Scottish Court of Session Decisions

The Nautilus Steamship Company, Limited, owners of the s.s. “Poplar Branch,” pursuers, brought an action in the Sheriff Court at Glasgow against David and William Henderson & Company, Limited, ship builders and repairers, Glasgow, defenders, concluding for £3500 in name of damages for the loss caused by a fire on board the s.s. “Poplar Branch,” alleged to have been due to the negligence of the defenders.

Allan White & Company, pursuers, brought a similar action against the same defenders concluding for £165 in name of damages for loss due to injury to a shipment of wire rope belonging to the pursuers and part of the cargo of the s.s. “Poplar Branch,” caused by the fire.

The two actions were conjoined.

The facts of the case so far as they relate to the subject of this report were—The defenders were engaged by the owners of the “Poplar Branch” to do certain repairs upon her, which included the removal of a ventilator from the roof of a deck-house. The ventilator was an open pipe leading down into the ‘tween decks of No. 4 hold. It was about 29 inches in diameter narrowing at the lower end to 23 inches. At the time when the repairs were being executed there was cargo in the ‘tween decks which consisted of soap, water-closets, sanitary basins in straw cases, which were on the top, and cement; wire coils were also being loaded. The owners of the vessel gave instructions for the removal of the ventilator, and as the alterations were urgent suggested that the defenders should use an oxy-acetylene burner to cut away the metal. Such a burner when in operation caused small pieces of molten metal and sparks to fly off from the metal being cut. Some of those dropped down the ventilator in question while it was being removed and set fire to the cargo in the ‘tween decks, which was specially inflammable owing to the straw packing. The ventilator could have been but was not plugged up. If it had been plugged up the fire would not have been caused. The defenders were aware that molten metal and sparks were given off when such a burner was used; the pursuers were not. The pursuers did not warn the defenders that the cargo below the ventilator was of an inflammable nature, and the defenders did not warn the pursuers of the risks attending the use of the burner. The ship's officers and crew were on board while the operation of removing the ventilator was in progress, but they did not know the range within which the debris from the burner was dangerous or that any debris was dropping down the ventilator shaft.

The defenders pleaded—“1. The pursuers' statements being irrelevant and insufficient to support the prayer of the petition, should not be admitted to probation. 2. The pursuers are barred by mora, taciturnity, and acquiescence from insisting upon their claim. 3. The fire in question not having arisen from any cause for which the defenders are responsible, they are entitled to be assoilzied with expenses. 4. Separatim—The pursuers having requested the use of the burning machine, and having failed to warn the defenders of any risk or damage likely to arise therefrom, are barred from suing the present action. 5. In any event the sum sued for is excessive.”

A proof was allowed in both actions, and the parties by joint minute in both actions agreed to limit “the proof in the first

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instance to the question of liability, the amount of the damages, if any, to be determined at a later date.”

On 6th November 1918 the Sheriff-Substitute ( Fyfe) pronounced the following interlocutor” Finds in the conjoined process (1) That pursuers the Nautilus Steamship Company, Limited, are the owners of the steamship ‘Poplar Branch’ of Sunderland; (2) That in February 1916 the ‘Poplar Branch’ was being loaded with a general cargo for west coast of South America ports; (3) That part of the cargo was steel wire rope shipped by the pursuers Allan White & Company; (4) That on 7th February 1916, whilst the ‘Poplar Branch’ was lying in Queen's Dock, Glasgow, a fire occurred, whereby certain damage was occasioned to the ship and the said cargo; (5) That pursuers both allege that the fire was caused by negligence on the part of defenders' workmen, who were executing certain repair work on deck, including the cutting away of a ventilator; and pursuers The Nautilus Steamship Company, claim from defenders £1500 in respect of damage to the ship; and pursuers Allan White & Company claim £165 in respect of damage to their cargo; (6) That pursuers have failed to prove that defenders are liable for said damages: Finds in law that pursuers having failed to prove that they have suffered loss and damage owing to defenders' fault, the defenders are entitled to absolvitor: Therefore assoilzies the defenders from the conclusions of both actions.”

