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Cite as: [1951] UKHL 4, [1952] AC 292

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JISCBAILII_CASE_TORT

Die Jovis, 29° Novembris 1951

Parliamentary Archives,
HL/PO/JU/4/3/1006

Viscount
Jowitt

Lord

Normand

Lord

Morton of
Henryton

Lord
Tucker

Lord
Asquith
of Bishop-
stone

HOUSE OF LORDS

CARSLOGIE STEAMSHIP COMPANY LIMITED

ROYAL NORWEGIAN GOVERNMENT REPRESENTED BY THE
NORWEGIAN SHIPPING AND TRADE MISSION

29th November, 1951.

Viscount Jowitt

MY LORDS,

The facts which gave rise to the present case may be stated as follows: —

On the 26th November, 1941, the Motor Vessel Heimgar was lying at
anchorage off Oban. She was due to join a convoy to West African ports.
Whilst she was so lying at anchor the Steamship Carslogie collided with her.
It was admitted that the Carslogie was solely to blame for the accident. On
the 27th November the Heimgar was surveyed at her anchorage for the
purpose of ascertaining the nature and extent of damage she had sustained
as a result of the collision ; and this having been ascertained Lloyd's Surveyor
issued a certificate of seaworthiness enabling the ship to go to a repairing
port in the United Kingdom. Accordingly she proceeded to Greenock on
the 28th November and arrived there on the 30th November. Owing to
war restrictions all the work required could not be carried out, and temporary
repairs were effected at Port Glasgow. In the meantime, and before these
temporary repairs had been effected, the representative of the owners of
the Heimgar had arranged with the Ministry of War Transport to send the
vessel to the United States instead of to West Africa. This change of voyage
was made primarily in order that she might go to a port at which permanent
repairs could be effected. It was also considered by the owners desirable to
take the opportunity of her being in dock to inspect her engines which had
been giving some trouble. The port originally suggested was Chester,
Pennsylvania, as it was hoped that a firm at Chester who were very
experienced with Diesel motors might make any necessary adjustments to
the engines. In fact Chester proved impossible and she was allocated to New
York.

On the completion of her temporary repairs she was given a certificate
of seaworthiness authorising her to be continued in her present class with-
out fresh record of survey subject to certain permanent repairs at the owner's
convenience, and to her propeller being renewed at the owner's convenience,
and she was stated to be fit to carry dry and perishable cargoes.

When the vessel sailed for New York after the completion of the temporary
repairs she was in a seaworthy condition, but during her crossing of the
Atlantic she experienced heavy weather and sustained considerable damage
thereby which rendered her unseaworthy. It was therefore necessary for
her to go into dry dock at New York to have this heavy weather damage
repaired apart altogether from the desirability of effecting permanent repairs
in respect of the collision damage. The heavy weather damage was not in
any sense a consequence of the collision, and must be treated as a supervening
event occurring in the course of a normal voyage, during which the Heimgar
was on hire.

She remained in dry dock in New York from the 2nd January to the 1st
March, 1942, being thus off hire for a period of approximately 50 days.
During her time in dry dock the repairs due to the collision, the engine
repairs and the heavy weather repairs were all done concurrently. It was
agreed that ten days out of the 50 should be allocated to the repair of the
collision damage and that 30 days would have been required for the heavy
weather damage.

The question for decision was whether the owners of the Carslogie were
liable to pay, in addition to the cost of the repairs occasioned by the collision,
the loss of chartered hire for ten days, whilst the Heimgar was in dock,
together with certain items in respect of war risk insurance and war bonus.
These three items were considered as all turning on the same principle, and
it was agreed that they succeeded or failed together. The Registrar allowed
the sum claimed by way of damages for detention and allowed the two
remaining items as a necessary consequence of allowing the first item. He
considered that where a collision had taken place in consequence of which
the innocent ship was on her way to the repairers when another casualty
occurred which necessitated immediate repairs, the owner was entitled to
recover damages for detention in respect of the collision repairs from the
owners of the wrong-doing ship. Willmer J. reversed this decision, and the
Court of Appeal (Bucknill L.J., Denning L.J., and Lloyd-Jacob J.), reversed
this decision of the Judge and restored the decision of the Registrar. From
this decision of the Court of Appeal the Appeal is brought to Your Lordships'
House.

For the Appellants it was contended that as a result of the heavy weather
damage which was subsequent to the collision, the owners of the Heimgar
had not suffered any damage by reason of her detention, since during the
whole time that the collision repairs were being undertaken the ship was
undergoing repairs to render her seaworthy, which repairs were necessitated
by heavy weather. It was further contended that as the heavy weather damage
was the only damage which rendered the vessel unseaworthy this must be
regarded as the effective cause of the detention.

For the Respondents it was contended that as the owners of the Heimgar
were entitled to have permanent repairs effected as a consequence of the
collision and had actually and properly decided to send the ship to New
York to have these repairs effected, they had become " necessary ", and it
was argued that her owners were entitled to claim against the owners of
the wrong-doing vessel for damages due to the detention. In support of
this contention they relied upon the rule laid down in the Haversham Grange
([1905] P. p. 307).

