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8/3/2019 The Makedonia
1/33
[1962] Vol. 1 Lloyd's Rep. 316
ADMIRALTY DIVISION
Feb. 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, Mar.
7, 1962
____________________
THE "MAKEDONIA"
Before Mr. Justice HEWSON
Unseaworthiness-Inefficiency of crew-Right of under-deck and/or
on-deck cargo-owners to recover their share of salvage award from
shipowners-Liability of such cargo-owners to make general average
contribution-Liability of shipowners for cargo jettisoned or burned
- Canadian Water Carriage of Goods Act, 1936, Art. III (1).
Carriage of plaintiffs' timber in defendants' steamship Makedonia
from Western Canadian ports to U.K., under bills of lading
incorporating Canadian Water Carriage of Goods Act, 1936 - Bills of
lading providing that general average should be paid under
York/Antwerp Rules, 1950, and that English law should governcontracts - Clause 6 of bills of lading provided:
. . . received, kept, carried and discharged at the sole risk of the
owner of such cargo and the Carrier shall not under any
circumstances of any kind whatsoever be liable for any loss of or
damage or delay thereto, whether or not such loss, damage or delay
may be due to the act, neglect or default of the Carrier or the master,
pilot, officers, crew, stevedores . . . or other person whomsoever for
whom the Carrier may be responsible, whether in the service of the
Carrier or not, and whether or not the above-named vessel or any
other vessel or craft in which the said cargo may be loaded was
unseaworthy at the time of loading or sailing or at any other time.
Makedonia unable to continue voyage under her own power when in
mid-Atlantic owing to contamination of fuel oil and lack of feed
water-Salvage services (towage) received - Some deck cargo
jettisoned; some deck and under-deck cargo burned to provide steamfor auxiliaries during towage; port of refuge expenses incurred; and
salvage award under Lloyd's Form of Salvage Agreement of 44,000-
Claim against shipowners by plaintiffs in first action to recover their
share of salvage award; and for declaration that they were not liable to
make general average contribution - Similar claims against shipowners
by plaintiffs in second action, and for loss of their cargo
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Adm. The "Makedonia"
by jettisoning and/or burning-Counterclaim by shipowners, in second
action, for declaration that they were entitled to recover general
average contribution from those plaintiffs-Contention by plaintiffs
that, under Art. III (1), if vessel was unseaworthy on leaving
bunkering port owing to defective bunkers or contamination of fueloil, shipowners were responsible for lack of due diligence on part of
ship's engineers at beginning of that stage and were precluded from
exemptions in Art. IV (2) - Meaning of "voyage" in Art. III (1)-
Evidence as to inefficiency of ship's engineers; and as to
contamination of fuel oil by sea water during voyage.
-Held, (1) (a) that, under Art. III (1), the obligation on shipowners was
to exercise due diligence before and at beginning of sailing from
loading port to have vessel adequately bunkered for first stage and to
arrange for adequate bunkers at intermediate ports so that voyage
could be performed; that that obligation as to bunkering included
provision of feed water; and that shipowners performed that
obligation; (b) that the equipment and machinery were satisfactory;
and that immediate cause of breakdown was lack of burnable fuel oil
owing to inefficiency of ship's engineers; and (c) that that breakdown
caused all loss sustained by plaintiffs; (2) (a) that shipowners had
failed to prove that they had exercised proper care in appointment ofship's engineers; (b) that ship's engineers were inefficient at
commencement of voyage; and (c) that shipowners had failed to
exercise due diligence before and at beginning of voyage properly to
man their vessel; (3) thatMakedonia was unseaworthy in that she was
improperly manned and shipowners had failed to provide a plan of
ballast and fuel system; that salvage, burning of cargo and port of
refuge expenses were all occasioned by this unseaworthiness; and that
shipowners were in default; (5) that shipowners were not obliged to
save the cargo from physical loss because they were not liable for it
(Clause 6), but, having done so, they were entitled to expect plaintiffs
to pay their contribution towards general average, salvage and port of
refuge expenses - Judgment for plaintiffs in first action and plaintiff
owners of under-deck cargo in second action; judgment for
shipowners against plaintiff owners of deck cargo in second action.
____________________
The following cases were referred to:
Anonity, [1961] 1 Lloyd's Rep. 203;
Arabert (No. 2) (Limitation), [1961] 1 Lloyd's Rep. 363; [1961] 3
W.L.R. 215;
Cairnbahn, [1914] P. 25;
Carron Park, (1890) 15 P. 203;
Gosse Millerd, Ltd. v. Canadian Government Merchant Marine,
Ltd., [1929] A.C. 223; (1928) 32 Ll.L.Rep. 91;
Harris (Harella), Ltd. v. Continental Express, Ltd., and BurnTransit, Ltd., [1961] 1 Lloyd's Rep. 251;
Hongkong Fir, [1961] 1 Lloyd's Rep. 159;
Milburn & Co. v. Jamaican Fruit Importing and Trading
Company of London, [1900] 2 Q.B. 540;
Moore and Another v. Lunn and Others, (1922) 11 Ll.L.Rep. 86;
Muncaster Castle, [1959] 2 Lloyd's Rep. 553;
Norman, [1960] 1 Lloyd's Rep. 1;
Northumbrian Shipping Company, Ltd. v. E. Timm & Son, Ltd.,
[1939] A.C. 397; (1939) 64 Ll.L.Rep. 33;
Standard Oil Company of New York v. Clan Line Steamers, Ltd.,
[1924] A.C. 100; (1923) 17 Ll.L.Rep. 120;
Tempus Shipping Company, Ltd. v. Louis Dreyfus & Co., Ltd.,
[1930] 1 K.B. 699; (1930) 36 Ll.L.Rep. 159; [1931] 1 K.B. 195;
(1930) 37 Ll.L.Rep. 273; [1931] A.C. 726; (1931) 40 Ll.L.Rep.
217;Vortigern, [1899] P. 140.
____________________
In this consolidated action, the plaintiff owners of cargo lately
laden on board the steamship Makedonia, sued her owners for
damages for breach of contract and/or duty in the loading,
handling, custody, care and discharge of the plaintiffs' cargo in
the defendants' vessel in 1956.
TheMakedonia broke down in mid-Atlantic on a voyage from
Vancouver to the United Kingdom with a cargo of lumber. She
had to be towed to the Azores. The first action was brought by
the owners of seven parcels of timber shipped under deck,
under seven bills of lading. In the second action, 46 cargo
owners with 191 parcels, shipped under 191 bills of lading, both
on deck and under deck, made similar claims.
The plaintiffs claimed as damages, their share of a salvage
award, interest and costs; a declaration that they were not liable
to contribute in general average, and the cancellation of
guarantees given on behalf of the plaintiffs by way of general
average security.
Certain of the plaintiffs in the second action also claimed for
loss of cargo by jettison or burning. A further claim by them,
arising out of damage to cargo by oil or water, was settled.
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Adm. The "Makedonia"
The plaintiffs alleged that the breakdown was due to the
defendants' failure to provide a seaworthy ship (particularly in
that the officers were incompetent), and asked the Court to
decide liability, the question of the amount of damages, ifnecessary, to be referred to the Admiralty Registrar.
The defendants, while admitting that the plaintiffs had a good
title to sue, and that salvage services were rendered to the ship
and cargo, denied liability and counterclaimed for a declaration
that they were entitled to recover general average contribution
from the plaintiffs.
According to the statement of claim of the plaintiffs in the first
action, under seven bills of lading dated in Vancouver in
January, 1956, and signed by the master or agent of the
defendants' steamship Makedonia, there were shipped in good
order and condition on board the vessel for carriage to London,
a quantity of Douglas Fir lumber, the property of the plaintiffs.
It was expressly provided by Clause 1 of the conditions
printed on the reverse of the bills of lading that the bills oflading should have effect subject to the provisions of the Water
Carriage of Goods Act, 1936, of the Dominion of Canada and
that that Act should be deemed to be incorporated therein.
Art. III (1) of the Rules contained in the Schedule to the Act
provided that the carrier should be bound before and at the
beginning of the voyage to exercise due diligence to make the
vessel seaworthy and properly to man, equip and supply the
vessel, and Art. IV (1) of the Rules provided that whenever loss
or damage had resulted from unseaworthiness the burden of
proving the exercise of due diligence should be on the carrier.
Those plaintiffs said that, on the true construction of the Rules,
the defendants were further bound to exercise due diligence to
make theMakedonia seaworthy and properly to man, equip and
supply her before and at the beginning of each bunkering stageof the voyage, or, alternatively, that the defendants impliedly
warranted that before and at the beginning of each bunkering
stage they would exercise due diligence to make the Makedonia
seaworthy and properly to man, equip and supply her for that
stage.
Those plaintiffs alleged that, on leaving the ports of shipment
named in the bills of lading, theMakedonia was unseaworthy in
the following respects:
(a) There was a crack in the main condenser. Alternatively themain condenser was liable to develop a crack and developed a
crack during the voyage.