Note—“1. The leading action in this conjoined process is [that] in which the Nautilus Steamship Company lay their claim at £3500, but by minute of restriction that claim has been reduced to £1500. In the other action Allan White & Company claim £160. But we are not here concerned with the figures, parties having agreed that the question of liability be first determined. The only present issue accordingly is—Are defenders liable to recoup pursuers for loss they may have sustained in consequence of the fire?

2. Both claims are laid upon artificer's delict, which infers that the artificer owed a duty to the pursuers and was under obligation to protect their property. The case attempted to be made out is, I think, one coming within the principle of the Bute Dock case relied upon by pursuers—‘ The Lancastrian’ ( 1916, 32 T.L.R. 655)—where the Court of Appeal held liable for damages sustained by a ship in dry dock the dock owners who had received the ship into their dock but had failed to provide blocks sufficient to hold her upright, with the result that she heeled over and sustained damage. The ground of that judgment I take to have been that the dock owners had taken the ‘Lancastrian’ into their possession for the time being, and that their obligation was to keep her safe whilst she was in their graving dock.

3. That kind of case might perhaps have been conceivable against the present defenders had they taken the ‘Poplar Branch’ for the time being into their own dock, to execute repairs upon her, but the defenders never took the ‘Poplar Branch’ out of the custody of her owners. They had not possession of the ship in any sense any more than a man who is fitting a lock on a house door has possession of the house. The defenders were simply doing a job on the ship's deck whilst she lay in one of the public docks of the Glasgow harbour. Stevedore's men were at the same time stowing cargo in her holds, and other men than defenders' men were going about the ship. The present case does not appear to me to be ruled by the Bute Dock case, which dealt with the obligation of the custodier of another person's property; to take due care of that property whilst in his custody.

4. Nor do I think the present case is ruled by that other class of case founded on by pursuers, where shipowners have been held liable for damage to cargo, as for instance Hayn Roman & Company v. Culliford ( 1879, 4 Com. Pleas Div. 182), where shipowners were held liable for damage sustained by sugar coming in contact with a mischievous subject stowed too near to it. The principle of such cases is that the shipowner who receives a general cargo accepts the obligation to so stow it that one parcel will not take damage from contact with another parcel. The shippers of the various parcels have no control over the stowage, and the shipowner's obligation to each shipper is to take due care of his consignment. But the defenders here had no such obligation, and to apply to the present case the principle of a shipowner's liability for defective storage of cargo seems to me altogether too far fetched.

5. The fact is that there is no reported case which is of any assistance in disposing of the present case—at all events I have not after careful search been able to find any authority which is helpful. The present case accordingly seems to me to fall to be determined by a reasonable application of the general principle that any person who is executing work which may create danger to adjacent persons or property should go about his work with due regard to the possibilities of the danger.

6. But what precautions the person so executing work may reasonably be expected to take depends of course upon the knowledge he may reasonably be expected to have of the possible danger. The defenders' attention was not called to the possibilty of danger arising from the work they were doing. They were performing what admittedly was a recognised operation when work is wanted to be expeditiously done; it was on the suggestion of the shipowners' representative, who was present, and because he was anxious to expedite the work, that the use of the oxy-acetylene flame was resorted to; the ship's officers and superintendent were looking on; and nobody seems to have indicated to the defenders' workmen that there was inflammable material in the ‘tween decks below. It is argued that the defenders ought to have known, and did know, first, that the ventilator shaft went down to the ‘tween decks, and second, that inflammable material was there, but I do not think that the proof establishes either of these assumptions,