My Lords, at the outset I think it is well to bear in mind the elementary
principle that it is for the plaintiff in an action of damages to prove his
case to the satisfaction of the court. He has to show affirmatively that
damages under any particular head have resulted from the wrongful act of
the defendant before he can recover such damages. This principle applies
to maritime collisions as much as it does to collisions on land. Mr. Roscoe
hi the third edition of his book dealing with the Measure of Damages in
Maritime Collisions, at page 10, cites the Marpessa [1907] AC 241 as illus-
trating the proposition that the plaintiffs were only entitled to recover damages
by way of demurrage in respect of such money as the court was reasonably
satisfied had been lost. He points out that the same principle has been laid
down in the United States:

" It is equally well settled, however, that demurrage will only be allowed
"when profits have actually been, or may be reasonably supposed to have
"been, lost, and the amount of such profits is proven with reasonable
"certainty." (The Conqueror (1896) 166 U.S. (S.C.) 110 at p. 125.)
Moreover, it is well established that in considering the damages occasioned
by a wrongful act all those facts which have actually happened down to
the date of the trial must be taken into account. (The Kingsway (1918) P.
per Scrutton L.J. at p. 362.) For this reason it is undoubted that if a
collision took place which would have occasioned a time in dock for repairs
and the ship is sunk before these repairs can be effected, any claim for loss
of time which would have been occupied in such repairs must fail.

Scrutton L.J. in the York ([1929] P. at p. 185) puts other illustrations
showing circumstances which may make it impossible to substantiate a claim
for damages for loss of profitable time. A ship may be detained by ice
so that she could not trade at all, or possibly by an embargo, and other
illustrations can be given.

If I may use the expression of Lord Justice Bucknill, who delivered the
leading judgment in the Court of Appeal, damages are payable for the
detention of a ship because she is a profit-earning machine. If she ceases
to be a profit-earning machine it follows that she can sustain no damage
from being detained until she again becomes capable of earning profit.
In other words, it is not enough to consider whether the ship was detained
by the wrongful act of the Defendant. It is essential to consider whether
damages were caused to the Plaintiff by reason of such detention. So con-
sidered, it will be seen that the problem is not solved by answering the
questions: " Was the ship detained and if so what was the cause of her
" detention? " It is essential to answer the further question: " Assuming that
" she was detained and assuming that she was detained by the wrongful act
" of the Defendant, did the Plaintiffs sustain damages as a result of such
" detention?"

In the present case the ship, having had temporary repairs, was in a
seaworthy condition when she sailed across the Atlantic. It is no doubt the
fact that she was sent on this particular voyage in order that permanent
repairs might be carried out. At the same time it must be noted that the
owners had not entered into any contract to send her for repairs and would
have been free had they been so minded to send her back from New York
without such repairs being effected. I am willing to assume, without deciding
the question, that the collision was a cause of her detention. Still the fact
remains that when she entered the dock at New York she was not a profit-
earning machine by reason of the heavy weather damage which had rendered
her unseaworthy. If there had been no collision she would have been
detained in dock for 30 days to repair this damage. I cannot see that her
owners sustained any damages in the nature of demurrage by reason of the
fact that for ten days out of the 30 she was also undergoing repairs in respect
of the collision.

Willmer J. considered that the repairs to the engines would not have
prejudiced the owners' claim to recover damages for loss of profitable time.
He deals with this question as follows:

" Although the collision repairs were not immediately necessary, the
" owners of the ' Heimgar ' were entitled to have them carried out,
" and if they did so would be entitled to take advantage of the occasion
" to carry out such other repairs of their own as they might think fit.
" The learned Registrar has found, rightly in my judgment, that the
" vessel was diverted to New York for the express purpose of undergoing
" the collision repairs, and it matters not that, as I have found, there
" was a subsidiary purpose of carrying out a machinery overhaul at
" the same time. Had there been no subsequent heavy weather damage
" necessitating immediate repair, it seems to me that in accordance
" with the principles applied by the House of Lords in the Chekiang
" ([1926] Appeal Cases, p. 637) the Plaintiffs would clearly have been
" entitled to recover damages in respect of ten days of the detention,
" notwithstanding the fact that they took advantage of the occasion
" to proceed with their machinery overhaul."

My Lords, I am in complete agreement with this view.

It is well established that if a ship goes into dock for repairs of damage
occasioned by a collision brought about by the fault of another vessel, the
owners of that other vessel must pay for the resulting loss of time, even
although her owners take advantage of her presence in the dock to do some
repairs which, though not necessary, were advisable. Thus, in the case of
The Ruabon Steamship Company. Limited v. The London Assurance ([1900]
A.C. p. 6), the Ruabon suffered damage on the voyage which made it neces-
sary for her to be put into dry dock. The owners (without causing delay or
increase of dock expenses) took advantage of her being in dry dock to have
the survey of the vessel for renewing her classification made, though this
survey was not then due. It was decided that the expenses of getting the
vessel into and out of dock as well as those incurred in the use of the dock

fell upon the Underwriters alone. In the Acanthus ([1902] P. p. 17), whilst
the vessel was in dry dock to repair collision damage for which the defendants
were liable, the owners took advantage of the opportunity to fit her with
bilge keels. It was decided that, notwithstanding this fact, the wrong-doers
were not entitled to any contribution towards the cost of dry docking. In
the Chekiang ([1926] A.C. p. 637) H.M.S. Cairo suffered damage in a collision
for which the owners of the Chekiang were to blame. After being tempo-
rarily repaired, she proceeded to Hong Kong for permanent repairs. The
Admiralty took advantage of her presence in the dock to undertake her
annual refit, though this was not then necessary. It was decided that this
fact did not avail the defendants and could not be prayed in aid by them
in reduction of their liability. Lord Dunedin, at page 642, points out, how-
ever, that if the act of the owner was of necessity, it would have been
otherwise.

