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[Privy Council.]
Present: Lord Dunedin, Lord Sumner, and Lord Wrenbury.
183—D. C. Colombo. 953.Grown—Claim against Government of Ceylon—Contract with harbourauthority—Ship grounding in Colombo Harbour—Negligence ofpilot—Ordinance No. 4 of 1889, 8. 11.
Where damage was caused to a ship by its taking ground inthe Colombo Harbour in a berth to which it had been taken bya Government pilot, and where, it appeared, that the damagewas due to the ship being negligently moored by the pilot in aberth in which the ship would otherwise have been safe.
Heldt that the action failed since, if it was based on a contractwith the Government of Ceylon, it would only be a contract toprovide a berth to which it was safe to go ; and if the ship wasimproperly moored by the pilot, the Government was exemptfrom liability for his negligence by section 11 of Ordinance No. 4of 1889.
PPEAL from a judgment of the Supreme Court. The BritishPetroleum Company, Limited, sued the Attorney-General as
representing the Government of Ceylon, in the District Court ofColombo, to recover damages sustained by the steamship “ BritishEnsign ” in the Colombo Harbour. The learned District Judg^gave judgment for the plaintiffs, but on appeal the Supreme Courtdismissed the action. The facts appear from the judgment ofthe Judicial Committee.
December 16, 1925. Delivered by Lord Dunedin :—
The ss. “ British Ensign/* belonging to the plaintiffs and appel-lants, laden with benzine, arrived outside the harbour of Colombo,on a voyage from Rangoon to Suez for orders, on September 10.1919. She needed bunker fuel and consequently wished to enterthe harbour for that purpose. She signalled for a pilot and a pilotcame off, who proceeded to put her into a berth in the harbour.She was moored to certain stationary buoys in the harbour. Inall the manoeuvres required to place her in the berth, she was under*the charge of the pilot. She took in the fuel required, and nextmorning essayed to leave the berth. It was then found that shehad taken the ground at the stem. After some ineffectual effortsto free her from the ground she was eventually got off at high tide
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BritishPetroleumCompany,Limited v.TheAUomey•General of(‘eylon
and proceeded on her voyage. Before she started from the harboura perfunctory examination was made of her hull, so far as couldbe seen or felt by divers, and it was not thought that she hadsustained any injury, but eventually, when she came to Englandand was dry-docked, it was found that her stern and some of theplates of her hull had been severely injured. The plaintiffs thenraised the present action against the defendant, the Attorney-General of Ceylon—the Government of Ceylon being the harbourauthority of Colombo—for the damage done.
The harbour of Ceylon is a roadstead which has been artificiallyturned into a harbour by the erection of breakwaters which hasconverted it into a closed area of 640 acres. The erection ofthe breakwaters was effected under various Ordinances havingthe authority of law, which constituted the Government the harbourauthority and gave them rights and imposed duties. Under theOrdinances no vessel may enter without a pilot. When entered,she is directed to a berth and the pilot takes her there. A pilotalso takes her away from the berth and out to sea. A tariff ischarged, which varies according to services rendered and the sizeof the ship. It is not necessary to go into particulars because it iscommon ground that the “ British Ensign ” in respect that sheonly entered for coaling (liquid fuel being held as equivalent tocoal) and taking in water, fell to be charged a special consolidatedrate of Rs. 200 for a stay not exceeding 96 hours.
The so-called berths in the harbour are rectangular spaces whichare marked by means of numbered buoys. The buoys at the partof the harbour, with which the case has to do, are placed in pairs,east and west, at a distance of 600 feet: The distance betweeneach pair is 400 feet, and the line between each pair of buoysrepresents the middle line of a berth. In other words, each berthis represented by a parallelogram 600 by 400. The berth to whichthe “ British Ensign ” was sent was numbered No. 21, and thecentre line buoys were marked, 43 being the eastmost and 33 thewestmost, respectively. After complaint was made and beforethe trial of the action, very minute inspection by divers was madeof the place in which the ship had taken the ground. It thenbecame apparent that in the neighbourhood of buoy 43 there wasan irregular boomerang-shaped piece of rock such as would easilyaccount for the injuries on the ship’s bottom if she were allowedto rest on it.