(b) A great number of the condenser pipes leaked or were
liable to leak.
(c) The evaporator leaked or was liable to leak.
(d) Owing to steam wasting from the main engine packings a
consumption of over 20 tons of feed water was required per
day.
(e) The metallic packing for the I.P. valve spindle required
replacing.
(f) The diameter of the spindle rod which was originally 4 in.
was worn down to 358 in.
(g) The boilers required internal washing and/or chipping.(h) The piping of and between double bottom tanks Nos. 1, 2
and 3 and of and between double bottom tanks Nos. 7 and 8
leaked by reason of which ballast carried in any one of these
tanks Nos. 1, 2 or 3 was able to find its way into fuel oil carried
in any other of these tanks and ballast carried in tank No. 8 was
able to find its way into fuel oil carried in tank No. 7 (port).
(i) The oil fuel feed pumps, transfer pump, feed pumps and
ballast pumps were defective, with the result that on and after
Feb. 11, 1956, ballast could not be pumped out of double
bottom tank No. 4; on and after Feb. 13, 1956, fuel oil could not
be pumped direct from double bottom tank No. 1; on and after
Mar. 1, 1956, fuel oil could not be pumped from double bottom
tank No. 7 starboard and, at San Pedro and/or Balboa, No. 2
double bottom tank could not be fully pumped out before oilwas pumped into the tank. Alternatively, the trim of the vessel
was such as to render it impossible or difficult to work the
pumps.
(ia) The heating coils passed through the lightening holes of
the tank floors and were ineffective when the oil dropped below
that level. The heating coil in No. 1 double bottom tank was
ineffective to enable the oil in that tank to be pumped direct
from the time of the vessel's departure from Vancouver until the
oil in that tank was transferred to No. 3 double bottom tank
between Feb. 13 and 27, 1956.
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Adm. The "Makedonia"
(ib) Certain valves were not clearly marked so that it was
possible for an engineer accidentally to open a steaming out
valve when he intended to open a heating coil valve.
(j) There was insufficient fresh water to feed the boilersbeyond Feb. 25, 1956, when theMakedonia was in the Atlantic
Ocean in an approximate position of lat. 29 32 N., long. 49 10
W.
(k) The vessel had insufficient fuel oil to carry her to London.
(l) The quantity of anchor cable had been reduced by reason of
a previous casualty to six shackles on each anchor.
(m) Deck cargo was so stowed as to cause the Makedonia to
list up to 13 deg. to port and up to 10 deg. to starboard, and, on
Feb. 6 and/or 22 and/or 24, 1956, to necessitate the filling up of
No. 1 and/or No. 2 double bottom tanks with ballast for the
stability and safety of the vessel notwithstanding that at the time
of such filling one or both of the tanks still contained some
quantity of fuel oil. The vessel was at all times on the voyage so
tender that whenever one of her double bottom tanks was emptyof fuel oil it had to be filled with ballast thereby leading to risk
of contamination of fuel oil pumped in at later bunkering ports
or transferred from other double bottom tanks.
Those plaintiffs alleged, alternatively, that theMakedonia was
not properly manned in that the chief engineer and/or the other
engineers were so incompetent and/or inexperienced and/or
lacking in knowledge of the vessel's pumping and piping
system as to be unable to secure that when the vessel was
carrying ballast water in some of her double bottom tanks and
fuel oil in others the water and oil did not become intermingled,
or to ascertain in time to remedy the situation that the vessel's
fuel oil was or was becoming unburnable.
Those plaintiffs also alleged that, on leaving Balboa, at which
port theMakedonia called on Feb. 11, 1956, for the purpose ofbunkering, she was unseaworthy and/or not properly equipped
or supplied in that:
(a) There was an insufficient quantity of sound fuel oil to
enable her to reach London.
(b) The fuel oil contained in one or more of double bottom
tanks Nos. 1, 2 and 3 was mixed with such a quantity of salt
water as to be unburnable.
(c) There was insufficient fresh water to feed the boilers
beyond Feb. 25, 1956.
By reason of the unseaworthiness alleged above, on and after
Feb. 17, 1956, theMakedonia had difficulty in raising sufficientsteam to proceed, and, on Mar. 1, 1956, finally broke down and
became disabled owing to lack of steam in the Atlantic Ocean
in an approximate position about 870 miles from Ponta Delgada
which was the nearest port. By reason of unseaworthiness
owing to her list, and the fact that she was tender her situation
in the North Atlantic in winter was rendered even more perilous
than it would otherwise have been.
Owing to the vessel's disablement it was necessary for her to
accept salvage services. By reason of her unseaworthiness
owing to her having reduced her anchor cable, it was not
possible for the Makedonia to be towed by a sister ship, the
North Queen, which reached her on Mar. 3, 1956, with the
result that it was necessary to accept the services of the Agios
Georgios Vwhich reached theMakedonia on Mar. 5, 1956, andproceeded to tow her to Ponta Delgada.
The plaintiffs said that it was necessary (a) in order to raise
steam in an attempt to transfer sufficient chain from the port
anchor to the starboard anchor to enable the North Queen to
take the Makedonia in tow, to jettison about 65 standards of
timber from the latter vessel's deck cargo, and (b) in order to
raise steam for her steering and generator, to burn a quantity of
her deck cargo. None of those plaintiffs' cargo was jettisoned or
burnt.
Accordingly, those plaintiffs' cargo became liable for salvage
charges and costs whereby the plaintiffs suffered loss and
damage.
On the arrival of the Makedonia in London, the defendants
refused to release the plaintiffs' cargo without a general averagedeposit or a guarantee of payment of any contribution to general
average which might be found due in respect of the cargo.
Accordingly, on Mar. 22, 1956, a guarantee of such payment
was given by or on behalf of the plaintiffs in order to obtain the
release of the cargo, whereby the plaintiffs incurred expense
and suffered loss and damage.
Those plaintiffs claimed:
(1) Judgment against the defendants and their bail for damages
for breach of contract together with interest and costs.
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Adm. The "Makedonia"
(2) A reference, if necessary, to the Admiralty Registrar to
assess the amount of such damages.
(3) A declaration that the plaintiffs were not liable to
contribute any sum in respect of general average.(4) Cancellation of the guarantee given on Mar. 22, 1956.
In their amended further and better particulars of the statement
of claim those plaintiffs said that No. 1 double bottom tank
carried fuel oil from the time of the vessel's departure from
Vancouver until after her departure from Balboa when at some
time between about Feb. 13 and 27, 1956, this was transferred
to No. 3 double bottom tank and No. 1 double bottom tank was
then ballasted.
No. 2 double bottom tank contained first fuel oil and then
ballast during the voyage from Vancouver to San Pedro. At San
Pedro, fuel oil was pumped into the tank notwithstanding that
the ballast had not been completely pumped out. Some oil was
used from this tank on departure from San Pedro until about
Feb. 6, 1956, when the tank was filled up with ballast. Furtheroil was pumped into this tank at Balboa although again the tank
had not first been pumped dry so that, on leaving Balboa, the
tank contained fuel oil which was shortly afterwards found to
be badly contaminated by salt water.
No. 3 double bottom tank contained fuel oil on the vessel's
departure from Vancouver part of which was used by the time
the vessel arrived at San Pedro. At San Pedro, further fuel oil
was taken in the tank, part of which was used during the voyage
to Balboa. At Balboa, further fuel oil was taken in the tank part
or all of which was thereafter used. Thereafter at some time
before Feb. 27, 1956, oil was transferred from No. 1 to No. 3
double bottom tank which was afterwards found to be badly
contaminated by salt water.
If the Makedonia had been in a seaworthy condition onleaving Vancouver and throughout the voyage a quantity of
about 100 tons of fresh water would have been the minimum
sufficient for feeding the boilers, but in the condition in which
she was, resulting in a consumption of 20 tons of feed water per
day before the date of her breakdown, a far greater quantity
would have been required. The plaintiffs said that the fact that
fresh water for the boilers ran out on Feb. 25, 1956, was
evidence of its insufficiency.
If none of the fuel oil had become contaminated by salt water
and the vessel had otherwise been in a seaworthy condition, a
quantity of about 1350 tons would have been sufficient. The
plaintiffs said that the fact that, on Mar. 1, 1956, the vessel wasleft with no burnable fuel oil was evidence of its insufficiency.
The previous casualty referred to in the statement of claim was
the breakdown of theMakedonia on Oct. 31, 1955, while bound
in ballast from Japan to Vancouver, as a result of which she
drifted for about 13 days in heavy weather until picked up by
the salvage tug Sudbury and towed to Vancouver.
If the vessel had been in a seaworthy condition, a quantity of
about 700 tons of sound fuel oil would have been the minimum
sufficient.