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upon which the liability of defenders is based. The work defenders' men were doing did not necessitate their inquiring what was below the ventilator—but the ship's officers knew; and if they knew of the danger they should have pointed it out to defenders' men. Indeed, I doubt if defenders had any duty at all. It was for the ship's officers to take any necessary precautions to protect the ship and cargo if they thought there was danger. The charge against defenders' men practically is that of reckless behaviour, regardless of danger to other people's property. It is all very well for the surveyors now, after the event, to say that the ventilator should have been plugged, but none of those whose business it was to look after the safety of the ship and her cargo seem to have thought of that at the time, or to have suggested to defenders or themselves to have adopted any precautions. I do not think that liability has been established against defenders, even upon the assumption that sparks of molten metal going down the ventilator aperture originated the fire.

7. If I am right in this view, it is not, of course, necessary to consider the other question, Whether, in point of fact, a cause-and-effect relationship has been established between the operations of defenders' workmen and the occurrence of the fire? If it had been necessary to decide this I should doubt very much indeed whether the proof is sufficient. It is very largely conjecture and inference, and the possibilities of other explanations of the occurrence of the fire are not excluded. It would be a very serious matter indeed for a ship repairer, or any other repair tradesman, who is brought on board a ship, or into a factory, or a private building, where other people are going about, for the purpose of doing a single job, in the recognised manner of doing that job, at one spot on the ship's deck, or in the building, if, because a fire happens to occur whilst he is at this job, in some other part of the ship or the building which he has never seen, it were to be inferred that because his job had a certain possible danger, and because no other ostensible cause presents itself, the possible danger of his job became a certain danger and caused the outbreak of fire. The occurrence of a fire is just the kind of occurrence which frequently baffles inquiry as to its origin, and I think we should want evidence very much more direct than we have in this case to warrant the assumption that the fire on the ‘Poplar Branch’ was caused by defenders' delict.

8. My opinion upon the whole case is that the proof does not come up to the standard required in a claim of damages founded upon delict, and that defenders are entitled to absolvitor.

9. As this is not, technically perhaps, a final interlocutor' I have granted leave to appeal.”

Pursuers appealed, and argued—The fire was caused by the sparks and molten metal falling down the ventilator. In the circumstances there was negligence on the part of the defenders in their way of using the burner. They knew that the burner caused sparks and molten metal to fly about, and consequently that the burner was dangerous if there was inflammable material within a certain distance. They knew what the dangerous zone was. In these circumstances they should have plugged up the ventilator, or, if they did not, made sure that there was not inflammable material below it. They took none of these precautions, and must be held to have proceeded with the work at their own risk. No negligence on the part of the pursuers had been proved. Ellerman Line, Limited v. H. & G. Grayson, Limited, 1919, 35 T.L.R. 492, per Duke, L.J., at p. 496. covered the present case. The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), First Schedule, rule 82, and Little v. Stevenson & Company, 1896, 23 R. (H.L.) 12, 33 S.L.R. 514, were referred to with regard to the form of the Sheriff-Substitute's interlocutor.

Argued for the defenders—There was no negligence on the part of the defenders. The pursuers who owned the ship retained control of her, and they requested the use of the burner, knew the risks it involved, and the inflammable nature of the cargo below the ventilator. The defenders had no knowledge of the inflammable nature of the cargo. In those circumstances there was a duty on the part of the pursuers to warn the defenders, and they had not done so. The Ellerman Line case was distinguished, for there the cargo was visible, and the shipowners had warned the repairers of the danger. But if the defenders were negligent, negligence of the pursuers had supervened upon their negligence, and without the latter the accident would have been avoided, for the burner had been in operation for a considerable time before the fire occurred in full view of the ship's servants, and they had given no warning. The pursuers, the shipowners, therefore could not recover damages— Radley v. London and North-Western Railway Company, [1876] 1 A.C.754. “ The Bernina,” (1887) L.R. 12, P.D. 36 and 58, was referred to. Further, the ship's servants were really the servants of the cargo owners, who could not for that reason recover damages. The Ellerman Line case was distinguished.