Smith Hogg & Co Ltd v Black Sea & Baltic General Insurance Co Ltd

ViscounT MAuGHAM. My Lords, I had
prepared an opinion on this appeal before I had the advantage
of reading the opinions of my noble and learned friends Lord
Wright and Lord Porter. I find in those opinions all the
remarks which I had proposed to address to your Lordships,

A. ¢. AND PRIVY COUNCIL.

and in order to save your Lordships' time I merely say that
I agree with those opinions and with the necessary conclusion
that this appeal must be dismissed with costs.

Lorp Wricut. My Lords, my noble and learned friend
Lord Atkin requests me to say that he has read in print the
opinion which I am about to deliver and agrees with it.

Lorp Wricut. My Lords, the appellants, who are owners
of the steamship Lilburn, claimed in the action a general
average contribution from the respondents who, for purposes
of the case are treated as standing in the shoes of the
charterers, Exportles Moscow, under a charterparty dated
July 24, 1935. The respondents resisted the claim on the
ground that the Lilbuvn was unseaworthy on sailing from the
loading port Soroka and that the appellants had not exercised
due diligence to make her seaworthy, and that the average
act was occasioned by the unseaworthiness, as also was the
loss of and damage to cargo for which they counterclaimed.
Branson J. who tried the case in the Commercial Court decided
in favour of the appellants, but his decision was reversed by
the Court of Appeal.

Both Courts decided that the steamship was unseaworthy
on sailing and that the appellants had not exercised due
diligence to make her seaworthy. But whereas Branson J.
held that the unseaworthiness did not cause the loss, the
Court of Appeal held that the cause of the disaster was the
unstable and unseaworthy condition of the vessel, which was
due to a failure to exercise due diligence.

There are thus concurrent findings on the fact of the
unseaworthiness. This House is not debarred from re-opening,
and, if so advised, reversing, concurrent findings of facts of
the Courts below, though the House will always treat such
findings with respect. In the present case I have, after
carefully considering the evidence, come to the conclusion
that there is no ground for differing from the findings of the
Courts below. I shall state very shortly why I agree with
these findings. The charterparty provided for the loading at

999

H. L. (E.)

1940
——
SMITH,
Hoce & Co.
Us
Brack SEA
AND BALTIC
GENERAL
INSURANCE
Cot

1000

HL. (E-)
1940
ad

SMITH,
Hoce & Co.

v.
Brack SEA
AND BALTIC
GENERAL
INSURANCE
'Go;

Lord Wright.

HOUSE OF LORDS [1940]

Soroka of a full and complete cargo of wood goods, including
a deck load not exceeding what the vessel could reasonably
stow and carry, to be delivered at Garston. Of the other
conditions contained in the charterparty it is only necessary
to refer to certain exceptions set out in clause 12, in particular
that the shipowner should not be liable for loss or damage
resulting from unseaworthiness unless caused by want of due
diligence on the part of the shipowner to make the vessel
seaworthy ; and also that the shipowner should not be
responsible for loss or damage arising from (amongst other
things) act, neglect or default of the master in the navigation
or management of the ship or from perils, dangers and accidents
of the sea. General average, if any, was to be settled in
London according to the York-Antwerp Rules, 1924, in
accordance with English Law.

The Lilburn loaded at Soroka 703,111 St. Petersburg
standards of timber, of which 255,232 were on deck. The
master shut out about nine standards, because, as the judge
found, instability had already manifested itself by the vessel
listing about five degrees to port during the loading of the
last few slings of cargo. The Lilburn sailed with that list.
On sailing she had no appreciable metacentric height ; indeed
she had it seems a small negative metacentric height. The
weather on the voyage was not exceptional, the highest force
of wind being force seven on two days. But as the voyage went
on the port list increased to eight or nine degrees, and two
days after that happened she went over to starboard with a
list of seven degrees, which increased to twelve degrees, then
to fifteen and then to seventeen degrees, which was her
condition when she put into Stornoway to replenish her
bunkers, of which she had then only four tons left. She had
started from Soroka with insufficient bunkers and was in that
respect unseaworthy but no point has been made of this,
and IJ ignore it. On entering Stornoway to coal, the forepeak
was pumped out, as she was considerably down by the head.
That obviously would increase her tenderness. In order to
bunker she was moored with her port side alongside a coal
hulk. No deck cargo was removed before bunkering. When

A. C. AND PRIVY COUNCIL.

about sixteen tons had been put into her bunkers, which was
done as nearly as possible in the midship section of the ship, she
started to come upright. She then went over to port and when
the port list had reached about twenty-five degrees water
poured into her and eventually she lay on her beam ends.
Her crew had to leave her. She was put on the beach with
the help of tugs, the deck cargo was discharged, portions were
lost or damaged, but the balance was reshipped, and she was
towed to Garston with the rest of her cargo, some of it being
in a damaged condition.