If the vessel had been in a seaworthy condition, a quantity of
about 50 tons of fresh water would have been the minimum
sufficient for feeding the boilers, but in the condition in which
she was a far greater quantity would have been required.
By their defence in the first action, the defendants said that thebills of lading provided that general average should be payable
according to York/Antwerp Rules, 1950. The Canadian Water
Carriage of Goods Act, 1936, and the Rules scheduled thereto,
further provided as follows:
3. There shall not be implied in any contract for the carriage
of goods by water to which the Rules apply any absolute
undertaking by the carrier of the goods to provide a seaworthy
ship.
SCHEDULE
Article IV
1. Neither the carrier nor the ship shall be liable for loss or
damage arising or resulting from unseaworthiness unless
caused by want of due diligence on the part of the carrier tomake the ship seaworthy, and to secure that the ship is
properly manned, equipped and supplied . . .
2. Neither the carrier nor the ship shall be responsible for loss
or damage arising or resulting from,
(a) act, neglect, or default of the master, mariner, pilot or the
servants of the carrier in the navigation or in the management
of the ship;
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Adm. The "Makedonia"
(q) any other cause arising without the actual fault and
privity of the carrier, or without the fault or neglect of the
agents or servants of the carrier . . .
The defendants contended that if (which was denied) thevessel was unseaworthy in any of the respects alleged, the same
did not arise or result from want of due diligence on the part of
the defendants their servants or agents to make the vessel
seaworthy, and, accordingly, the defendants were under no
liability to the plaintiffs. The defendants further alleged that the
plaintiffs suffered no damage by reason of any of the alleged
items of unseaworthiness.
The defendants said that the vessel was at all material times
fully classed, having undergone her last annual survey in
December, 1955, and her last special survey in June, 1953. At
no time before or at the beginning of the voyage were the
defendants, their servants or agents aware of the existence of
any of the alleged items nor had they any reason to suspect such
existence.The defendants contended that if (which was denied) the
vessel was not properly manned as alleged, that did not arise or
result from want of due diligence on the part of the defendants,
in that the engine-room crew were at all times qualified or
apparently qualified to undertake their duties, and, accordingly,
the defendants were under no liability to the plaintiffs.
The defendants admitted that the vessel called at the port of
Balboa for the purpose of bunkering on or about Feb. 11, 1956,
but contended that the insufficiency of fuel did not arise from
want of due diligence on the part of the defendants in that on
leaving Balboa the fuel oil on board appeared to be sound and
sufficient for the voyage, and had been obtained from reputable
suppliers; on leaving Vancouver the vessel had on board 323
tons of fuel oil; she took on a further 643 tons at San Pedro, anda further 368 tons at Balboa, and, accordingly, the defendants
were under no liability.
The defendants said that the cause of the breakdown and
towage was the bad quality of some or all of the fuel oil, which
the defendants had no means of ascertaining save by user or
attempted user. The defendants said, alternatively, that the fuel
oil became contaminated by reason of the failure of the
defendants' servants or agents properly or at all to sound and/or
empty Nos. 2, 7 and 8 double bottom tanks before hunkering at
San Pedro on Jan. 28, 1956,
and, in the further alternative, that the contamination was
caused by the failure of the engineers in the course of the
voyage to operate the vessel's pumps and cocks so as to keep
sea water out of the vessel's fuel tanks. Accordingly, thedefendants contended that on Art. IV (2) (a) and (q) of the
Hague Rules as incorporated in the bills of lading excused them
from responsibility for the breakdown and towage.
The defendants also contended that if the breakdown and
towage were due to any fault on their part they would rely on
Rule D of the York/Antwerp Rules, 1950.
By their reply, the plaintiffs in the first action said that if the
defendants' servants or agents failed properly or at all to sound
and/or empty Nos. 2, 7 and 8 double bottom tanks before
bunkering at San Pedro on Jan. 28, 1956, whereby the fuel oil
became contaminated, the Makedonia was unseaworthy and/or
not properly equipped or supplied on leaving San Pedro in that:
(a) The fuel oil contained in one or more of double bottom
tanks Nos. 2, 7 and 8 was mixed with such a quantity of saltwater as to be unburnable.
(b) There was an insufficient quantity of sound fuel oil to
enable her to reach London.
Those plaintiffs further said that on the true construction of
Rule D of the York/Antwerp Rules, 1950, the defendants were
precluded by their failure to provide a seaworthy ship from
claiming any contribution in general average, and contended
that they were entitled to sue the defendants for the damage
caused by such failure.
According to the statement of claim of the plaintiffs in the
second action, under 191 bills of lading dated in Vancouver on
various dates in January, 1956, and signed by the master or
agent of the defendants' steamship Makedonia, there were
shipped in good order and condition on board the Makedonia,for carriage to ports in the United Kingdom, for reward to the
defendants, numerous consignments of timber and one
consignment of prime unbleached kraft.
Those plaintiffs said that it was the duty of the defendants as
carriers for reward and the defendants by the bills of lading
expressly contracted to deliver the goods at their respective
ports of discharge in the same good order and condition as they
were in when shipped.
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Adm. The "Makedonia"
Those plaintiffs said, alternatively, that it was expressly
provided by Clause 1 of the conditions printed on the reverse of
all the bills of lading that the bills of lading should have effect
subject to the provisions of the Water Carriage of Goods Act,1936, of the Dominion of Canada, and that that Act should be
deemed to be incorporated therein.
After referring to Art. III (1) and Art. IV (1), those plaintiffs
said that Art. III (2) provided that the carrier should properly
and carefully load, handle, stow, carry, keep, care for and
discharge the goods carried.
Those plaintiffs said further that on the true construction of the
Rules, the defendants were bound to exercise due diligence to
make theMakedonia seaworthy and properly to man, equip and
supply her before and at the beginning of each bunkering stage
of the voyage, or, alternatively, that the defendants impliedly
warranted that before and at the beginning of each bunkering
stage they would exercise due diligence to make the Makedonia
seaworthy and properly to man, equip and supply her for thatstage.
Those plaintiffs alleged that, on leaving the ports of shipment,
theMakedonia was unseaworthy in respects (lettered "a" to "p")
similar to those (lettered "a" to "m") alleged by the plaintiffs in
the first action (see pp. 318 and 319 ante).
The plaintiffs in the second action alleged that by reason of
that unseaworthiness, on and after Feb. 17, 1956, the
Makedonia had difficulty in raising sufficient steam to proceed
and on Mar. 1, 1956, finally broke down and became disabled,
owing to lack of steam, in the Atlantic Ocean about 870 miles
from Ponta Delgada, which was the nearest port, and, by reason
of her list and the fact that she was tender, her situation in the
North Atlantic in winter was rendered even more perilous than
it would otherwise have been.Those plaintiffs said that, owing to the vessel's disablement, it
was necessary for her to accept salvage services. By reason of
the unseaworthiness due to her having reduced her cable, it was
not possible for theMakedonia to be towed by a sister ship, the
North Queen, which reached her on Mar. 3, 1956, with the
result that it was necessary to accept the services of the Agios
Georgios Vwhich reached theMakedonia on Mar. 5, 1956, and
proceeded to tow her to Ponta Delgada.
Those plaintiffs also said that it was necessary (a) in order to
raise steam in an attempt to transfer sufficient chain from the
port anchor to the starboard anchor to enable the North Queen
to take the Makedonia in tow, to jettison a quantity of timberfrom the latter vessel's cargo, and (b) in order to raise steam for
her steering and generator, to burn a quantity of her cargo.
Those plaintiffs alleged that, by reason of such jettison and
burning and in breach of their duty and contracts, the
defendants failed to deliver all the goods shipped, but delivered
a number of consignments short of various quantities of timber
whereby a number of the plaintiffs suffered loss and damage.
Also those plaintiffs' goods became liable for salvage charges
and costs whereby those plaintiffs suffered loss and damage.
Before the arrival of the Makedonia in London on or about
Mar. 21, 1956, the defendants demanded and refused to release
those plaintiffs' goods without general average deposits or
guarantees of payment of such contributions to general average
as might be found due in respect of their goods. Accordingly, inMarch, 1956, guarantees of such payment were given by or on
behalf of those plaintiffs in order to obtain the release of their
goods.
On or about Jan. 27, 1960, the defendants, by their agents,
Bennett & Co., requested payment by those plaintiffs of general
average contributions.
Those plaintiffs said that any general average expenditure
which might have been incurred was caused by the fault of the
defendants in providing a vessel which was unseaworthy in the
respects alleged in the statement of claim, in consequence of
which those plaintiffs were not liable to pay the contributions or
any part thereof, and further, that the fourth plaintiffs Les Fils
de Bechara Karam were entitled to repayment by the defendants
of the sum of 243 6s. 5d. paid by them on Jan. 28, 1960, astheir contribution without prejudice to the ultimate
determination of liability.
