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THE CEYLON STEAMSHIP Co. v. DE JOHN & SONS.D. C.t Colombo, 21,612.
Shipping dangerous goods—Damage—Absence of declaration—Rule, forassessing damages—General average—Expenses of adjustment.
Where a person ships on board goods of a dangerous character,without making any declaration as to such goods, he commits abreach of the Common Law; and he is liable- in all damages whichare the natural consequences of his wrong-doing,, whether of ageneral average character or not; he is also liable both for contri-bution allocated to the ship, and for the expenses incidental to itsadjustment.
PPEAL by the defendants.
The facts are fully set out in the judgment of Wood Benton, J.
Domhorst, K.G. (Sampayo, K.C., with him), for defendants,appellants.
H. J. C. Pereira, for plaintiffs, respondents.
Gur. adv. vult.
19th January, 1906. Wood Renton, J.—
In this case the material facts are not in dispute, and the onlyquestion that we have to decide is a question of damages. Theappellants, who carry on business as chemists in Pettah in Colombounder the style of Messrs. Philip T. de John & Sons, shipped on boardthe respondent company’s steamer “ Lady Gordon, ” for transmissionto Jaffna, a case containing two jars of nitric acid. No declarationwas made by the appellants as to the contents of the case. The11 Lady Gordon ” had a quanitity of other cargo on board. Someof the nitric acid escaped from the appellants* jars, and while thesteamship was still lying in Colombo harbour a fire broke out in thehold. Water was pumped into the hold in order to .extinguish thefire and save the cargo and the ship, and damage was done to the cargoin the process. The appellants admit that the fire was due to theescape of the nitric acid. They admit also, what is abundantly clearon the authorities (see Williams v. East India Company (1802)3 East, 192 and Brass v. Maitland (1856) 6 E. & B. 470), that in failingto notify to the respondent’company the dangerous character of thegoods which they sent on board the “ Lady Gordon tf for conveyanceto Jaffna they committed a breach of a duty incumbent upon themat Common Law. They concede further what I think is incontesta-ble—that they a/e responsible to the company fpr all the damagenaturally flowing from their wrongful act.
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The question that we have now to determine is, what is the propermeasure of damages to be applied? Two alternative answers to thisquestion have been put before us for acceptance. On the onehand, the respondent company» maintain—and the learnedDistrict Judge has given effect to the contention—that the default}f the appellants necessitated an adjustment of general average, andthat the appellants are liable to them for the contribution allocatedthereby to the ship and for all expenses incidental to such adjustment,as well as for any additional expenditure, whether of a generalaverage character or not, which they were compelled under thecircumstances to incur. The Steamship Company have, in fact,acted throughout on this view of the law. As soon as the damagewas done, marine surveyors were called in to advise. The cargo wasdealt with in accordance with their recommendations. The generalaverage contribution was adjusted. Of the various heads of thetotal expenditure I shall speak presently. In the meanwhile I amconsidering only the question of principle involved. On the otherhand, the appellants contend that in a case where a sacrifice or expen-diture, which might otherwise be a general average act, has beenrendered necessary by the misfeasance or non-feasance of an ascer-tained wrong-doer, and particularly of a wrong-doer who admits hisliability—there is no need, and consequently no justification, for anapportionment of general average contribution, and that they areresponsible for the actual damage resulting from their default andfor that alone.
In my opinion the decision of the learned District Judge, alike onthe law and on the facts in the present case, is sound and should beaffirmed. In support of the argument that there should have beenno adjustment of general average in the present case, Mr. Sampayoand Mr. Domhorst referred us to the decisions already mentioned InWilliams v. East India Co. and Brass v. Maitland. These cases aredirect authorities only for the proposition that the shippers of dan-gerous goods are bound at Common Law to notify their character tothe owner of any ship on board of which they are sent for conveyanceas cargo. But counsel for the appellants sought to deduce from theman argument in favour of their clients in this way. In each of thesecases there was a breach—similar to that with which we have here todeal—of a shipper’s. Common Law duty to declare the character ofdangerous cargo. In each case the form of action adopted wasthat of an ordinary action for damages. Ho suggestion was madethat an adjustment of general average was either necessary or proper,and in deciding Brass v. Mott land the Judges held that the negligentshipper would be answerable to the shipowner for tHe actual damages
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resulting from his wrongful act or omission. It appears to me thatthe authorities in question do not justify the use which the appellantsseek to make of them. In both cases the Courts were exclusivelyconcerned with the Common Law obligation of the shippers of dan-gerous cargo. The question of the measure of damages did not ariseand Was in no way discussed. Moreover, as Mr. H. J. C. Pereira,counsel for the respondent company, pointed out, neither inWilliams v. East India Go, nor in Brass v. Maitland was any sacri-fice or expenditure of a general average character made or incurred.That here, as there, anaction of damages -wastheproper
remedy, there is, and canbe, no contest. Thesoleissueis as
to'the measure of damages where an act of general average hasintervene^; and on that issue neither of the authorities on which(the appellants rely throwany light. There is,however,direct
authority on the other side. That, apart from the question of thelegal effect of the identity of the wrong-doer being known, and hisliability admitted, flooding of the hold of a ship for the purpose ofextinguishing a fire whichis endangering bothshipandcargo
is a general average act, is clear (see Whitecross Wire Go. v. Savill(1882) 8 Q, B. D, 653). Moreover, where a general average loss hasbeen incurred, a shipowner may render himself liable in damagesto the consignees of cargo for delivery of the cargo without takingthe necessary steps to procure an adjustment of average and securingits payment (Crooks v, Allan (1879) 5 Q. B. D. 38).