These cases support the view that the time occupied in the engine overhaul
which, however desirable it may have been, was not then necessary, could
not have been used to reduce any amount which might have been due from
the owners of the wrong-doing vessel by way of damages for detention ; but
they have no bearing on the effect of the heavy weather repairs which had
made the Heimgar unseaworthy.

The case mainly relied upon by the Respondents as bearing upon this
latter question was the Haversham Grange ([1905] P. p. 307). In that case
the Maureen had suffered two collisions, for the first of which she was held
partly to blame, and for the second of which she was held free of all blame.
Each collision made it necessary that she should go into dry dock. The
two sets of repairs were carried out together: 22 days were taken in repairing
the damage due to the first collision and six days in repairing the damage
due to the second collision, these periods being concurrent and not cumula-
tive and successive. The question arose which of the two wrong-doing
vessels should pay the undoubted damages which the owners of the Maureen
had suffered from the delay to their steamship, and a separate question arose
as to the dock dues which had been incurred.

With regard to the demurrage, Sir Gorell Barnes P. held that as the
Maureen had already been incapacitated by the first collision before the
second collision took place, the repair of the damage done by the second
collision did not in any way delay her, and therefore the second wrong-doer
was not responsible for any part of the damages due to delay. He dealt
with the dock dues upon the same basis. On appeal, the decision of the
President was confirmed with regard to demurrage, but it was decided that
the claim for dock dues ought to be dealt with on a different basis, and it
was decided that the amount due in respect of dock dues should be divided
between the two wrong-doers.

My Lords, I think that there can be no logical distinction between the
claim for damages for delay and for dock dues and, believing as I do, that the
decision as to damages for delay was correct, it follows in my view that the
latter decision in respect of dock dues cannot be supported. I am confirmed
in this view by this further consideration. The Ruabon ([1900] A.C. p. 6) was
a case which was concerned solely with dock expenses. No question as
to damages for delay arose in that case. The Chekiang ([1926] A.C. p. 637)
was a case which was concerned solely with damages for delay. No question
as to dock expenses arose in that case. Yet Lord Dunedin in the latter
case (at p. 641) regards the decision of the House in the Ruabon about dock
expenses as concluding the question in the Chekiang about damages for
delay. This supports the view that in principle the two questions are
indistinguishable.

The case from which I have derived most assistance is the Vitruvia (1925
Session Cases, House of Lords, p. 1). The Vitruvia had been in collision
with the Carperby. For this collision the Carperby was alone to blame. The
damage sustained by the Vitruvia did not render her unseaworthy. She
continued to make voyages and it was not until several months after the
collision that she came to Glasgow to have the collision damage repaired.

When the case first came to the House of Lords the Appellants put forward
an argument founded upon the alleged facts that the Vitruvia, before she
entered the dock to carry out the collision repairs, was in fact unseaworthy,
that the defect rendering her unseaworthy could only be remedied in a
dry dock and that no dry dock was available until after the collision damage
had been repaired. Accordingly they sought to argue that there had been
no damages for delay occasioned by the repair of the collision damage.
As this matter had not been properly pleaded and the relevant facts had
not been found, the House sent the case back for a further ascertainment of
the facts. The further findings established that the Vitruvia was in fact
unseaworthy owing to a small defect which could have been put right in a
few hours ; and that it was not necessary to obtain a dry dock to remedy this
defect. Upon these facts Lord Dunedin (at p. 5) was of the opinion that
the Respondents had not established the defence they sought to make. Had
the facts established that the unseaworthiness of the vessel could not have
been made good until after the collision repairs had been completed it
is plain that he would have decided that the owners of the wrong-doing vessel
would not have been liable for any damages for delay whilst the collision
repairs were being carried out.

Lord Phillimore put the matter in this way: " When this case was before
" your Lordships' House on the last occasion, a formidable point was made
" by the Appellants. They said, ' you must not charge us for the time
" ' spent in repairing the damage caused by the collision, for you lost no,
" ' time by it, because you had to wait for the dry dock into which you could
" ' put your ship in order to repair her propeller'." Lord Phillimore adds,
however, that this case was not proved, for it was not necessary for the owners
of the Vitruvia to wait for a dry dock; they would have been able to do
the work by tipping the ship in wet dock, and accordingly he decided that
the owners of the Vitruvia were entitled to be paid for the loss of profitable
time during which the repairs were being effected.

