Later decisions that cite British Fame (Owners) v Macgregor
Viscount Simon L.C. My Lords, this is an appeal brought
by the owners of the motorship, British Fame, against a
decision of the Court of Appeal which varied the proportions
in which blame is to be shared in respect of a collision between
the British Fame and a steamship called the Macgregor, for
which Bucknill J. at the trial found both to blame. There
is no cross-appeal, and we must proceed on the basis that it
cannot be disputed that the collision between the Macgregor
and the British Fame was one for which both ships were to
blame. The only question that remains for debate is the
question of the distribution of that blame. Speaking for
myself, I think that the conclusion at which Bucknill J.
arrived on that question was a perfectly reasonable one, having
regard to the facts which he found. The Court of Appeal,
however, has thought it right, while maintaining the view that
both ships were to blame, to vary the distribution of the blame
by putting two-thirds of it on the British Fame and relieving
the Macgregor so that the Macgregor has to carry only the
remaining one-third.
It seems to me, my Lords, that the cases must be very
A.C. AND PRIVY COUNCIL.
exceptional indeed in which an appellate court, while accepting
the findings of fact of the court below as to the fixing of blame,
none the less has sufficient reason to alter the allocation of
blame made by the trial judge. I do not say that there may
not be such cases. I apprehend that, if a number of different
reasons were given why one ship is to blame, but the Court of
Appeal, on examination, found some of those reasons not to
be valid, that might have the effect of altering the distribution
of the burden. If the trial judge, when distributing blame,
could be shown to have misapprehended a vital fact bearing
on the matter, that, I think, would be a reason for considering
whether a change in the distribution should be made on
appeal. But, subject to rare exceptions, I submit to the
House that, when findings of fact are not disputed and the
conclusion that both vessels are to blame stands, the cases
in which an appellate tribunal will undertake to revise the
distribution of blame will be rare.
I remind your Lordships of the language used by my noble
and learned friend, Lord Wright, in The Umtali (1). In his
speech in that case, with which the other noble and learned
Lords agreed, Lord Wright said: "It would require a very
"strong and exceptional case to induce an appellate court to
"vary the apportionment of the different degrees of blame
"which the judge has made, when the appellate court accepts
"the findings of the judge." It appears to me, my Lords,
that that passage directly applies here. I do not find in the
judgments of the Court of Appeal or in the arguments which
have been addressed to us by the respondents sufficient ground
for interfering with the apportionment decided on by
Bucknill J. That apportionment, in my judgment, should
stand, and I move that this appeal be allowed with costs.
Lorp ATKIN. My Lords, I agree entirely with the opinion
which has just been expressed by the Lord Chancellor, and in
those circumstances, although we are differing from the
judgment of the Court of Appeal, I find it unnecessary to add
any reasons of my own.
LorD THANKERTON. My Lords, I concur.
Lorp WricHtT. My Lords, I also concur, but I ought to
add a few words on The Testbank (2), in which the Court of
(x) (1938) 160 L. T. 114, 117. (2) [1942] P. 75.
199
H. L. (E.)
1942
BRITISH
FAME
(OWNERS)
v.
MACGREGOR
(OWNERS).
MACGREGOR
(THE).
Viscount Simon
Lc.
200
H. L. (E.)
1942
—
BRITISH
FAME
(OWNERS)
v.
MACGREGOR
(OWNERS).
MACGREGOR
(THE).
Lord Wright.
HOUSE OF LORDS {1943}
Appeal varied the apportionment of degrees of blame as
between two vessels actually found to be in fault. In the
headnote to that case it is stated: ''The finding of the trial
"judge as to the degrees of blame to be attributed to two or
"more ships which are in fault . . . . is a conclusion of fact,
"and as such ''—these are the important words in the headnote
which seem to me to be borne out by the judgment—"'is open
"to review by the Court of Appeal no more and no less than
"any other finding of fact by the trial judge.'' With the
greatest respect to the Court of Appeal, and without in any
way expressing any opinion on the actual decision at which
they there arrived, I venture to think that their statement of
principle is not quite in accord with the authorities, so far as
laid down up to the present. The Umtali (1), which was a
decision of this House, was not cited to the Court of Appeal,
but there was cited The Kavramea (2) in which Lord Sterndale
M.R., a great authority on these matters, dealing with this
question of apportionment, said (3): "I think it would need
"a very strong case indeed to induce this court to interfere
"with [the judge's] discretion as to the proportions of blame.
""We have power to do it, but I do not suppose that we should
"ever think of doing it." Warrington L.J. is reported as
saying (4): "It may well be and probably is the case that if
"the court arrives at the same conclusion both on the facts
"and in law it would not interfere merely because the learned
"judge in his discretion has given proportions which this
"court thinks it would not have given.'' Scrutton L.J.
said (5): "'If the Court of Appeal agrees with the findings of
"fact and law of the learned judge below, and the only
"difference is that it attaches more importance to a particular
"fact than he did, it would require an extremely strong case
"to alter the proportions of blame which the learned judge
"below has attributed to the ships."