There was some conflict of expert evidence, but it seems
clear that the deck cargo rendered the vessel unstable and
too tender for the voyage. It is true that she could not sink
because the timber would keep her afloat, but she was liable
to fall, as she did in fact, on her beam ends, and become a
derelict. She was clearly unfit to carry and deliver the cargo
safely and her condition endangered the lives of the crew.
She was unseaworthy on any definition of the term. It was
sought to say that the disaster at Stornoway was due to the
act of the master in putting in the bunkers as he did, and in
pumping out the forepeak. It was said that his action in
these respects was negligent, and, also, it may be, that he
began to bunker her without discharging or reducing the deck
cargo. There is no clear finding that the master was negligent.
But whether he was negligent or not, what the master did
could have done no harm if the Lilburn had not been unsea-
worthy. The unseaworthiness, constituted as it was by
loading an excessive deck cargo, was obviously only consistent
with want of due diligence on the part of the shipowner to
make her seaworthy. Hence the qualified exception of
unseaworthiness does not protect the shipowner. In effect
such an exception can only excuse against latent defects.
The overloading was the result of overt acts.

On these facts Branson J. decided in favour of the appellants.
Though he held that the vessel was unseaworthy and the
warranty had been broken, the unseaworthiness did not in
his opinion cause the loss. He held that the necessary nexus
between the unseaworthiness and the disaster was absent

ALcG.. 1940, 3 32

IOO.L

H. L. (E.)
1940

~~
SMITH,
Hoce & Co.

Vv.
Briack SEA
AND BALTIC
GENERAL
INSURANCE
Co.

Lord Wright.

I002

He Ln (E)
1940
—

SMITH,

Hoce & Co.

v.
Back SEA
AND BALTIC
GENERAL
INSURANCE

Lord Wright.

HOUSE OF LORDS [1940]

because in his opinion the vessel could have been bunkered
at Stornoway in such a manner as to bring her back to upright
and enable her to proceed and deliver her cargo at Garston.
He distinguished Paterson Steamships, Ld. v. Canadian Co-—
operative Wheat Producers, Ld. (1), on the ground that there
the defect could not have been remedied during the voyage.
He held that the accident took place not by reason of the
unseaworthiness of the ship but by reason of the acts of the
master which were wrong in the circumstances and that the
appellants were entitled to succeed by reason of the exception
in clause 12, ''act neglect or default of the master."" He did
not in terms find that the master was negligent ; though
perhaps that is implied. Earlier in his judgment, however,
he had described the putting on board of the 16 tons as done
"in a very ordinary way."

This decision obviously raised a very important question of
mercantile law. It was reversed by the Court of Appeal.
MacKinnon L.J. in giving the leading judgment, agreed with
the finding of Branson J. on the issue of unseaworthiness.
He held that the cause of the disaster was clearly due to the
unstable condition of the vessel on sailing from Soroka, which
had continued right up to the disaster, and all that could be
said about the master's conduct at Stornoway was that his
act, or default, conduced to the disaster either by his not
doing something, or by his doing something which might have
been done differently, to prevent the disaster, either in pumping
out the forepeak or putting in the bunkers as he did. In his —
opinion the test to apply—following Kopitoff v. Wilson (2) |
was "although the disaster at Stornoway would not have
"happened but for the fact that coals were being loaded with

"the forepeak pumped out, yet it is to be considered as caused — |

"by the unfitness if the jury (or judge) think the vessel would
"not have capsized if she had sailed in a fit state from Soroka."
He held accordingly that the appellants could not recover in
respect of the general average loss and expense, but were
liable on the counterclaim. du Parcq L.J. concuired. But
he doubted what the proper answer would have been if, there

(1) [1934] A. C. 538. (2) (1876) 1 Q. B. D. 377.