The plaintiffs in the second action claimed:
(1) Judgment against the defendants and their bail for the sums
due to shortage on discharge and loss on that account with
interest thereon at five per cent. per annum from the dates of
discharge.
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Adm. The "Makedonia"
(2) Judgment against the defendants and their bail for the sums
paid on account of salvage award and costs, with interest
thereon at five per cent. per annum.
(3) A declaration that those plaintiffs were not liable tocontribute any sum in respect of general average and in the case
of the fourth plaintiffs' payment of the sum paid by way of
general average contribution, with interest thereon at five per
cent. per annum from Jan. 28, 1960.
(4) Cancellation of the guarantees given in March, 1956.
(5) A reference, if necessary, to the Admiralty Registrar
assisted by merchants.
In their defence in the second action, the defendants referred
to the Canadian Water Carriage of Goods Act, 1936, and
alleged that their obligation in relation to seaworthiness under
the Rules was to exercise due diligence before and at the
beginning of the voyage to render the vessel seaworthy, and for
this purpose the voyage on a true construction of the Rules in
each case began at the port of shipment named in the respectivebills of lading. Subject to the fulfilment of that obligation, the
defendants were by virtue of Art. IV (1) of the Rules under no
liability for loss or damage arising or resulting from
unseaworthiness.
The defendants contended that if (which was denied) the
vessel was unseaworthy in any of the respects there alleged, it
did not arise or result from want of due diligence on the part of
the defendants, their servants or agents to make the vessel
seaworthy, and, accordingly, the defendants were under no
liability to the plaintiffs; and further that those plaintiffs
suffered no damage by reason of any of the alleged items of
unseaworthiness.
The defendants repeated their defence in the first action (see p.
321 ante), and further contended that if the vessel wasunseaworthy in any of the respects alleged in the statement of
claim, it did not arise or result from want of due diligence on
the part of the defendants, their servants or agents to make the
vessel seaworthy, and, accordingly, the defendants were under
no liability to those plaintiffs, and, further, that those plaintiffs
suffered no damage by reason of any of the alleged items of
unseaworthiness.
In relation to those bills of lading which covered cargo carried
on deck, the defendants relied on Clause 6 printed on the
reverse of the bills of lading as exempting them from any
liability for any loss or damage to such cargo, howsoever
caused, and contended that they were under no liability in
respect of such deck cargo.By their counterclaim, the defendants contended that arising
out of or in connection with the breakdown and towage they
intentionally and reasonably made or incurred extraordinary
sacrifices or expenditures for the common safety for the
purpose of preserving from peril the vessel and her cargo, and
that, accordingly, they were entitled to claim general average
contributions from the respective plaintiffs as set out in an
average adjustment drawn up by Bennett & Co., dated Jan. 22,
1960.
The defendants counterclaimed:
(i) A declaration that they were entitled to recover general
average contribution from the plaintiffs to the extent of their
due proportions as set out in the adjustment of Jan. 22, 1960;
(ii) Interest.
By their reply and defence to counterclaim, the plaintiffs in the
second action alleged that if the defendants' servants or agents
failed properly or at all to sound and/or empty Nos. 2, 7 and 8
double bottom tanks before bunkering at San Pedro on Jan. 28,
1956, whereby the fuel oil became contaminated, the
Makedonia was unseaworthy and/or not properly equipped or
supplied on leaving San Pedro in that: (a) the fuel oil contained
in one or more of double bottom tanks Nos. 2, 7 and 8 was
mixed with such a quantity of salt water as to be unburnable;
and (b) there was an insufficient quantity of sound fuel oil to
enable her to reach London.
Those plaintiffs said that on the true construction of the
York/Antwerp Rules, 1950, the defendants were precluded by
their failure to provide a seaworthy ship from claiming anycontribution in general average, and that those plaintiffs were
entitled to sue the defendants for the damage caused by such
failure.
Those plaintiffs said that no admission was made as to the
reasonableness, amount or purpose of any sacrifice or
expenditure made or incurred by the defendants, and denied that
the defendants were entitled to claim general average
contributions from the respective plaintiffs.
Those plaintiffs alleged that if the defendants were paid the
general average contributions, those plaintiffs would be
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entitled to recover an amount equivalent thereto as damages for
the defendants' breaches of contract whereby in order to avoid
circuity of action the defendants were not entitled to the
contributions.Mr. H. V. Brandon, Q.C., and Mr. J. F. Willmer (instructed by
Messrs. Clyde & Co.) appeared for the plaintiffs; Mr. R. A.
MacCrindle and Mr. M. J. Mustill (instructed by Messrs.
Holman, Fenwick & Willan) represented the defendants.
Mr. BRANDON, for the plaintiffs, said that the breakdown of
the Makedonia, an oil-fired steamship, formerly the Empire
Squire, was due to contamination of oil fuel, and lack of feed
water for her boilers.
As a result she had to take advantage of salvage assistance in
the form of towage to the Azores. An award of 44,000 against
ship and cargo was made by the Lloyd's appeal arbitrator.
In addition, general average sacrifices were made, and general
average expenditure was incurred because of the breakdown.
The general average sacrifices consisted of: (1) A jettison of
part of the forward deck cargo in order to trim the ship by the
stern in an effort to pump out the remains of oil fuel in the after
double bottom tank. (2) The burning of cargo, mostly deck
cargo, but some under deck, as fuel for the boilers so as to
provide steam for the auxiliaries.
The general average expenditure consisted mainly in expenses
at the port of refuge, Ponta Delgada. In consequence, the cargo-
owners had to pay their share of the salvage award, interest and
costs, and had claims made against them for general average
contribution in respect of which they had given guarantees.
COUNSEL said that the question for the decision of the Court
was whether the breakdown of the ship was caused by the
actionable fault of the defendants.
COUNSEL said that theMakedonia had trouble on her previous
voyage from Japan to Vancouver in ballast, when her propeller
became loose in the shaft and she had to be towed into
Vancouver by a salvage tug, arriving on Dec. 11, 1955. She was
put in dry dock, where various repairs were carried out,
including repairs to piping in the fuel tanks, and defective
pumps.
COUNSEL said that it was clear from the ship's documents that,
at San Pedro and Balboa, oil was introduced into No. 2 tank
when it already contained salt water ballast.
The vessel arrived at Balboa on Feb. 11 and sailed on Feb. 12with 851 tons of fuel oil and 200 tons of boiler feed water.
By Feb. 25, the boiler feed water was exhausted, due mainly to
loss of steam from the engine packing, which resulted in a
consumption of feed water of 20 tons a day. On Feb. 26, the
engineers reported that the evaporator output was insufficient,
and that they were using sea water for the boilers. Lack of
steam stopped the engines on Feb. 29. The engines stopped
finally on Mar. 1, and the vessel broke down finally in a
position lat. 31 39 N., long. 42 17 W., 870 miles from Ponta
Delgada.
The engineers reported that they could not raise enough steam
for the auxiliaries, and the master ordered the crew to cut up
deck cargo as fuel.
On Mar. 2, the Makedonia remained disabled and adrift. OnMar. 3, the North Queen, a sister ship, arrived and made a
towage connection which broke.
On Mar. 5, the turbo-electric tanker Agios Georgios Varrived
and offered towage on Lloyd's Standard Form of Salvage
Agreement, which was accepted. During the tow to Ponta
Delgada more cargo was cut up and burned. Some repairs were
carried out, and theMakedonia arrived eventually in London on
Mar. 21.
COUNSEL said that he put the plaintiffs' case in this way: 1.
The liability for salvage and the claims for general average
contribution, and the loss of cargo by jettison or burning were
caused by the breakdown; 2. The breakdown itself was caused
by lack of usable fuel oil and lack of feedwater; 3. Each of these
deficiencies was caused by the vessel's unseaworthiness.
Mr. BRANDON cited, among other authorities,E. Timm & Son,
Ltd. v. Northumbrian Shipping Company, Ltd., (1937) 58
Ll.L.Rep. 45, and said that if the doctrine of bunkering stages
did not apply to the present case, there must be enough bunkers
for the whole voyage. One could not split bunkers without also
splitting the need for due diligence at each port of call.
If by voyage, it was meant the whole voyage, it was necessary
to use due diligence to provide sufficient bunkers at
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the original port to go the whole voyage. It was the owners'
duty to exercise reasonable foresight.
Prima facie "voyage" meant the journey from the loading port
to the discharging port. The shipowner could divide it intostages, but if he did, his obligations attached to successive
stages.
Mr. MACCRINDLE, for the defendants, handed in two
amendments, alleging that the cause of the breakdown was the
failure of the engineers to lubricate the engine properly, and
contending that the owners had exercised due diligence in the
selection of the engine-room crew.
Mr. BRANDON said that he would not resist the amendments,
subject to comment, and preserving his position on costs.