The case of the Vitruvia is not referred to in the judgments of the Court
of Appeal, though I feel confident that had the Judges considered this case
and the grounds upon which it was decided they would not in the present
case have come to the conclusion to which they in fact came.

A similar question arose in the Hauk (30 Lloyds List Law Reports, p. 32).
In that case the Cameronia had sustained damages in a collision for
which the Hauk was to blame, but her seaworthiness was not affected, and
after temporary repairs she continued her trading. Subsequently she sustained
sea damage to her rudder which rendered her unseaworthy and necessitated
immediate repair. The question arose whether the wrong-doing vessel was
responsible for any loss of profitable time occasioned during the time the
collision repairs were being carried out.

Lord Constable at p. 36 states his view in the following words:

" I think it would be difficult to affirm that the collision was not a
" cause of the detention, though the detention was immediately brought
" about by the accident to the rudder. But the present question does
" not seem to me to depend upon whether in strictness the collision
" or the accident to the rudder was the true cause of the detention.
" Even on the assumption that the repair of the collision damage was
" the true cause, the pursuers must also show that the detention of
" the Cameronia for such repair resulted in a loss of profit, and they
" cannot do so when in fact the Cameronia was by reason of the
" accident to the rudder disabled from earning any profit before she
" was laid up. The loss of profit was not the direct and natural con-
" sequence of the defenders' wrongful act, nor did it represent what
" but for the collision the owners would have earned by the use of
" their ship."

Lord Justice Bucknill in his judgment differentiated this case on the
ground that if the heavy weather damage was done after the collision damage
the rule laid down in the Haversham Grange should apply. My Lords, both
in the Hauk and in the present case the unseaworthiness was caused by an

event which happened after the collision, and I see nothing in the rule laid
down in the Haversham Grange which in any way conflicts with the decision
in the Hauk. That rule, as I have already pointed out, rightly treats the first
wrong-doer who renders the vessel unseaworthy as responsible for the con-
sequent delay, notwithstanding the act of a second wrong-doer who also
rendered the ship unseaworthy; but the rule is addressed to causation, for it
was clear in the Haversham Grange that damages had resulted from the
detention.

In the present case I think that the damage brought about by the collision
did not in the events which happened cause any loss of profitable time to
the owners of the Heimgar because when she entered dry dock she was
not a profit-earning machine.

This is in substance the ground taken by Willmer J. in his judgment when
he says:

" The owners of the Heimgar would have had no use of their ship
" and would have earned nothing by her use, for the simple reason
" that at the time when the collision repairs were executed the ship was
" completely immobilised as the result of damage received in the heavy
" weather encountered during the Atlantic voyage."

My Lords, I agree with this reasoning and accordingly I am in favour
of allowing the appeal and restoring the judgment of Mr. Justice Willmer.

Lord Normand

MY LORDS,

When a Plaintiff claims damages from a tortfeasor for the detention of
a chattel while it is undergoing repairs he undertakes to prove, not only
that the repairs were rendered necessary by the tortious act or negligence
and that the period of detention in respect of which he claims was necessary
for the execution of the repairs, but also that by the deprivation of the use
of the chattel during the detention he suffered pecuniary loss. If the action
is raised and the damages have to be assessed before the repairs are
executed, the Court is perforce dealing with damages which may or may
not arise in the future, and it will require proof of sufficient certainty that
the Plaintiff will suffer measurable damage, making allowance for the chance
that by some subsequent casualty the chattel may be destroyed before the
repairs are executed, or that when the chattel comes to be repaired the
deprivation of its use may involve no pecuniary loss. (The Kingsway
[1918] p. 344.)

In the more usual case, when the damages are assessed after the repairs
have been executed, the Court has before it the facts as they have occurred.
It is no longer dealing with the future but with past history, and in the
assessment proof of the facts displaces estimates of probabilities. This
principle has long been established and has been followed not only in many
claims for collision damage but also in a wide variety of other cases in
which compensation or damages have been assessed. For example, in
Bwllfa and Merthyr Dare Steam Collieries [1903] AC 426 it was applied
to a claim for statutory compensation. In Williamson v. Thorneycroft [1940]
A.E.R. 61 the Court of Appeal applied it when a widow claiming under Lord
Campbell's Act died before the assessment of the damages, and in a recent
case this House held that it has been rightly applied by the Court of Session
where the pursuer in a claim for solatium died before the solatium was
assessed (Kelly v. Glasgow Corporation [1951] S.C. (h.l.) 15).

The facts of the present case, which it is unnecessary for me to narrate
again in detail, show that the " Heimgar ", while seaworthy and able for a
trading voyage after temporary repairs rendered necessary by a collision
with the "Carslogie", suffered weather damage so great that immediate

repairs were necessary before she could continue trading. She entered dry
dock at New York and there three sets of repairs were carried out, the
permanent repairs required to make good the collision damage, the repairs
immediately necessary to make good the heavy weather damage, and repairs
to her auxiliary machinery which were not immediately necessary. These
repairs were carried out concurrently. The " Heimgar " was detained in
dock 50 days in all, but the collision repairs alone would not have detained
her for more than 10 days, whereas the repair of the heavy weather damage
alone would have detained her 30 days. On these facts she was, in conse-
quence of the heavy weather damage, a vessel incapable of gainful use during
the ten days necessary to complete her collision repairs, and no claim against
the " Carslogie " for deprivation of profits in respect of this detention can
be established.