A. C. AND PRIVY COUNCIL.

having been a clearly negligent act on the part of the master,
coupled with unseaworthiness, the question was whether the
loss was caused by the former or the latter, or by both. But
he thought that the conduct of the master was perfectly

excusable. Macnaghten J. gave no separate judgment. I

agree with MacKinnon L.J.'s statement of the law but in
view of the considered opinion of Branson J., I feel it desirable
to state in my own way how I regard this question of law,
which is fundamental in regard to the sea carriage of goods.
I do not, with respect, share du Parcq L.J.'s doubts, which
I think are really inconsistent with the reasoning of
MacKinnon L.J.

Sir Robert Aske has strenuously contended on behalf of the
appellants, that the master's action, whether or not negligent,
was "' novus actus interveniens,'' which broke the nexus or
chain of causation, and reduced the unseaworthiness from
"causa causans'' to "causa sine qua non." I cannot help
deprecating the use of Latin or so-called Latin phrases in
this way. They only distract the mind from the true problem

'which is to apply the principles of English law to the realities

,

of the case. '' Causa causans"' is supposed to mean a cause
which causes, while "' causa sine qua non "' means, I suppose,
a cause which does not, in the sense material to the particular
case, cause, but is merely an incident which precedes in the
history or narrative of events, but as a cause is not in at the
death, and hence is irrelevant. English law can furnish in its
own language expressions which will more fitly state the
problem in any case of this type. Indeed the question what
antecedent or subsequent event is a relevant or decisive cause
varies with the particular case. If tort, which may in some

respects have its own rules, is put aside and the enquiry is

limited to contract, the selection of the relevant cause or
causes will generally vary with the nature of the contract.
I say '' cause or causes'"' because as Lord Shaw pointed out in
Leyland Shipping Co. v. Norwich Union Fire Insurance Co. (1),
causes may be regarded not so much as a chain, but as a net-
work. There is always a combination of co-operating causes,

(1) [1918] A. C. 350, 369.
3 3Z2

1003

H. L. (E.)
1940

~~
SMITH,
Hoae & Co.

v.
Brack SEA
AND BALTIC
GENERAL
INSURANCE
Co.
Lord Wright.

1004

H..L. (E.)

1940

~—
SMITH,

Hoce & Co.

v.
Buiack SEA
AND BALTIC
GENERAL
INSURANCE
Co.

Lord Wright.

HOUSE OF LORDS [1940]

out of which the law, employing its empirical or common sense
view of causation, will select the one or more which it finds
material for its special purpose of deciding the particular case.
That thisis the test of the significance of an event from the stand-
point of causation is clearly illustrated by this very doctrine
of seaworthiness and its relation to kindred questions of
negligence as applied to the two maritime contracts, marine
insurance and sea carriage of goods. In the former, unsea-
worthiness is a condition precedent (at least in voyage policies)
and if not complied with the insurance never attaches. In
carriage of goods by sea, unseaworthiness does not affect the
carrier's liability unless it causes the loss, as was held in
The Europa (1) and in Kish v. Taylor. (2) Again, in marine
insurance, negligence causing the loss does not in general affect
the insured's right to recover. In carriage of goods by sea,
the shipowner will in the absence of valid and sufficient
exceptions be liable for a loss occasioned by negligence. Apart
from express exceptions, the carrier's contract is to deliver
the goods safely. But when the practice of having express
exceptions limiting that obligation became common, it was
laid down that there were fundamental obligations, which were
not affected by the specific exceptions, unless that was made
clear by express words. Thus an exception of perils of the
sea does not qualify the duty to furnish a seaworthy ship or
to carry the goods without negligence: see Paterson Steam-
ships, Ld. v. Canadian Co-operative Wheat Producers, Ld. (3)
From the nature of the contract, the relevant cause of the
loss is held to be the unseaworthiness or the negligence as the
case may be, not the peril of the sea, where both the breach
of the fundamental obligation and the objective peril are
co-operating causes. The contractual exception of perils of
the seas does not affect the fundamental obligation, unless
the contract qualifies the latter in express terms.