Mr. MACCRINDLE submitted that there were three questions
for decision: (1) Was the vessel unseaworthy? (2) If so, did the
unseaworthiness cause the loss-the towage to the Azores and
the expenses at the port of refuge? (3) If so, did the owners fail,
both before and at the beginning of the voyage, to exercise duediligence to make her seaworthy?
The defendants' case was that the answers to these questions
should be in the negative. In only the third question was the
burden of proof on the defendants, and that involved the
construction of a number of contracts contained in the bills of
lading.
These contracts contained certain clauses. Some of them set
out in extenso, and others incorporated by reference. Among
these latter were the Hague Rules, Art. IV (1), of which
contended COUNSEL, held the key to the legal issue.
Because of Art. IV (1), if he had exercised due diligence in
making the ship seaworthy before and at the beginning of the
voyage, he was not liable for unseaworthiness.
The alleged physical defects in the ship fell into three classes:
(1) Water or steam; (2) fuel; (3) stability and pumps.
The first and third classes did not, in COUNSEL'S submission,
cause the breakdown. The real cause was the contamination of
fuel due to the negligence of those on board.
It was the defendants' case that the ship was physically
seaworthy. If they were wrong on that point, they contended
that they had exercised due diligence by ordering the repairs
carried out at Vancouver.
On the question of unseaworthiness through the alleged
incompetence of the crew, COUNSEL argued that theMakedonia
was one of the simplest types of ship to operate. No special
knowledge was required, and there was no suggestion that theengine-room was undermanned, or that the engineers were
physically unfit for their duties.
The debacle on this voyage was caused by several acts of
negligence by one or more of the engineers.
In COUNSEL'S submission the question of competence had to
be approached in the same way as an action for physical
unseaworthiness. One had to find not only incompetence, but
that incompetence caused the casualty.
Continuing his argument on the exercise of due diligence in
the selection of crew, COUNSEL submitted that a shipowner's
position was more favourable under a Hague Rules contract
than under common law, and that he was not liable if ordinary
care had been taken to make the ship seaworthy.
COUNSEL said that if his Lordship were to form the view thatinadequate standards had been exercised, he would ask his
Lordship to say in terms what more could have been done, not
only for the guidance of the Makedonia's owner, but for all
other shipowners as well.
COUNSEL said that different considerations applied to deck
cargo to which the Hague Rules did not apply. The parties were
at liberty to contract in whatever terms they wished as to
obligations and exceptions.
Clause 6 of the bill of lading laid down that the goods were
carried at sole risk of the owner and that the carrier was not
liable for anything in relation to deck cargo, unless it amounted
to a breach of contract.
COUNSEL said that the argument against him was that while
Clause 6 was perfectly adequate in relation to claims for
physical damage to deck cargo-now abandoned- it was not
adequate to protect him from the claim that the cargo-owner
had suffered, or would suffer pecuniary damage if he had to pay
general average or salvage.
His answer was: (1) The clause on the true construction was
wide enough to cover that sort of damage; and (2) even if
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it was only restricted to physical loss or damage, that was not
enough in the circumstances to defeat the counterclaim for
general average.
Mr. BRANDON said that his case rested on four mainpropositions:
(1) The plaintiffs' claims arose out of the breakdown of the
vessel which, he thought, was not disputed;
(2) The breakdown was caused by (a) lack of feed water,
which was disputed; and (b) lack of burnable fuel, which was
conceded, though there was disagreement as to whether that
was due to contamination at Balboa, or successive
contaminations after leaving Balboa.
(3) Both these deficiencies were caused by unseaworthiness,
which was wholly disputed.
(4) In relation to under-deck cargo claims, the defendants had
failed to prove that due diligence was exercised in respect of
seaworthiness, which was also wholly disputed.
This was a case, said COUNSEL, where a ship which should
have had plenty of feed water and bunkers to reach London
from Balboa without replenishment, broke down for want of
both before she got even half-way.
The material facts were, or ought to have been, within the
knowledge of the defendants and those employed by them, yet
apart from the chief engineer, whose evidence was unreliable,
not a single witness had been called from the ship to say what
did happen or did not happen. The burden of proof lay on the
defendants to show, if unseaworthiness in any respect was
proved, that they had exercised all normal and reasonable care
to prevent that unseaworthiness.
The principle that due diligence must be exercised applied,
COUNSEL submitted, not only to the physical condition of theship involving repairs and maintenance, but equally to the task
of manning the ship properly.
The main heads of unseaworthiness were: Improper manning
of the engine-room, water in No. 2 tank on leaving Balboa, and
leakages in the main engine packings.
COUNSEL submitted that the engineers were grossly inefficient,
and that not
enough time had been given to their selection. All the sources
of information available should have been used.
Of the engine repairs carried out at Vancouver, COUNSEL
submitted that if they were inadequate, then due diligence couldnot have been exercised.
Opening his submissions on law, Mr. BRANDON said that the
first question was the doctrine of stages in relation to the Hague
Rules. The true basis of the common-law doctrine of stages, he
submitted, was contained in three propositions.
1. The ship must be seaworthy at the commencement of the
voyage.
2. So far as bunkers were concerned, the requirements could
be complied with in two ways: (a) by having enough bunkers
for the whole voyage at the loading port; or (b) by having
enough bunkers at the loading port for the first stage, and taking
on enough further bunkers for each sucessive stage.
3. If the carrier chose to comply with the requirement in the
second way, the ship's initial seaworthiness was conditional on
sufficient bunkers being taken at subsequent bunkering ports.
If the condition was fulfilled, the ship was seaworthy at the
commencement of the voyage. If not fulfilled, the effect was
retrospective and the ship was not seaworthy at the
commencement of the voyage. For instance, a surveyor might
give a certificate of seaworthiness for the voyage subject to the
ship doing something at the next port.
If the condition was performed, then retrospectively the ship
was seaworthy right from the start. Conversely, if the condition
was not performed, the ship was not seaworthy. (The Vortigern,
[1899] P. 140.)
COUNSEL submitted that where words in the Hague Rules had
been the subject of previous decisions they should beinterpreted in the same way. Common law involved a concept
of conditional seaworthiness, and an implied warranty of
seaworthiness at the beginning of the voyage.
It was the plaintiffs' case that the ship did not have enough
bunkers at the loading port for the voyage and, that prima facie
the ship was unseaworthy. This could be rebutted by the
provision of
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sufficient bunkers at successive stages. In the present case the
owners had failed to do this, by the mix-up of bunkers at
Balboa.
Mr. MacCrindle's submission that Clause 6 of the bill oflading was wide enough to cover pecuniary and physical loss or
damage made it essential to determine the true construction of
the clause.
COUNSEL put forward six possible heads of damage: Physical
loss of cargo by jettison; physical damage to cargo by oil or
water; salvage liability due to the need for towage; liability to
contribute to general average in respect of port of refuge
expenses; incurring of expenses in transhipment and on-
carrying cargo, due to the ship being so badly damaged as to
justify the carrier in abandoning the voyage; loss by delay, e.g.,
loss of market.
COUNSEL submitted that the clause covered only physical loss
or damage and pecuniary loss caused by delay. It was
significant in construing the clause, that the words "or delay"should have been added. If the previous words had been
sufficient to cover pecuniary loss, why were the words "or
delay" added?
The clause, as a whole, did not extend to pecuniary liability.
Therefore, it did not extend either to general average or to
matters of salvage.
Mr. MACCRINDLE said that it was true that that common-law
warranty attached at the commencement of the voyage, but the
effect of the doctrine of stages was to impose recurring
obligations.
There was no doctrine of conditional or retrospective
unseaworthiness. To suggest that the owners, who had done all
that the law required of them before leaving Vancouver, should
by subsequent events be deemed not to have done all that wasrequired of them was to impose on a commercial contract of
affreightment a doctrine of such subtlety that it would take
some understanding in Lincoln's Inn or the House of Lords
itself.
COUNSEL said that there were express words in the Hague
Rules which said that he was not liable for unseaworthiness at
any stage, if at the beginning of the voyage he exercised due
diligence.
Judgment was reserved.
Friday, Mar. 9, 1962
____________________
JUDGMENTMr. Justice HEWSON: In this judgment, I am dealing with
two actions which were consolidated, No. 1 action, Folio 64,
1957, No. 625, and the second action, Folio 110 of 1961, No.
1326.
In the first action, the plaintiffs are the owners of seven parcels
of timber under seven bills of lading; in the second action, the
plaintiffs are the owners of 191 parcels of timber under 191
bills of lading. All the cargo was shipped early in 1956 in the
Makedonia at Vancouver and other Western Canadian ports in
the vicinity of Vancouver, for carriage to United Kingdom
ports. All the cargo in the first action was carried under deck.
Of the cargo in the second action, some was carried under deck
and some was carried on deck.
TheMakedonia is a single screw steamship of just over 7000tons gross, fitted with triple expansion engines of 2500 i.h.p.
She was originally a coal burner and was converted to oil
burning in Naples, in 1949.