It seems to me that these observations of three very
eminent judges are quite in accord with what was said in The
Umtalt (1) and with what the Lord Chancellor has just said.
I do not say, any more than they did, that under proper
conditions, such as those indicated by the three members of
the Court of Appeal in The Karamea (2), the judge's apportion-
ment might not be interfered with by an appellate court,
(1) (1938) 160 L. T. 114, 117. (4) Ibid. 83.
(2) {ro2zt}" P76. (5) Ibid. 80.
(3) Ibid. 78.
A.C. AND PRIVY COUNCIL.
but I do repeat that it would require a very strong case to
justify any such review of or interference with this matter of
apportionment where the same view is taken of the law and
the facts. It is a question of the degree of fault, depending
on a trained and expert judgment considering all the circum-
201
H. L. (E.)
1942
BRITISH
FAME
Bi Pie
stances, and it is different in essence from a mere finding of Maser
fact in the ordinary sense. It is a question, not of principle
(OWNERS).
CGREGOR
or of positive findings of fact or law, but of proportion, of tae
balance and relative emphasis, and of weighing different
considerations. It involves an individual choice or discretion,
as to which there may well be differences of opinion by
different minds. It is for that reason, I think, that an appellate
court has been warned against interfering, save in very
exceptional circumstances, with the judge's apportionment.
The accepted rule was clearly stated by Lord Buckmaster,
with the assent of the other Lords, in Kitano Maru (Owners)
v. Otranto (Owners) (The Otranto) (1), in these words: " Upon
"the question of altering the share of responsibility each has to
"take, this is primarily a matter for the judge at the trial, and
"unless there is some error in law or in fact in his judgment it
"ought not to be disturbed." I might add that in The
Karamea (2) the Court of Appeal varied the proportion of
liability because they took a different view of the facts. Their
decision was affirmed by this House: Haugland (Owners) v.
Karamea (Owners) (3).
LorD PoRTER. My Lords, I also agree that this appeal
should be allowed, and I agree with the reasons given by the
noble Lord on the woolsack and also with the grounds and
reasoning of my noble and learned friend, Lord Wright. I
have only to say that, speaking for myself, if I had to choose
between the reasoning of the judgments in The Karamea (2)
and that of those in The Testbank (4), as at present advised
I should prefer that in The Karamea (2).
The principles which govern an appellate court in deter-
mining whether to vary the apportionment of blame in an
Admiralty case have been laid down in a number of decisions
and consistently followed both in this House and in the Court of
Appeal at any rate since 1915. In that year in The Peter
Benoit (5), (affirmed without discussion on this point (6)) the
(1) [1931] A.C. 194, 204. [1942] P. 75.
) (4)
(2) [1921] P. 76. (5) (1915) 84 L. J. (P.) 87.
(3) [1922] 1 A.C. 68 (6) (tors) 85 L. J. (P-.) 12.
Q
ING (Ge ae yisy, 3
Lord Wri Wright,
202
H. L. (E.)
1942
BRITISH
FAME
(OWNERS)
Uv.
MACGREGOR
(OWNERS).
MACGREGOR
(THE).
Tord Porter.
HOUSE OF LORDS [1943]
Court of Appeal thought that the trial judge had misinterpreted
a rule of navigation and therefore varied the proportion of
blame, but Pickford L.J. in the course of his judgment said (1) :
"T think this court ought not lightly to interfere with the
"judgment of the court below on a question of apportioning
"liability, and certainly should not do so if this court accepted
"all the facts found by the learned judge, or all the elements of
"his decision upon which he based his proportions." Bankes L.J.
took a similar view. The Karamea (2) has already been referred
to. Its principles were followed in The Clara Camus (3),
where Scrutton L.J. adopted language almost identical with
that which he used in the former case, and his words were
repeated and approved by Lord Shaw on an appeal to your
Lordships' House (4). The words of Lord Buckmaster in
The Otranto (5), already quoted by Lord Wright are to the like
effect.
My Lords, I venture to add these observations to those of
the Lord Chancellor and of my noble and learned friend, Lord
Wright, because whatever may be the true view as to the
decision in The Testbank (6), of which I say nothing, the
principle applicable to the review of apportionment of blame
is, as I think, too widely stated in that case having regard to
the series of decisions which preceded it. Except The
Karamea (2) those decisions do not appear to have been quoted
to the Court of Appeal, and consequently I have thought it
desirable to repeat the opinions which they express.
Appeal allowed.