To consider these rules, in relation to unseaworthiness, I

think the contract may be expressed to be that the shipowner - |

will be liable for any loss in which those other causes covered

(1) [1908] P. 84. (3) [1934] A. C. 538.
(2) [1912] A. C. 604.

A. C. AND PRIVY COUNCIL.

by exceptions co-operate, if unseaworthiness is a cause, or if
it is preferred, a real, or effective or actual cause. The law
is, I think, correctly stated by the late Judge Carver in
Carriage of Goods by Sea, s. 17. I quote from the fourth
edition, published in 1905, which was the last edition revised
by the learned author. The words of the section are: 'And
"further the shipowner remains responsible for loss or damage
"to the goods, however caused, if the ship was not in a
"seaworthy condition when she commenced her voyage and
"if the loss could not have arisen but for that unseaworthiness
iu If her unfitness becomes a real cause of loss or
"damage to the cargo, the shipowner is responsible, although
"other causes from whose effect he is excused either at
"common law or express contract have contributed to cause
"the loss."" The author relied for that proposition not only
on Kopitoff v. Wilson (1), cited by MacKinnon L.J., but on
The Glenfruin (2), Steel v. State Line Steamship Co. (3) In
truth, unseaworthiness, which may assume according to the
circumstances an almost infinite variety, can never be the
sole cause of the loss. At least I have not thought of a case
where it can be the sole cause. It must, I think, always be
only one of several co-operating causes. The importance to
my mind of Carver's statement is that it uses the indefinite
article, a' cause," not the definite article, '" ' the' cause."
In this connection I can draw no distinction between cases
where the negligent conduct of the master is a cause and cases
in which any other cause, such as perils of the seas, or fire, is
a co-operating cause. A negligent act is as much a co-operating
cause, if it is a cause at all, as an act which is not negligent.
The question is the same in either case, it is, would the
disaster not have happened if the ship had fulfilled the obligation
of seaworthiness, even though the disaster could not have
happened if there had not also been the specific peril or action.
There is precise authority for this in the judgment of the
Court of Appeal delivered by that great authority on mercantile
law, Scrutton L.J., with the concurrence of Bankes and

ee ")

(1) (2570) 1 OQ. B.D 377. (3) (1877) 3 App. Cas. 72.
(2) (1885) 10 P. D. 103.

1005

H..L. (E.)

1940
——
SMITH,
Hoce & Co.

v.
Brack SEA
AND BALTIC

GENERAL
INSURANCE
(for
Lord Wright.

1006

H..L. (E.)

1940
-

SMITH,

Hoce & Co.

Vv.
Brack SEA
AND BALTIC
GENERAL
INSURANCE
Co.

Lord Wright.

HOUSE OF LORDS [1940]

Atkin L.JJ. in The Christel Vinnen. (1) Cargo in that case
was damaged by leakage through a leaky rivet ; the damage
might have been checked but for the negligence of the master
in not detecting the water in the hold and pumping it out.
It was held (notwithstanding an exception of negligence) that
the shipowners were responsible for the whole of the-damage,
not merely for such proportion as must have been incurred
before the inflow of water could have been checked. No
distinction was drawn between damage due to perils of the
seas alone and that due to perils of the seas and to negligence
combined. Scrutton L.J. said (2) : 'The water which entered
"and did the damage entered through unseaworthiness ; its
"effects when in the ship might have been partially remedied
"by due diligence, which the shipowner's servant did not take.
"But in my view the cause of the resulting damage is still
"unseaworthiness . . . . Here the man whohas by his original
"breach of contract caused the opportunity for damage has
"by the negligence of his servants increased it. He cannot
"show any exception to protect him, and cannot show that
"the dominant cause of the damage was not the unsea-
"worthiness which admitted the water into the ship." I
think this can be as truly said of negligence in acting as in
omitting to act. If I may however venture to criticise the
language of the learned Lord Justice, I should prefer to avoid
the word "'dominant'"' which he takes from the marine
insurance cases cited by him, in which it is necessary to find
the causa proxima or dominant cause. This results by reason
of the special character of that contract where the liability
to pay depends, broadly speaking, on the casualty being caused
directly by the happening which the contract stipulates to
be the event on which the indemnity becomes exigible. There
may be in marine insurance cases a competition of causes so
that it is necessary to determine which event is the dominant
cause. Negligence is not material, nor, in time policies, is
unseaworthiness material, nor is it material, in one sense, in
other classes of marine policies from the point of view of
causation, since if the warranty is not complied with, the risk

(1) [1924] P. 208. (2) Ibid. 208, 214.