The plaintiffs accordingly contend that by accepting a fee fromthem for the entry to the harbour and berthing of their ship, theharbour authority impliedly contracted to give the ship a safeberth ; that the berth provided and to which the ship was com-pulsorily obliged to go wa3 not safe, and consequently the harbourauthority is liable in damages. The defendant, on the other hand,contends that no contract had been entered into by him or could
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be inferred against him by the mere taking of dues which, byOrdinance equivalent to statute, he was obliged to charge. Further,he said that the berth provided was, in fact, a safe berth for theship, in the sense that a ship properly placed within the limits ofNo. 21 would be safe, but that the ship was improperly placed inrespect that the soundings, which were well known to the pilot,indicated not indeed a rock but a shallow patch where the rockwas, and that a ship should not have been placed there. Further,he said that in any view, even if a contract was held against him,the failure to keep the ship safe was a tort, and the Governmentof Ceylon, which is just another name for the Crown, is not liablefor torts; and, further, if with or without a contract the faultin putting the ship in an unsafe position was the fault of thepilot he (the defendant) was specially excused by section 11 ofOrdinance No. 4 of 1899, which is in these terms :—
“11. The Governor or the owner or master of a ship shall notbe answerable to any person whatsoever for any loss ordamage occasioned by the fault or incapacity of any pilotacting in charge of that ship within the limits of any portbrought under the operation of this Ordinance.”
To this the plaintiffs replied that section 11 bad not the effectcontended for, and that by Roman-Dutch law the Crown is answer-able in tort. The learned trial Judge found for the plaintiffs.He found that in respect of the decision in such cases as Pamaby v.Lancaster Canal Company,* Gibbs v.Mersey Docks,2 “The Moorcock’’2Francis v. Cockrell,4 Lax v. The Corporation of Darlington,8 therewas to be inferred a contract from the payment of the dues ; thatsuch contract was to provide a safe berth ; and that the non-provision of a safe berth was a breach of contract and not tort.As to the latter point, he also founded on an obiter dictum in the.judgment of this Board in the Scrutton & Sons v. The Attorney-General of Trinidad,® As to the Crown being free from liability intort, the question in his view did not arise. Had it been so hewould have been bound by the decision of the Court of Appeal inThe Colombo Electric Tramway Company v. The Attorney-General.7
Appeal being taken to the Appeal Court, this judgment wasreversed, and the action dismissed. The Chief Justice held thatthere was no contract and discriminated the cases quoted on thepoint in respect that in them there was an invitation to the shipor to others to avail themselves of the services offered; whereashere the ship entered the harbour as of right, and what she paidwas a mere due or toll, and not a consideration for a contract. Thatbeing so, the fault, which in fact, he ascribed to negligent berthing
» 11 A. <fe E, 223.* (1870) L. R. 5 Q. B. 501.
* (1804) 11 H. of L. 686.* (1879) L. R. S Ex. D. 28.
» (1889) 14 P. D. 64.‘ (1920) 90 L. J., P. V. 30.
7 (1914) 16 N. L. R. 161.
BritishPetroleumCompany,Limited v.TheAttomey-General ofCeylon
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BritishPetroleumCompany,Limited v.TheAttomey-Qencral ofCeylon-
by the pilot was a tort, and therefore the Crown was not liable,as in the case of The Colombo Electric Tramway Company aboveqouted.
The other learned Appeal Judge rested his judgment upon adifferent ground. He was not inclined to say there might not bea contract. But the fault he held was the fault of the berthingpilot, and then whether that fault was looked on as a breach ofcontract or a tort, in either case the Government was freed bythe terms of section 11.
Their Lordships were favoured with a careful and interestingargument on the various points of law which may be gatheredfrom the contentions of the parties and the opinions of the learnedJudges above set forth. They think, however, that it is necessaryfirst to come to a clear conclusion as to the facts, and it will thenbe apparent what points of law are necessary to be determinedfor the decision of the case.