Every case depends on its own facts, but I find the strongest support for
this conclusion in The Vitruvia 1925 S.C. [h.l.] 1. The " Vitruvia " suffered
damage by collision with the " Carperby " for which the " Carperby " was
alone to blame. This damage did not make her unseaworthy or prevent
her from trading. After several months of profitable trading her owners
brought her to Glasgow solely for the purpose of having the collision repairs
carried out. She arrived at Glasgow on 22nd August and the repairs were
completed on 3rd September. Her owners claimed against the " Carperby "
for loss of earnings during these 22 days. On her voyage to Glasgow it
had been noticed that her propeller was making a knocking sound, and after
her arrival the engineer reported that he suspected there was something wrong
with the propeller. On 2nd September a dry dock became available for the
first time since her arrival, and she entered it that day for examination of
her propeller. It was then found that a nut on the propeller was loose and
needed tightening. The repair was completed in a few hours. While this
defect existed it would have been imprudent to send the ship to sea. The
case came before this House on two occasions. On the first occasion the
House allowed parties an opportunity to amend their pleadings so as to
present in clear form the defence that the " Vitruvia " was unseaworthy
during the whole period in respect of which damages were claimed and
accordingly that there was no loss in respect of detention during that period,
and the pursuers' reply that the propeller defect would not have prevented
her from completing her next voyage because it could have been quickly
repaired though no dry dock was available to her. That this House regarded
the defence as relevant is clear, for it remitted the case to the Court of Session
with a direction to allow the proposed amendments and a proof thereof.
As a result of the proof it was found that the propeller defect could have
been repaired in a few hours without dry-docking the ship.

When the case was reported to the House, Lord Dunedin said (1925 S.C.
[H.L.] at p. 5): "If the defenders had been in a position to say, 'your
" ' vessel when it arrived on the 12th was in what is admitted to be a prac-
" ' tically unseaworthy condition ', and if they had been able to go on to
" say, ' it would not have been possible for you to get it into a seaworthy
" ' condition before the time when you went into dry-dock on the 2nd of
" ' September', then they could have added, I think, what always can be
" said by defenders, ' you were bound to use that time in executing the
" ' repairs'. In other words, it would not have been possible for the pur-
" suers to say, ' we will wait until the 2nd of September when we can
" ' put our vessel into dry dock, and then we will do our repairs and charge
" ' you for demurrage during the time we are doing them ' ". Then his Lord-
ship went on to point out that the defenders could not say that, because
the propeller defect could have been remedied and the vessel made sea-
worthy in a very few hours without the use of a dry dock. That case would
have been indistinguishable from the present if dry-docking had been
necessary to make good the propeller defect. On that hypothesis the defence
would have succeeded. A seaworthy ship had been directed in each case
to a repair port. In The Vitruvia the only purpose in sending the ship to
Glasgow was the repair of the collision damage; in the present case the
repair of the collision damage was one and the chief of three purposes in
sending the ship to New York, the other two being to make a voyage on

hire and to carry out repairs to the auxiliary engines. In both cases the
ships suffered on the voyage damage rendering them unfit for another voyage.
In both cases any period of detention necessary for the completion of the
repairs to make the ship seaworthy had, if possible, to be used by her
owners to execute the collision repairs, and from that detention no claim
for loss of profits as part of the collision damage could arise.

The Hauk [1928] S.L.T. 71 is also a case closely resembling the present
case. The " Hauk" had suffered damage in a collision with the
" Cameronia " for which the " Cameronia " was held liable to the extent of
two-thirds. As in the present case, some temporary repairs were carried
out. Then, after a period of trading, she suffered storm damage which
necessitated her being docked at once for repair. The storm damage repairs
and the collision damage repairs were put in hand at the same time, but
the storm damage took longer to repair than the collision damage. The
pursuers claimed a sum in the name of loss of profits during detention.
The Lord Ordinary, Lord Constable, disallowed the claim on the ground
that though the collision damage might be a cause of the detention during
their repair, the pursuers failed to show that the vessel could have earned
any profit in that period. The Lord Ordinary regarded this case as governed
by The Vitruvia, and his judgment is a valuable clarification of the law
of damages in such cases as this.