A. C. AND PRIVY COUNCIL.

never attaches. In cases, however, of the sea carriage of goods
the liability depends, in the words of the Lord Justice, on a
"breach of contract," that is, to provide a seaworthy ship.
The sole question, apart from express exception, must then
be : " Was that breach of contract 'a' cause of the damage."
It may be preferred to describe it as an effective or real or
actual cause though the adjectives in my opinion in fact add
nothing. If the question is answered in the affirmative the
shipowner is liable though there were other co-operating causes,
whether they are such causes as perils of the seas, fire and
similar matters, or causes due to human action, such as the
acts or omissions of the master, whether negligent or not or
a combination of both kinds of cause. I think this was also
the view of Lord Atkinson in the curious case of Standard Oil
Company of New York v. Clan Line Steamers (1), where the
vessel was held to be unseaworthy because the master had
not been furnished with instructions as to special dangers
which her design involved. The ship was lost because the
master, being uninstructed, made a manceuvre which caused
her to capsize. He would not have done so if he had been
instructed as he ought to have been. But Lord Atkinson
said (2): '' There is nothing to show that what actually
"occurred would not appear to a competent seaman, properly
"instructed, to be the thing which would most probably occur
"'under the circumstances. The evidence, I think, establishes
"that the master's handling of his ship amounted to gross
"and flagrant mismanagement for which there was no excuse."
Lord Atkinson went on to hold that all the same the shipowners
were responsible. The loss resulted from the unseaworthiness,
In that as in other cases, including the present case, the right
to rely on the exception of negligence was conditional on due
diligence on the part of the owners to make the ship seaworthy,
which the owners had failed to exercise. I refer to this
authority in support of the conclusion that "a" cause of the
loss was the unseaworthiness, notwithstanding the intervening
negligence of the master. In cases of the type now being
considered, the negligence, if any, must almost inevitably

(1) [1924] A. C. 100, (2) Ibid. 120.

1007

H.\L. (E.)

1940
——
SMITH,
Hoae & 'Co.

Ve
Brack SEA
AND BALTIC

GENERAL
INSURANCE
Co.

Lord Wright.

1008

H. L. (E.)

1940
~-

SMITH,

Hoce & Co.

UV
Brack SEA
AND BALTIC

GENERAL
INSURANCE
Co:

Lord Wright.

HOUSE OF LORDS [1940]

occur in the course of the voyage, and thus intervene between
the commencement of the voyage when the duty to provide
a seaworthy ship is broken, and the actual disaster. I doubt
whether there could be any event which could supersede or
override the effectiveness of the unseaworthiness if it was
"a? cause.

This is clearly so in the facts of this case. The acts of the
master in bunkering as he did, and in pumping out the forepeak,
whether negligent or not, were indeed more proximate in time
to the disaster, and may be said to have contributed to the
disaster, but the disaster would not have arisen but for the
unseaworthiness, and hence the shipowners are liable.

In my opinion the judgment of the Court of Appeal was
correct and should be affirmed. The appeal should be
dismissed with costs.

Lorp Porter. My Lords, I am authorized by my noble
and learned friend Lord Romer to say that he concurs in the
opinion which I am about to deliver.

Lord PorTER. My Lords, the appellants were at all
material dates owners of the steamship Lilburn. On July 24,
1935, they entered into a charterparty with Exportles of
Moscow as charterers for the loading at Soroka in the White
Sea of a timber cargo, to be loaded both under and on deck
for carriage to Garston.