Do these principles cease to be applicable when the act or omissionwhich causes the sacrifice or the expenditure is attributable to aknown and acknowledged 'wrong-doer? It appears to me that thisvery question was raised and answered in the negative in the caseof Strang Steel & Go, v, Scott & Co, (1889) 14 App, Gas, 601, anappeal to the Privy Council from the Court of the Recorder of Ran-goon. In that case a ship was stranded through the negligence ofher master, and thereby ship and cargo were placed in a position ofsuch imminent danger as to make it prudent and necessary to jettisonpart of the cargo. It was argued—and argued successfully—beforethe Court in Rangoon "that as the jettison was 1 occasioned by theacts of the master, no-claim for general average contribution couldbe enforced. But it was held in appeal that the innocent ownersof the jettisoned cargo were entitled to general average, althoughno such right belonged to the owners of the ship unless their ordinaryrelations to the shippers—as to this point see Catron Park (1890)15 P. D. 203, and Milbum v. Jamaica Fruit Import and TradingCompany of London (1900) 2 Q. B, 540—had been varied by contract.The appellants’ counsel endeavoured to distinguish this case on the
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ground that the decision turned on the fact of the negligenceJammy 19. being that of the master. I cannot find any such limitation of theWood scope of the decision either in the judgment itself or in the argu-Renton J. mentg or in the facts. On the contrary, Lord Watson, who deliveredthe judgment of the Judicial Committee, seems to me expressly to.state (ubi sup. at p. 609) as the ratio decidendi the proposition that the*bdsis of the right to contribution is not “ the cause of the danger tothe ship/' but “ its actual presence/' “ The innocent cargo owners,"he adds, dealing with the specific case before him, “ were not privyto the master’s fault, and were under no duty, legal or moral, tomake a gratuitous sacrific of their goods for the sake of othersin order to avert the consequences of his fault. ” It appears to methat every line of this reasoning applies with equal force whether thecause of the danger which called for the general average act was thenegligence of the master or the fault of one of the cargo owners.The. shipper in default may have no claim to contribution. Buthis wrong-doing is not to prejudice the rights of bis innocent co-owners, nor does it relieve the shipowner of the duty to protect theirinterests by an adjustment of general average. There remains onlythe question of the propriety of some of the heads of expenditurewhich the respondent, company have by the judgment in theCourt below recovered from the appellants.
In considering this aspect of the case we must keep in view, thefindings of law already arrived at, viz., that the appellants areliable for all the natural , consequences of their wrong-doing,whether of a general average character or not, and that they areliable also both for the contribution allocated to the ship and for theexpenses incidental to its adjustment. It should be premised furtherthat the appellants take exception, not to the amount, but to thepropriety only, of the challenged heads of expenditure. The itemsin dispute are these: —
The expenses of the preliminary survey. These fall clearlyunder the first head of liability. I agree entirely with the learnedDistrict Judge that It is the duty of a shipowner who finds himselfin the position in which the respondent company were placed tocall in competent marine surveyors without delay. Where thecircumstances creating that duty are traceable to the default of ashipper the expenses of the survey are in law the reasonable conse-quences of such default.
The expenses of the adjustment itself. These include thecommission of the adjustor and the cost of printing the adjustment.In my opinion both items are proper. It was found necessary,owing to the fact ’that there are no expert adjustor* in Colombo, to
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employ one in Calcutta. Each of the cargo owners was entitled toa copy of the adjustment—a course of business which has obvious January lfl-advantages, by the way, from the standpoints of expedition and Woodaccuracy of reproduction. In the ordinary course of business such Renton' J’documents are printed. Even if these considerations did not arise, ,the printing bill amounts only to Bs. 139.50. The appellants wouldscarcely desire us to involve them in the oosts of a re-adjustmentfor the sake of so small a sum. Messrs. Julius & Creasy’s fees inconnection with the preparation of the average bond and similarmatters belong to, and are justifiable under, the same category ofliability.
£8) Lastly, we have a miscellaneous group of items partly ofa general average character under the head of expenditure properlyreferable to the appellants’ default. To the former class belong thecommissions on the collection of deposits at Jaffna, Trincomalee,.and Batticaloa (see Crooks v. Allan (1879) 5 Q. B. D. at p. 427)and commission to Messrs. Walker & Sons in connection withthe adjustment; to the latter, the cost of telegrams in regard tothe disaster, the expenses of advertising certain cargo for sale,and the services of Customs officers on account of cargo discharged.
If the warehousing of cargo and the forwarding of cargo to its des-tination are—in view of the decision of the House of Lords inBvendsen v. Wallace (1885) 10 App. Cos. 409; 13 Q.B.D. 69 (but on thispoint fjee Atwood v. Sellar (1880) 4 Q.B.D. 342, 5 Q.B.D. 286; CarverCarriage by Sea, 2nd .edition (1891) 403; Amould, Ma/tine Insurance, 7thedition, II., sections 947, et seq.)—not to be regarded as attributable togeneral average, they are at all events reasonable and proper stepsin the situation with which the respondent company were confronted,and the appellants must bear the cost of them. The fact thatthe cargo was forwarded by the company’s own ships—portion of itindeed by the “ Lady Gordon ” herself—is, I think, immaterial,inasmuch as, but for the appellants’ default, they might have earnednew freight as regards those portions of the ship which were occupiedby the original cargo in the subsequent voyages.
In my opinion the appeal must be dismissed with costs.
Layahd, C.J., agreed.
THE CEYLON STEAMSHIP Co. v . DE JOHN & SONS