None of the other cases cited conflicts with the decision of Willmer, J., in
this case, or with The Vitruvia or The Hauk. The decision on demurrage
in the Haversham Grange [19051 P.D. p. 309 is no exception. It is indeed
another example of the general rule that the owner of a chattel who claims
damage for detention from a wrong doer must show that, apart from the
wrongful act of the defendant, the chattel was capable of profitable use during
the period of detention. In The Haversham Grange the " Maureen " was in
collision with the " Caravellas " on 25th December and with the " Haversham
Grange " on 26th December. The owners of the " Caravellas " agreed to a
decree of both to blame, and the owners of the " Haversham Grange"'
admitted sole liability. Each collision caused damage which it was essentially
necessary to repair. The owners of the " Maureen " recovered 50 per cent,
of their loss including loss on account of detention from the owners of the
" Caravellas ", and sought to charge the owners of the " Haversham Grange "
with the remaining half share of demurrage damage. There was also a
claim for dock dues, which I pass over in the meantime. One of the proved
facts was that the repair of the damage done by the " Haversham Grange "
had not increased the period of detention. Sir Gorell Barnes P. held that
as the " Maureen" was already incapacitated by the collision with the
" Caravellas " when she collided with the " Haversham Grange " the claim
against the " Haversham Grange " for loss of earnings during repair failed,
and that decision was affirmed by the Court of Appeal. As in that case
so in this the claim fell to be disallowed because the plaintiffs failed to prove
that the ship could have earned profits during the period of detention caused
by the repairs rendered necessary by the defendants' tort. There has been,
I think, some misunderstanding of the decision in The Haversham Grange.
Thus, in his judgment in The Hauk, Lord Constable seems to over-
emphasise the importance of the fact that the collision with the " Caravellas "
was prior in time to the collision with the " Haversham Grange ". The
emphasis should be on the existing disablement of the " Maureen " when the
" Haversham Grange " collided with her.

I respectfully think that the Court of Appeal in the present case erred in
thinking that the issue could be settled by determining whether there was a
causal connection between the collision damage and the detention of the
" Heimgar" for 10 days. This particularly appears in the judgment of
Denning, L.J. On this point I am in agreement with the Lord Ordinary's
judgment in The Hauk. It is, I think, difficult to say that the collision
damage was not, while it was being made good, a cause of the detention
of the ship. But the real issue is whether in these ten days the vessel was
a potential profit earning vessel or not. Bucknill, L.J., thought that the
fact that the " Heimgar " was re-routed to New York for the express purpose

of having the collision repairs carried out and that it was when she was on
this voyage that she suffered the heavy weather damage, was a material
circumstance which distinguished this case from The Hauk. So, also,
Lloyd-Jacob, J. thought that " the decision to immobilize " the " Heimgar"
for collision repairs was the determining factor. But to make that distinc-
tion a ground of judgment is inconsistent with The Vitruvia, which was
unfortunately not referred to in any of the judgments. Bucknill, L.J., fell
into what I humbly think is the error of supposing that The Haversham
Grange is authority for a rule that liability for detention attaches to a
tortfeasor merely because the damage done by his tort is prior in time to a
subsequent damage, whether caused by a tort or by some other cause.
For example, he says: " I think it is essential to know whether the heavy
" weather damage was received before or after the damage by collision ".
But, with respect, if the fact is that one of two casualties made the vessel
unseaworthy and the other did not. the problem of liability is solved and
the time sequence is irrelevant. In The Haversham Grange the time sequence
was important because the damage suffered by the " Maureen " in each
of the two collisions was enough to make her unseaworthy.

On the view of the case which I have taken it is not necessary to consider
the bearing of the repairs to the auxiliary engines, which occupied 50 days,
on the claim for damages for detention. But I may be allowed to say that
I agree with all that has been said on that point by my noble and learned
friend on the Woolsack.

For the reasons I have given I would allow the appeal.

My Lords, in this appeal the liability for dock dues is not in issue. We
were told that they had been apportioned, and there was no appeal against
that. This is in accordance with the decision of the Court of Appeal in The
Haversham Grange reversing Sir Gorell Barnes. P. In my opinion the
liability for dock dues is the same as the liability for the demurrage, and the
decision in The Haversham Grange on this point is inconsistent with
principle and with a decision of this House. The history of the
matter must be shortly set out. In The Ruabon [1900] AC 6 a vessel
was damaged by a peril insured against and was put into dry dock for
the necessary repairs. The survey of the vessel for renewing her classifi-
cation was not due at that time, but the owners took advantage of her
being in dry dock to have the survey made without increasing the period
of detention. It was held that the liability for the dock dues fell upon
the underwriters alone. It will be observed that that was a case in which
the liabilities of the parties inter se rested upon contract. But in The
Acanthus [1902] P 17, the question of liability, both for dock dues and
for demurrage, between the plaintiff and a tortfeasor was decided by Sir
Francis Jeune by applying the rule laid down in The Ruabon. The facts
were that when the vessel was in dry dock for the repair of collision damage
the owners took advantage of the opportunity to fit bilge keels without
causing increased detention or increase of dock dues. It was held by Sir
Francis Jeune P. that the tortfeasor was liable for the dock dues and for
the demurrage, and he had no distinction between them. The next case
was The Haversham Grange [1905] P 307, which, as I have already indi-
cated, made a radical distinction between liability for dock dues and liability
for demurrage. The last case to which I need refer is The Chekiang
[1926] A.C. 637. In that case the Admiralty took the opportunity of the dock-
ing of H.M.S. " Cairo " for collision repairs to do certain refitment repairs
not immediately necessary. It was held that the owners of the vessel to
blame for the collision were liable in damage for the deprivation of the use
of the vessel for the period of the collision repairs. Lord Dunedin in his
speech said that the question was concluded by The Ruabon and he also
approved of the decision in The Acanthus. Lord Phillimore took the
same view of the case, and said that the decision upon dock dues in The
Haversham Grange might have to be reconsidered. The Haversham Grange
decision is not consistent with the ratio decidendi of The Acanthus and The
Chekiang.