On the course of her voyage the ship and cargo incurred
a loss in respect of which a claim was made upon the under-
writers. The respondent underwriters thereupon entered into
an average guarantee on December 24, 1935, for payment of
any contribution to general average and/or salvage and/or
special charges on cargo which might be ascertained properly
to be due in respect of the cargo. On that guarantee the
appellants sued the respondents claiming a sum of 3325). 2s. 1d.,
and in that action, by arrangement between the parties,
the respondents were admitted to counterclaim for loss of and
damage to cargo said to amount to 1740/. Ios. 5d. In so
counterclaiming the respondents were treated as standing
in the position of the holders of the bills of lading. No

A. C. AND PRIVY COUNCIL.

question as to the amount recoverable is raised in the present
appeal.
The charterparty provided for the loading at Soroka of a

100g

H.L. (E.)
1940

—_—
SMITH,

full and complete cargo of wood goods, including a deck load Hoes & Co.
v

not exceeding what the ship could reasonably stow and
carry. The exceptions clause (clause 12) provided that the
shipowner should not be liable for loss or damage arising or
resulting from unseaworthiness unless the cause should be want
of due diligence on the part of the shipowner to make his ship
seaworthy, and (inter alia) that the shipowner should not be
responsible for loss or damage arising from the act, neglect,
or default of the master in the navigation or management of
the ship or from perils, dangers and accidents of the sea.
Under clause 13 the vessel had liberty to call at any ports
in any order for fuel, and by clause 22 it was provided that
general average if any should be settled in London according
to York-Antwerp Rules, 1924, in accordance with English
law.

The Lilburn loaded a cargo of 703,111 St. Petersburg
standards of wood goods, of which 255,232 were carried on
deck. The loading was completed and the ship sailed on
September 5, but on the previous day the master shut out
some six to nine standards; his reason for so doing was found
by the learned judge who tried the case to be due to the fact
that the vessel was unstable and had by that time listed about
five degrees to port. On sailing the Lilburn had 154 tons of
bunker coal on board, and according to the finding of the learned
judge even at that time she had either no metacentric height
or even a small negative metacentric height. The weather
which she encountered on her voyage was not abnormal, it was,
as the chief officer said, the type of weather you would expect
on that voyage at that time of year.

Owing, however, to her original instability and the con-
sumption of bunkers her list increased to eight or nine degrees
to port until September 10 when some of the deck cargo
was re-stowed under deck in an endeavour to counteract the
instability. Nevertheless, on September 12 she heeled over
from port to starboard taking a list of seven degrees. By the

Brack SEA
AND BALTIC
GENERAL
INSURANCE
Co.

Lord Porter.

IOIOo

H. L. (E.)

1940

—-
SMITH,

Hoce & Co.

Vv.
Brack SEA
AND BALTIC
GENERAL
INSURANCE
Co,

Lord Porter.

HOUSE OF LORDS [1940]

14th this list had increased to twelve degrees when the fore
peak was pumped up to fifteen feet in order to improve the
situation and counteract the effect of the consumption of
coal from the cross bunkers. In spite of these precautions
the list increased to fifteen and ultimately to seventeen
degrees.

As she had not enough coal on board to carry her to
Garston she put into Stornoway intending to take on board
an additional fifty tons of bunkers. At that time she had only
some four tons left. On entering the harbour the fore peak
tank was pumped out in order to improve her steering which
had become difficult by reason of the fact that she was down
by the head. She was then moored alongside a coal hulk,
and in an attempt to counteract the list, the coal which was
being taken on board was directed, though perhaps not with
complete success, to the port side. Whilst the coal was being
taken on board, the ship gradually decreased her list to
about nine degrees, until about sixteen tons had been shipped.
She then suddenly took a heavy list to port until she reached
some twenty-five degrees with the result that water came into the
engine and bunker space, and caused her to go on to her beam
ends. In this condition she lay with her masts broken or carried
away, and her crew had to leave her. Thereafter she was
beached and her deck cargo discharged. Finally she was
towed to Garston with the rest of her cargo on board but
partially damaged. The expenses so incurred were the subject
of the general average claim and the damage to the cargo
the subject of the counterclaim.

To test the question of liability an action was brought in
the High Court of Justice and transferred to the Commercial
List, where it was tried before Branson J. It was admitted
that if the loss was caused for any reason for which the
shipowners were responsible the appellants were not entitled
to recover any sum for general average, and were liable for
the damage done. The respondents contended that when the
Lilburn left Soroka she was unseaworthy and that that unsea-
worthiness was due to want of due diligence on the part of
the appellants. In reply the appellants denied that the ship

A. C. AND PRIVY COUNCIL.

was unseaworthy and alleged that the loss was not caused by
unseaworthiness but either by perils of the seas or else by
the negligence of the appellants' servants. No point appears
to have been taken in the Courts below nor was it contended
in your Lordships' House that if the ship was unseaworthy
that unseaworthiness was not caused by want of due diligence
on the part of the appellants. It was accepted that the
diligence required was that of the owner, his servants or
agents. But it was strenuously contended that the vessel
was not in fact unseaworthy. It was said that in a timber
ship the absence of metacentric height or even the existence
of negative metacentric height did not make the vessel
unseaworthy, that owing to the presence of the deck cargo
she would take a list appropriate to make that height either
positive or at least not negative, and that the fact that her
instability might make her list from side to side was a matter
of no consequence.

