuers remained responsible for the discharge they were to be repaid the expense thereof by the defenders, who were not, however, to be charged anything for the use of the steamer's winch or winch-men. The clause therefore dealt only with the expense and did not affect the common law liability for the discharge— M'lver & Company Limited v. Tate Steamers, Limited, 1903, 1 K.B. 362. If the clause was susceptible of two constructions, that would be preferred which was consistent with the common

Page: 185↓

law. There was therefore no relevant case founded on the charter-party. (2) Nor was the case attempted to be made independently of the charter-party relevant even with the amendment proposed. It was merely averred that the defenders employed and paid the stevedores, &c., but that did not give them control of the discharge—Carver, Carriage at Sea (5th ed.), secs. 273–4—which alone could involve them in liability— Quarman v. Burnett, 1848, 6 M. & W. 499; Blakie v. Stembridge, 1859, 6 C.B. (N.S.) 894.