Briefly, the claims arise in the following circumstances. In the
course of the voyage from Western Canadian ports to the
United Kingdom, theMakedonia broke down in mid-Atlantic in
an approximate position lat. 31 39 N., long. 42 17 W., about
870 miles to the southward and westward of the Azores. It is
alleged that she broke down as a result of two causes, firstly,
contamination of oil fuel and, secondly, the lack of feed water,
that is fresh water, for the boilers. As a result of this breakdown
she was entirely immobilized and had to take salvage assistance
under Lloyd's Standard Form of Salvage Agreement to the
Azores, for which an award of 44,000 was made against theship and the cargo.
The plaintiff owners in these actions have had to pay their
respective shares of the award, interest and costs, and there are
also claims against the plaintiffs for general average
contributions, in respect of which guarantees have been given
by them except in the case of one plaintiff, who has paid his
contribution.
The general average sacrifices come under two heads: firstly,
the jettisoning of some forward deck cargo which was made to
trim the vessel by the stern in an effort to pump the remains of
fuel oil in No. 7 double
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Adm. The "Makedonia" Hewson, J.
bottom tank; secondly, the burning of some of the timber both
from on deck and under deck as fuel to provide steam for the
auxiliaries during the towage to the Azores. There is also
general average expenditure, which is chiefly in respect of, ifnot entirely in respect of, the expenses of the port of refuge.
Now, the port of refuge was Ponta Delgada in the Azores. The
plaintiffs in No. 1 action claim to recover as damages from the
defendants their share of the salvage award, interest and costs
which they paid and also for a declaration that they are not
liable to make a general average contribution, and they ask for a
cancellation of the guarantees they have given. In the second
action, the plaintiffs make similar claims with the addition that
certain of them also claim for the loss of some of the cargo by
reason of jettisoning and burning. There were other small
claims by some of the plaintiffs for damage to cargo by oil
and/or water, but I am told that these have been disposed of by
settlement.
In the second action, there is a counterclaim by the defendantsfor a declaration that they are entitled to recover general
average contribution from the plaintiffs to the extent of their
contributions as set out in the adjustment. The adjustment is
dated Jan. 22, 1960. There are certain admissions in these
actions and they are as follows: that the plaintiffs have a good
title to sue; that the goods mentioned in the statement of claim
alleged to have been shipped in good order and condition were
so shipped; that salvage services were rendered to the ship and
cargo and that an award of 44,000 was made, and that the
plaintiffs have paid their respective shares; as to general
average, the adjustment is agreed. These documents show that
claims have been made for the plaintiffs' share.
All the plaintiffs' parcels were carried under similar bills of
lading and all parcels were shipped at Canadian West Coastports. Clause 1 in the bill of lading is the clause paramount
which, so far as these parcels are concerned, incorporates the
Water Carriage of Goods Act, 1936, of the Dominion of Canada
into the contracts of carriage, and the effect of this is, therefore,
that the Hague Rules apply to the under-deck cargo and do not
apply to the deck cargo. That is conceded. The deck cargo is
specially provided for by Clause 6 of the bill of lading, and I
will deal with that in due course.
Clause 18 of the bill of lading-when I say "bill of lading", I
mean all bills of lading - provides that general average should
be paid according to the York/Antwerp Rules of 1950, and
Clause 21 that, subject to Clause 1, the paramount clause, andClause 18, the bill of lading, no matter where issued, shall be
construed and governed by English law as if the vessel sailed
under the English flag.
Now, Sect. 3 of the Canadian Act of 1936 provides that there
shall not be implied in any contract for the carriage of goods by
water to which the rules apply, any absolute undertaking of the
carrier of the goods to provide a seaworthy ship. The rules
referred to are those contained in the schedule to the Act which,
with some slight differences which are immaterial to this case,
are the same as those contained in the schedule to the English
Carriage of Goods by Sea Act, 1924. Art. III (1) of the schedule
provides that the carrier shall be bound before and at the
beginning of the voyage to exercise due diligence: among other
things, to make the ship seaworthy and properly man, equip and
supply the ship. Art. IV (1) provides that neither the carrier nor
the ship shall be liable for loss or damage arising or resulting
from unseaworthiness unless caused by want of due diligence
on the part of the carrier to make the ship seaworthy, and secure
that the ship is properly manned, equipped, supplied and so on,
in accordance with the provisions of Art. III (1). Art. IV (1) also
provides that whenever loss or damage has resulted from
unseaworthiness, the burden of proving the exercise of due
diligence shall be on the carrier or other person claiming
exemption under this section. In Art. IV (2): neither the carrier
nor the ship shall be responsible for loss or damage arising or
resulting from many things, including the act, neglect or default
of the master or others in the navigation or management of the
ship.
Now, it is beyond dispute that, on Mar. 1, 1956, when in the
North Atlantic in the position to which I have already referred,
the Makedonia was unable to continue her voyage under her
own power and had to take salvage assistance. She was towed
to Ponta Delgada and the liability for salvage, general average
contribution, and loss of cargo by jettisoning and/or burning
were caused by, and stemmed from, this breakdown.
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Before proceeding to the consideration of whether the
breakdown was caused by actionable fault on the part of the
defendant shipowners, I propose to decide firstly what "voyage"
under Art. III (1) means. There has been much argument aboutit. Mr. Brandon submitted that the Hague Rules substituted, for
the absolute warranty of seaworthiness at each bunkering stage
at common law, a qualified obligation upon the owners to
exercise due diligence to make her seaworthy at each bunkering
port. If she was unseaworthy on leaving any bunkering port
through defective bunkers being shipped there or through
loading good fuel oil into tanks already containing sea water,
thereby contaminating the fuel and making it unburnable, the
owners are responsible for the lack of due diligence on the part
of the engineers at the beginning of that stage and they cannot,
therefore, rely on the exceptions in Art. IV (2).
There is no decision on what is meant or implied by "voyage"
in Art. III (1) of the Hague Rules. I have already referred to the
common law and I shall make some further reference to it. At
common law, the voyage was, where necessary to the
shipowner, divided into a series of stages, but that was in
relation to the warranty of seaworthiness; it did not alter the
definition of "voyage". There may have been several stages, but
there was only one voyage. Mr. Brandon argued that, at
common law, if insufficient bunkers were taken at any
intermediate bunkering port the effect was retrospective and the
ship was not seaworthy at the beginning of the voyage.
In support of this, he referred me to The Vortigern, [1899] P.
140. At p. 155 of that report, Lord Justice A. L. Smith, in effect,
said that if the shipowner, from the necessity of the case,
divided the voyage into stages to bunker, he did not by so doing
abandon the warranty of seaworthiness which attached at the
commencement of the voyage and therefore the existing
warranty (which I, myself, shall call the original warranty) was
extended to the beginning of each stage. I see no essential
difference between what Lord Justice A. L. Smith said in The
Vortigern, sup., and what Lord Wright said in Northumbrian
Shipping Company, Ltd. v. E. Timm & Son, Ltd., [1939] A.C.
397; (1939) 64 Ll.L.Rep. 33. Lord Wright said (ibid., at pp. 404
and 38 of the respective reports):
. . . Thus the warranty of seaworthiness is sub-divided in
respect of bunkers.
Instead of a single obligation to make the vessel seaworthy in
this respect, which must be satisfied once for all at the
commencement of the voyage, there is substituted a recurring
obligation at each bunkering port . . .In theNorthumbrian Shipping Company case, sup., Sect. 6 of
the earlier Canadian Water Carriage of Goods Act-the Act of
1910-applied. This section provided that if the shipowner
exercised due diligence to make the ship in all respects
seaworthy and properly manned, and so on, he should not be
responsible for any loss resulting from faults or errors in the
navigation of the ship. The House of Lords held that that
qualified obligation referred to by Mr. Brandon applied to the
owners at each bunkering stage, that is, the owners to exercise
due diligence regarding bunkers at each stage.
Has the different wording of the Hague Rules or the Rules of
the later Canadian Act of 1936 altered the position? Mr.
Brandon argued that the importation of the words "before and at
the beginning of the voyage" has added nothing and that thewords are simply declaratory of the law as it was at the time or
up to the time the Rules were formulated. In my view, the
position in this country before the 1924 Act was clear without
any further words. Mr. Brandon argued that "seaworthy at the
beginning of the voyage" had already been defined by a long
line of cases and therefore the qualified obligation to use due
diligence of seaworthiness at each stage should be read into the
words.