I want only to add that I think that the distinction between liability for
dock dues and liability for detention is in principle unmaintainable. The
present case may be taken as an illustration. As regards detention, the
question is whether the owners of the detained ship suffered a loss of earnings
while she was undergoing the collision repairs. The answer is that they did
not, because during the detention the ship, though not disabled from trading
by the collision damage, was necessarily disabled from trading by the weather
damage. As regards the dock dues, the question is whether any part of
the payment of the dues for the period while the collision repairs were
executed was a loss suffered as part of the collision damages. The answer
is that it was not, because it was a payment incurred in order to carry out
the immediately necessary weather damage repairs. The collision repairs
were therefore executed in the dock when its use was franked by that
necessary payment.

Lord Morton of Henryton

MY LORDS,

The " Heimgar" was detained in New York for repairs for nearly 50
days. At an early stage in the speech of counsel for the Appellants, I asked
whether it was common ground between the parties that, if the collision
between the " Heimgar" and the " Carslogie " had never happened, the
" Heimgar" would have been detained in New York for the same period
of 50 days. The answer was in the affirmative. In the " Argentino " 13
P.D. p. 191 at page 201 Bowen, L.J. observed: "A ship is a thing by the
" use of which money may be ordinarily earned, and the only question
" in case of a collision seems to me to be, what is the use which the ship-
" owner would, but for the accident, have had of his ship, and what (exclud-
" ing the element of uncertain and speculative and special profits) the ship-
" owner, but for the accident, would have earned by the use of her? "
Willmer, J. asked himself that question in the present case and gave this
answer: " The owners of the ' Heimgar' would have had no use of their
" ship, and would have earned nothing by her use, for the simple reason
" that at the time when the collision repairs were executed the ship was com-
" pletely immobilized as the result of damage received in the heavy weather
" encountered during the Atlantic voyage ".

My Lords, I agree with this answer, and if it is the correct answer I can
see no ground upon which the Respondents can recover the damages which
they claim for the detention of their ship. If the " Heimgar " had not
encountered heavy weather on her voyage across the Atlantic, I entertain
no doubt that the Respondents could have recovered damages for her deten-
tion in New York for the period of 10 days which would have been required
to repair the collision damage. In that event they would have lost the use
of their profit-earning chattel for a period of 10 days and the negligence
of the Appellants would have been the cause of that loss; but in the events
which happened the Respondents have failed to prove that any loss of the use
of their profit-earning chattel resulted from the negligence of the Appellants.
On this short ground I would allow the appeal, but as we are differing from
a unanimous judgment of the Court of Appeal, and as Mr. Carpmael sub-
mitted that a decision in favour of the Appellants would involve overruling
The "Haversham Grange" [1905] P 307 I shall first make some observa-
tions on that case and shall then explain briefly why I cannot accept the
reasoning of the Court of Appeal. I shall follow the example of Bucknill,
L.J. in quoting Willmer, J.'s statement of the facts in The " Haversham
" Grange." It is as follows: -

" In The ' Haversham Grange ' ... the Plaintiffs' ship (the ' Maureen ')
" was involved in two collisions, both necessitating immediate repairs.
" Both sets of repairs were executed simultaneously, and the repair of the
" second collision damage did not in any way increase the period of
" detention which would in any case have been required for the repair

" of the first collision damage. In respect of the first collision the
" Plaintiffs' ship and the colliding ship were equally to blame. In respect
" of the second collision the owners of the colliding ship (The ' Haver-
"' sham Grange') admitted liability. The Plaintiffs in due course
" recovered from the owners of the first colliding ship 50 per cent, of
" their claim, including 50 per cent, of the amount lost by reason of
" the detention of their vessel during repair. They then sought to
" recover from the owners of The ' Haversham Grange,' inter alia, the
" remaining 50 per cent, of their claim in respect of the detention of their
" vessel. The learned President, Sir Gorell Barnes, confirming the Report
" of the Registrar, disallowed the claim, holding that, as the vessel was
" already incapacitated by something which had previously happened
" before the second wrong-doing ship ran into her, the repair of the
" damage done by the second collision did not in any way delay her,
" and therefore the second wrong-doer was not responsible for any part
" of the delay, which he had not in fact caused. In the Court of Appeal
" the claim for detention was abandoned, but the learned Master of the
" Rolls, although the matter was no longer before the Court, expressed
" his concurrence with the decision in the Court below."

Thus the decision in The " Haversham Grange " was that the owners of the
" Maureen " could not recover from the owners of The " Haversham Grange "
any part of the loss resulting from the detention of the " Maureen " during
repairs, because no part of that loss resulted from the negligence of that
particular wrong-doer. That decision seems to me to be wholly in accord-
ance with the view which I have formed in the present case.