There is no question but that the vessel in being berthed wasentirely under the control of Pilot Sorensen, and that he wasdirected by the Master Attendant, whose orders in that matter hewas bound to obey, to place the vessel in berth No. 21. NowSorensen, as all other pilots, was in possession of a chart showingthe soundings all over the harbour and with this chart he wasvery familiar. That chart showed in the immediate neighbour-hood of buoy 43, that is to say, the eastmost or shoreward end ofthe berth, that there was what has been called a shallow patch.The exact extent of the patch he did not know because the shallowpatch was outside the 30-feet contour line, and the soundingswhich were shown individually are at distances of 50 feet fromeast to west and 200 feet from north to south. Within 100 feetto the north of 43 there was a sounding of 23*9 feet, and to thewest of that two others of 23*3 and 24*3 respectively. Afterthat, continuing to the west, came the contour line of 30 feet.The length of the “ British Ensign ” was 430 feet and her draughtas she arrived at her moorings 25*6 forward and 24*10 aft. Withthe filling up of the oil, her draught aft would slightly increase.Sorensen was fully aware of the shallow patch and says he wouldnot have placed the stern of the vessel over it. An examination ofthe position, in the light of the accurate soundings, showed thatthere was quite room to place a ship of the size of the “ BritishEnsign ” in the berth without its stem being over the shallow patch.As a matter of fact, Sorensen thought he had left the vessel clearof the patch. The ship is moored by an anchor to the west andby a cable from each of the two buoys. The buoy is capable ofbeing pulled to a certain extent towards the ship. What seems tohave happened is that there was a mistake made, either by one of theship’s crew, unnoticed by Sorensen, or by Sorensen himself, as tohow many shackles of chain were out from the ship towards the
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anchor. The result was that the ship was not pulled up sufficientlynear to buoy 33, a position which would have cleared her sternfrom the shallow patch. All the pilots examined speak to theshallow patch. They all say that berth 21 was fit for a ship ofthe size of the “ British Ensign ” if properly placed, and this wasnot cross-examined to by the plaintiffs. The truth is that theplaintiffs rested their claim on the idea of a contract for a safeberth in fact, and considered’that if the actual position to whichthe ship was conducted by the pilot, appointed by the harbourauthority, turned out to be unfit they were entitled to succeed.
In this state of the facts, which is in accordance with the viewsof the Court below, it seems to their Lordships, that it is quiteunnecessary to decide many of the legal questions raised. Inparticular, they need not decide the question as to whether, lookingto the position of the harbour authority as distinct from privatepersons owning a wharf or premises, there was a contract. Assum-ing that there was a contract, it would only be a contract to providea berth to which it was safe to go. The ship was improperlymoored therein. That was either the fault of the pilot or theship’s crew (if they moved the ship after the pilot left them). Ifit was the fault of the ship’s crew it was not the fault of the re-spondent. If it was the fault of the pilot, then their Lordships holdthat the harbour authority is excused by reason of section 11, andthat irrespective of whether the fault was breach of contract or a tort.
As to section 11 their Lordships agree with the Court of Appeal.The words are absolute and without exception. There is nothingin the section to cut it down to questions only arising betweenthe persons mentioned and persons not mentioned, excluding allquestions which may arise between the persons mentioned inter se.Looking to the position of the harbour authority who were notlike a private trader catering for trade, but were obliged to furnishfacilities, it is not a section which need cause surprise or exciteanxiety to restrict its operation.
For these reasons their Lordships are of opinion that the appealfalls to be dismissed and they give no opinion as to the generalquestions raised. They would, however, wish to remark thatas to the question of whether the Roman-Dutch law differs fromthe English in holding that the Crown may be liable for a tort,inasmuch as the matter has been often mooted and has beensolemnly settled by the case of the Colombo Electric TramwayCompany {supra), and inasmuch as the question in Ceylon is alwaysnot only what is Roman-Dutch law, but how far has any part of itbeen recognized in Ceylon, they would require very clear argumentsto induce them to reverse the Court of Appeal on such a matter.
Their Lordships will, therefore, humbly advise His Majesty todismiss the appeal, with costs.
BritishPetroleumCompany,L imited v.The Attorney-General ofCeylon
Appeal dismissed.