No Court has accepted this view, and it appears to be
common ground that in the condition in which she sailed
and with the necessary consumption of bunkers her negative
metacentric height must gradually increase and in fact did
increase until it had reached four inches. Whatever may be
the case where a timber carrying vessel sails with a list due
to the fact that the cargo is heavier on one side than
the other, I cannot take the view that a ship which has a
large metacentric height and is therefore so unstable that
the placing of a comparatively small additional weight either
to port or starboard causes her to list suddenly and violently
from one side to the other, is in a seaworthy state. In the
present case the shipment of some sixteen tons of coal at the
bottom of the cross bunker, possibly near the centre of
the ship and at worst on the port side, was enough to
cause so violent a change. Less stability may well be
called for in a ship carrying a timber cargo than in vessels
engaged in other trades, but I cannot think that so great
an absence of metacentric height actual or potential is
justified or that the learned judge had not ample evidence to
support his finding.

IOII

H. L. (E.)

1940
—
SMITH,
Hoae & Co.
v.
Brack SEA
AND BALTIC
GENERAL
INSURANCE
Co.

Lord Porter,

Io0Ir2

H. L. (E.)
1940
~e

SMITH,

Hoae & Co.

VU.
Brack SEA
AND BALTIC

GENERAL
INSURANCE
Co.

Lord Porter.

HOUSE OF LORDS [1940]

For these reasons I am clearly of opinion that the ship was
unseaworthy and that her unseaworthiness was due to the
failure of the owners to take proper steps.

Nor can it be said that in bringing about this disaster
the master was at fault. The appellants' own expert witness,
Dr. Telfer, said in evidence: '' In our profession we find it
"rather difficult for the layman to visualise just why because
"a ship is listing this way it is not the correct thing to do
"to put weights on that side. Any layman can be forgiven
"for trying that side first. I am quite sure that even
"naval architects who have experience of that particular
'problem would answer the wrong way were they caught
"unawares."

But the appellants say that they are protected by the
exception of perils of the sea and that even though the ship
was unseaworthy the unseaworthiness did not cause the loss.
To this argument the learned judge acceded, but his view
was reversed by the Court of Appeal. The argument was
put thus: that the ultimate cause of the loss was the act
or acts of the master either in pumping out the tank or in
shipping the coal on the port side or both.

No doubt those who are either defending themselves or °
putting forward a counterclaim based upon an allegation of
unseaworthiness must prove that the loss was so caused.

But here the loss was, I think, incontestably due to the
inability of the ship to take in bunkers by a method which
would have been both safe and usual in the case of a seaworthy
ship. It was not the coaling that was at fault nor the method
adopted: it was the fact that that coaling took place and
that method was adopted in a tender ship. If a vessel is to
proceed on her voyage, bunkers must be shipped, and though
in one sense the change of balance caused by taking in
bunkers was responsible for the accident to the Lilburn, it
was not the dominant cause even if it be necessary to show
what the dominant cause was. The master merely acted in
the usual way and indeed exercised what he thought was
exceptional care in diverting the coal shipped towards the port
bunker, In a seaworthy ship his action would have been

A. C. AND PRIVY COUNCIL.

a safe one. It was the instability of the ship which caused
the disaster.

In such circumstances it is unnecessary to decide what
would be the result if the loss were attributable partly to the
coaling and partly to the unseaworthiness, or to determine
whether the fact that the unseaworthiness was a substantial
cause even though some other matter relied upon were a
substantial cause also, would be enough to make the owners
liable for failure to use due care to make the vessel seaworthy.

I agree with all your Lordships in thinking the appeal
should be dismissed with costs.

Appeal dismissed.