My Lords, I have noticed references in the judgments under appeal and
in other cases to "the rule laid down in The 'Haversham Grange'." I
confess that I can discover no rule which is laid down in that case. It
seems to me merely an illustration of the elementary principle, already
stated by my noble and learned friend on the Woolsack, that a plaintiff
must " show affirmatively that damages under any particular head have
" resulted from the wrongful act of the defendant, before he can recover
" such damages ". I add that, in agreement with the Opinions which have
just been delivered, I can see no logical reason for the distinction which
was drawn in The " Haversham Grange " between the claim for damages
for detention and the claim for dock dues.

I think that the reason why I differ from the Court of Appeal can best
be explained if I quote three sentences from the judgment of Bucknill, L.J.
whose wide knowledge of these matters leads me to differ from him with
great hesitation. The learned Lord Justice said: —

" When the owners, quite properly, arranged to have their ship sent
" to the United States of America in order that the collision repairs
" might be done, I think that the owners of the wrong-doing ship became
" liable to pay, not only for the prospective cost of the repairs, but
" also for the loss of time thereby incurred. It is true that if the
" 'Heimgar' had been sunk on her way to the United States, the owners
" of the wrong-doing ship would not have been liable to pay for deten-
" tion during the repairs. But the reason for that, as explained in the
" 'Glenfinlas' (1918 P. p. 363) is that the ship having been lost she
" ceased to be a potential money-making machine, and therefore her
" owners did not lose something which did not exist."

With the first of these three sentences I entirely agree, but I would add
that in my view no loss of time was " thereby incurred," because in the
events which happened, the repairs were carried out at a time when the
ship was incapacitated for other reasons. As to the third sentence, I would
respectfully point out that in the present case the ship ceased to be a
potential money-making machine when she became unseaworthy owing to
heavy weather, having been seaworthy when she sailed—see the Lloyd's
surveyor's certificate of seaworthiness dated 4th December, 1941. In these
circumstances I find it difficult to distinguish between the present case and
the position if the " Heimgar " had been sunk on her way to the United
States. In both cases no loss of time would result from the earlier collision.

I agree that this appeal should be allowed with costs.

12
Lord Tucker

MY LORDS,

As I have arrived at a conclusion different from that of the Court of Appeal
I will state very shortly why I have found myself compelled to disagree with
their decision. The gist of Lord Justice Bucknill's judgment is to be found
at page 54 of the Appendix between letters C and F. He here states that
the fundamental difference between the present case and the " Hauk " (30
Lloyds List Law Reports, 32) is that in the latter case the ship was compelled
to repair her rudder and was therefore not a profit earning machine until
that repair had been effected. In that condition the collision repairs were
also done and therefore it is right to say that she would have earned nothing
whilst those collision repairs were being done. Whereas in the present case
the " Heimgar " was proceeding to New York for the express purpose of having
collision damage repaired when she suffered the heavy weather damage, and
it would be contrary to the decision in the " Haversham Grange " to hold
that she could not in any event have earned a profit during the period of
detention by reason of the heavy weather damage.

But, My Lords, both the " Hauk " and the " Heimgar " were rendered
unseaworthy by events which happened after the collision in each case. So
far as the claim for demurrage was concerned in the " Haversham Grange ",
it was rejected not because the collision between the " Maureen " and the
" Haversham Grange " was subsequent to the collision with the " Caravellas ",
but because it turned out that the " Maureen " must have been and in point
of fact was detained the whole time in dock for the repairs which had to
be executed in consequence of the damage done by the " Caravellas " which
had rendered her unseaworthy. It was immaterial that the damage done by
the " Haversham Grange " would also by itself have made the " Maureen "
unseaworthy or that it occurred after the first collision.

It seems to me, therefore, with respect, that the decision of Willmer J. in
the present case was consistent not only with that part of the decision
in the " Haversham Grange " which dealt with the claim for demurrage
but with the other authorities, including in particular the " Vitruvia " (1925)
S.C.I and the " Hauk " (30 Lloyds List Law Reports 32). I agree, however,
with your Lordships in thinking that the other part of the decision of the
Court of Appeal in the " Haversham Grange ", viz., with regard to dock dues
(which is quite immaterial for present purposes) cannot be reconciled with
their decision as to demurrage and should be overruled. Lord Justice
Denning approached the case from the point of view of the Common Law,
but I venture to think that the error underlying his judgment, if I may respect-
fully say so, is that he regards the cause of the detention as equivalent to the
cause of the loss of profit. The distinction is to be found clearly expressed
in the judgment of Lord Constable in the " Hauk " in the passage which has
already been quoted. I am prepared to assume in the present case that the
collision was a cause of the detention, but none the less the detention for
such repair did not result in any loss of profit. It does not represent what
but for the collision the owners would have earned by the use of their ship.

Mr. Justice Lloyd-Jacob treated the time of the decision to immobilise
as the decisive factor, and this also entered into the reasoning of Lord Justice
Bucknill. I do not, however, think that this is consistent with the authorities
in which the unseaworthiness of the vessel at the material time has always
been regarded as decisive.

For these reasons and for those which have been stated by Your Lordships
I agree that this appeal should be allowed.

LORD TUCKER: My noble and learned friend, Lord Asquith of
Bishopstone, who is unable to be present, has asked me to say that he agrees
with the Motion proposed from the Woolsack.

(14112r) Wt. 8025—142 35 12/51 D.L./PA/19