Now I recall that the Hague Rules were the outcome of
international conference, and that the words in an English
statute should be given their plain meaning subject to any
particular meaning which our Courts have, in former times
imputed to them, as was done by the House of Lords in Gosse
Millerd, Ltd. v. Canadian Government Merchant Marine, Ltd.,[1929] A.C. 223; (1928) 32 Ll.L.Rep. 91-in respect of the
words, "management of the ship". That, as I see it, is construing
the meaning of a phrase or a set of words; it is not the
application of a doctrine. I see no obligation to read into the
word "voyage" a doctrine of stages, but a necessity to define the
word itself. The word does not appear in the earlier Canadian
Act of 1910. "Voyage" in this context means what it has always
meant: the contractual voyage from the port of loading to the
port of discharge as declared
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Adm. The "Makedonia" Hewson, J.
in the appropriate bill of lading. The rule says "voyage" without
any qualification such as "any declared stage thereof". In my
view, the obligation on the shipowner was to exercise due
diligence before and at the beginning of sailing from theloading port to have the vessel adequately bunkered for the first
stage to San Pedro and to arrange for adequate bunkers of a
proper kind at San Pedro and other selected intermediate ports
on the voyage so that the contractual voyage might be
performed. Provided he did that, in my view, he fulfilled his
obligation in that respect.
I find that the shipowner exercised due diligence to ensure
sufficient and proper bunkers at each stage of the voyage. Had
some of the fuel not become contaminated by sea water and
become unburnable I am satisfied that the Makedonia would
have been able to complete her contractual voyage. On this
voyage not only did she exhaust her usable fuel oil on Mar. 1,
1956, but on Feb. 25, 1956, she exhausted her supply of fresh
water. Mr. Brandon submitted that in considering bunkering,
fresh water should also be taken into account: it is no good
putting a fire under an empty kettle. As a general proposition I
agree. The same foresight and the same diligence should be
exercised by owners with regard to water for boilers as with
fuel for the furnaces. In considering reasonable provision of
water for boilers regard must be had to the type of boilers and
their daily consumption; they must have regard to such matters
as to whether there is a condenser, and its condition, and an
evaporator and its condition.
In this ship there were fitted three Scotch boilers which were
capable in an emergency of running on a salt-water feed, and I
find that the daily average consumption of fresh water for all
purposes in theMakedonia was about eight tons. When she left
her last intermediate port, at Balboa, she had taken in there 200
tons of fresh water. I have no reason to believe that she was
completely out of fresh water on her arrival at Balboa, and I
find, on the probabilities, that she left Balboa with her capacity
of fresh water, which was about 250 tons which, as far as could
reasonably have been foreseen, was ample for the voyage to
London.
Now, I have had considerable evidence from surveyors and
those qualified to speak on these matters as to the use of salt
water in Scotch boilers. Mr. Rolland, who was called by the
plaintiffs on one point only,
which had nothing to do with this question, informed me that 30
years ago Scotch boilers were fairly common and that many
companies ran them on salt water only. Mr. Leach, who was
one of the experts called on behalf of the defendants, and whowas fully examined and cross-examined on this matter, told me
that in an emergency he had himself used salt water in the
boilers at sea, though he was far from recommending its general
use. He said that in ordinary circumstances he would not expect
a ship of the type of the Makedonia-she is an Empire type-to
use salt water in the boilers; nevertheless, she could voyage
safely on it for about six weeks, provided there was a normal
consumption of water in the boilers. If, because of an abnormal
leakage of steam or loss of water, the consumption was
increased from eight tons to about 20 tons per day then scaling
would occur fairly rapidly and her safe voyaging period would
be considerably reduced.
With the rapid scaling the fuel consumption would increase,
and increase from the normal average of 24 tons a day in this
ship to a maximum of about 30 tons per day. As the
consumption of fuel rose so would there be a loss of speed in
the ship owing to the reduced generation of steam because of
the scaling on the tubing. He said that such usage of salt water
in the boilers would call for care, namely, to see that the density
in the boilers did not exceed what he called four over 32. This,
he said, could be achieved by blowing down two or three or
four times a day. The British Standards Institution
recommendation was to blow down at four over 32. That
recommendation advised that the density must not exceed four
over 32 because at higher densities you might get crystalization
of common salt and of other salts which dissolve in water.
While using salt water in the boilers of the Makedonia from
Feb. 26 until Mar. 9, which is two days before her arrival at
Ponta Delgada, the density never exceeded 314 over 32. Thesalinity did not rise as high as four over 32, so it appears as if
the engineers blew down as often as necessary over the period
of about 13 days. It is quite true that during those 13 days the
vessel was not steaming. She was either adrift as a hulk in the
Atlantic or being towed towards the Azores, and in such
circumstances the consumption of water was nothing like as
high as it would have been if she had been
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Adm. The "Makedonia" Hewson, J.
steaming. Nevertheless, the engineers seem to have known what
to do in such circumstances.
Mr. Leach's view, which I accept, was that if the vessel was
half-way across the Atlantic and ran out of fresh water withvery little fuel left, her best course was to use sea water and
conserve her fuel rather than to expend it on the evaporator. I
have little doubt, after considering all the evidence I have heard
on the use of salt water in the circumstances I have had to
consider, that theMakedonia could have completed her voyage
to the United Kingdom using salt water provided she had had
sufficient burnable fuel on board.
Now, in the course of this somewhat lengthy hearing I have
considered what course the vessel was on after leaving the
Windward Passage. She was apparently on a course to pass
fairly close to the Azores. In such circumstances, it would have
been more prudent for her to call there and replenish her fresh
water. Even if there had been no fuel trouble she might well
have done so; she could certainly have reached the Azores onsalt water if only she had had sufficient burnable fuel. In those
circumstances there would have been no need for towage
assistance.
It is perfectly true that the master of the vessel entered in his
log-book, or someone entered in the deck log-book, on Feb. 28,
1956, that is, three days after running out of fresh water and two
days before the final expenditure of burnable fuel oil:
For reasons of safety of the vessel, the cargo and those on
board I am heading to Azores in view of the condition of the
boilers and of the fuel oil.
But, on Mar. 11, which was the day of the ship's arrival at Ponta
Delgada, there is entered in the log-book, which is signed by the
master:
The cause of the Makedonia towage and the arrival at thisport is the quantity of 369 tons of fuel oil taken at Balboa and
the impotence [sic] of the competent persons to know in time
that the fuel oil could not burn, so that vessel may have
proceeded by her own power.
I think that for "impotence" one should read "inability".
Two days after he had run out of fresh water he sent a cable to
his owners in London which I shall read:
. . . HAVE HEAVY WEATHER AND SERIOUS TROUBLESWITH FUEL AND FEED WATER STOP TANK THREE
APPROXIMATE QUANTITY200 TONS MIXED WITH SEAWATER SUSPECT FROM PIPE LEAKING TANK ONE STOP
ONLY CLEAN FUEL FOR CONSUMPTION150 TONS TANKSEVEN STOP SUFFICIENT QUANTITY FUEL MIXED WITH
BALLAST AFTER TRANSFER PUMP HAVE BEEN UNABLE
DRAINING MORE FUEL AND FORCED FILLING THESE
TANKS WITH BALLAST FOR VESSELS STABILITY STOP . . .
In particular, I underline the next and final sentence:
. . . FEED WATER CONSUMPTION OWING STEAM WASTING
FROM MAIN ENGINE PACKINGS OVER 20 TONS DAILY STOPSUGGEST IMPERATIVE PROCEED AZORES FOR FUEL AND
FRESH WATER PLEASE INSTRUCT.
I have no doubt that there was an abnormal consumption of
fresh water after leaving Balboa; the consumption rose to about
20 tons per day and the evidence of that is in the wireless
message I have just read. The question I have to answer is not
whether she might have called at the Azores for fresh water, butwhether the lack of it caused or materially contributed to the
towage, and I find that it did not for the reasons I have already
given.
Now, during the course of the hearing, many matters were
investigated, and properly so, and I should make some mention
of them before I pass on to the matters which, in my view,
really are important. Among the matters investigated were the
state of the condenser, the evaporator and the heating coils.
They were commented upon and their condition was thoroughly
investigated by the plaintiffs.
As to the leakage in the condenser, Mr. Foster, the surveyor
who was called by the plaintiffs, agreed that any leakage from
the condenser in this case could be ignored. As to the
evaporator I have no convincing evidence that it was
unserviceable, and the heating coils I find are immaterial in this
case.
The condition of the various pumps in the ship was properly
investigated and examined. As the case proceeded, the number
of pumps that really called for comment was gradually reduced,
and I was left with three; the general service pump, which at
some later stage of the case I was told was completely
disconnected from the ballast and fuel lines, was not material.
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The ballast pump, which was overhauled at Vancouver, had a
pretty thorough overhaul. Three months later it required
attention on the River Tyne, but I have no reason to find it was
not functioning on the voyage and in any event, if it were not, itis not really material to this case so long as the transfer pump
was working properly. I find that the transfer pump worked
satisfactorily throughout the whole of the material time.
A considerable amount of time has been spent on the fact that
there was an excessive leakage of steam between Balboa and
the final breakdown. In fact, the abnormal consumption of fresh
water continued, though at a rather reduced rate (15 tons a day),
even after leaving Ponta Delgada. This was, among other
things, caused by the scoring of the I.P. valve rod and the
insufficiency of the packing in it and, as I find, in the piston rod
packings. These packings were opened up at Vancouver before
the ship sailed on her contractual voyage. The main engine H.P.
and I.P. piston rod packings and the H.P., I.P. and L.P. valve
packings were found to be in a most deteriorated condition-I
quote from the report. Something was done about it, but what
was done is not altogether clear. The chief engineer reported the
condition as bad on arrival at Vancouver after crossing the
Pacific, but he never concerned himself about the renewal of
packings once he had reported it. He left it to the repairers-he
told me so. This may have some bearing upon another aspect of
this case which I shall have to consider later. I conclude that
there was a certain amount of cobbling of these packings at
Vancouver which was satisfactory enough for a short while, but
that during the voyage such repairing as was done at Vancouver
became less effective, causing some leakage in several packings
in varying degrees.
But even so, this does not, in my view, account for all the
abnormal consumption of fresh water. It is highly probable that
after leaving Balboa and before the breakdown in the Atlantic,
and also after the departure of the Makedonia from Ponta
Delgada on Mar. 14, some mistakes were made in the pumping
of the fresh water, some of which went overboard. In my view,
it was the lack of usable fuel oil which was the immediate cause
of the breakdown.
How did this come about? I must go briefly into the history of
the voyage. On Jan. 21, 1956, theMakedonia left
Vancouver for the United Kingdom ports, laden with 8738 tons,
chiefly of timber, and general cargo. She then had a draught of
about 26 ft. 8 in. forward and 26 ft. 10 in. aft. She left with the
declared intention of bunkering at San Pedro and Colon, but infact that second bunkering port was changed and she bunkered
at Balboa. She had 123 tons of fuel oil in No. 1, which is an
undivided tank. She had about 140 tons in No. 3, which is a
divided tank, and about 60 tons in the settling tank. Nos. 2, 7
and possibly 8 were ballasted. No. 6 tank, which I think has
been referred to sometimes in this case (not by Counsel) as No.
4, contained fresh water.
The voyage to San Pedro, a distance of about 1200 miles, was
uneventful, and when she arrived there on Jan. 28, 1956, she
had used oil from No. 3; the oil in No. 1 had not been touched-
when I say No. 3 I mean No. 3 and settling tanks. At San Pedro
she took on board 643 tons of fuel oil and she left San Pedro on
the next day, Jan. 29. It was disposed as follows: No. 1 still with
123 tons of Vancouver oil; No. 2 with about 200 tons of fuel
oil. The capacity of that tank is not less than 248 tons.
According to a report made by Mr. Eleftheriou, who was one of
the engineer superintendents sent out by the defendants to
investigate matters in the Makedonia at Ponta Delgada, it was
reported to him that it was impossible to pump out the
remaining water ballast from No. 2 at San Pedro, so there was
already some indeterminate amount of sea water in that tank
when she left with fuel in it on Jan. 29. I do not think it was a
large amount. In No. 3, there was also 200 tons, and the
capacity of that tank is not less than 223 tons. In No. 7, there
was 180 tons-again short of capacity; in No. 8, 60 tons, almost
full; there was also some in the settling tank.
Upon leaving San Pedro, this vessel had a 5 deg. list to
starboard, and, during the passage to Balboa, the consumption
of fuel and water was normal. Small lists are recorded on some
days during the passage to Balboa. On Feb. 6, it is recorded that
instructions were given for No. 2 tank to be filled for the
stability of the vessel. Again I must refer, as I was so often
during the hearing, to Mr. Eleftheriou's report, and he reports
that it was claimed on one day, which was not specified, by the
engine-room crew that the fuel oil in No. 2 could not be
pumped out completely and the
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Adm. The "Makedonia" Hewson, J.
master ordered this to be pressed up due to the vessel's list of 13
deg. The log-books, to which I shall have to make further
reference in this case, were not well kept and at times I suspect
that they did not record all that occurred in this ship. I find itwas on this day, namely, Feb. 6, 1956, that, because of the list,
a considerable amount of slack oil could not be pumped out and
the tank was pressed up with sea water. After this, there is no
reference in the log-books to a list for the remainder of the
passage to Balboa.
On Feb. 11, 1956, she arrived at Balboa to bunker and, on this
day, according to the fair log, when at anchor off Balboa,
instructions were given to pump out the ballast in No. 2 and No.
4 and have them filled with oil. Now, No. 4 is not intended for
oil; it is not fitted with heating coils and it is purely a ballast
tank, so I am uncertain what is meant by No. 4. I am told it
appears as No. 4 in the original, but it is just one more mystery
in a case where many of the facts are obscure. The account in
the log-book for Feb. 11 continues: when the pumping of No. 2
was completed she took a list of 10 deg. to starboard. I find that
on this day, No. 2 was not completely pumped out, and I shall
deal with this later. On the passage from San Pedro to Balboa,
no oil had been worked from No. 1, but it had been worked
from Nos. 2, 3, 7 and 8, all of which were slack on arrival at
Balboa. It is little wonder, therefore, that the ship listed first one
way and then the other on her passage. It is agreed by the
witnesses called in this case that the proper way to work fuel
tanks in a timber ship, which is prone to be tender, is to use the
bunkers from one tank at a time to avoid slack tanks. As soon as
one is exhausted it should be ballasted while they begin to draw
fuel from the next tank. Mr. Eleftheriou said in the witness-box
that he would expect competent engineers to see to the proper
use of these tanks. It is quite obvious to me that these tanks
were worked in the worst possible way.
When the Makedonia arrived in Balboa, as I find, with about
60 tons of mixed water and fuel in No. 2, oil was taken, and, on
Feb. 12, she left with ample oil for the last stage of her voyage.
She left with about 864 tons: 123 tons in No. 1, the oil which
had originally been put in at Vancouver, and 203 tons in No. 2.
Mr. Eleftheriou dealt with the bunker situation in his report to
which I have already referred and when questioned about it he
agreed that the remainder in the tank, namely, some 32 to some
37 tons, was ballast water. There were 215 tons in No. 3, about
200 in No. 7 and 60 tons in No. 8, and also fuel oil in the
settling tanks.The situation on leaving Balboa was as follows: that the oil
run into No. 1 at Vancouver was still untouched; that the oil in
Nos. 2, 3, 7 and 8 contained a mixture of San Pedro and Balboa
oil; No. 2 of course also contained sea water.
After passing through the Panama Canal course was set across
the Caribbean Sea for the Mona Passage. She left Colon on Feb.
13, 1956, and encountered heavy weather during the next few
days. There were high head seas, sometimes described as
mountainous, and strong head winds. The result was that on
Feb. 16, the master gave up the attempt to make for the Mona
Passage and decided to make for the Windward Passage,
apparently to bring the wind and sea from ahead to broad on his
starboard side to assist him in making better headway. I have,
after considering the evidence in the log-books and afterhearing the evidence of the surveyors, come to the conclusion
that, by Feb. 17, oil and water in No. 2 became emulsified and
that thereafter those on board the Makedonia were unable to
obtain burnable oil from this tank.
The record of the use of oil from the double bottom tanks is
incomplete. As I have already said, no proper records were
kept. This, in my view, was a grave reflection on the engineers.
There were no systematic soundings of the fresh water or fuel
tanks, and little confidence can be placed in such records as
were kept, and little confidence can really be placed in such
messages as were sent. The experts, with such facts as are
available, have been unable to agree upon the order in which
these tanks were worked. Mr. Eleftheriou, who investigated the
matter, as I have said, on arrival at Ponta Delgada, said in hisreport that during the passage from Balboa to the Azores there
were many manoeuvres of the tanks; the drawing and filling of
different tanks which he was unable to ascertain. The chief
engineer, who gave evidence in this case, could remember very
little that was helpful.
In the course of that last stage of the voyage, oil was used
from No. 1 and apparently gave full satisfaction; some was used
from No. 8, some from No. 3 and some
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Adm. The "Makedonia" Hewson, J.
from No. 7. It may well be, too, that before the emulsification
was established, oil from No. 2 was also burned.
At some stage during that part of the voyage, while ballasting
No. 1 to increase the stability of the vessel, probably on Feb.22, when the vessel listed 13 deg. to port, the valves of Nos. 2
and 3 tanks were opened and sea water was run or taken into
them as well as into No. 1. It is suggested on the strength of a
message sent on Mar. 1, that No. 7 port valve was also open.
This message reads:
. . . SEVEN PORT NO GOOD THREE PORT NO GOOD NOW
TRY THREE STARBOARD . . .
Previous cables to which I have been referred indicated that oil
had been worked at some stage from No. 7- that is a message
which was sent on Feb. 27, the message which I have already
read, in which it says that "only clean fuel of 150 tons" was in
No. 7. The valve to No. 7 port may well have been open and, as
time went on and as oil was used from it, they were unable any
further to cope with the water in No. 7 port.I h