Esso Petroleum Co Ltd v Southport Corporation

Lorp Normanp. My Lords, it is unnecessary for me to add
anything on trespass and nuisance. I agree with my noble and
learned friends, whose opinions I have had the advantage of
reading, that the real issue in the appeal is that of negligence.

On negligence the appellants' first and main contention was
that the Court of Appeal have travelled beyond the negligence
alleged by the respondents. The respondents' pleadings show
(1) that the owners and master of the ship were charged with the
same negligent acts or omissions, for which the owners would be
liable vicariously and the master directly, if they were proved;
(2) that all these acts and omissions were errors in the navigation
of the ship; (3) that they began when, and not before, the ship
was about to enter the channel of the river Ribble on her way to
Preston; (4) that after the respondents had seen the master's
report, which disclosed that the stern frame had been fractured,
the rudder damaged, and the propeller blades broken, they
amended their pleadings by adding an allegation of negligence in
navigating the vessel into the channel when the steering was
erratic. These were the allegations which the respondents set
out to prove. There was no notice in the pleadings of any other
cause of action, such as that the appellants negligently sent the
vessel to sea in an unseaworthy condition.

The function of pleadings is to give fair notice of the case
which has to be met so that the opposing party may direct his
evidence to the issue disclosed by them. In fact the evidence in
the case was concerned only with the negligence alleged. The
result was that the master of the vessel was acquitted by
Devlin J. of the negligence alleged, and the logical consequence
was that the owners were also acquitted by him.

The majority of the Court of Appeal, however, held that the
onus lay on the owners to show that the accident which caused
the damage was inevitable, and to do this it would have been

A.C. AND PRIVY COUNCIL.

239

necessary to show that no reasonable care which they might have H. L. (B.)

taken would have avoided the damage. As the appellants had
made no attempt to lead evidence to discharge this onus, the
majority of the Court of Appeal found them liable in damages.

I do not wish to speculate on what might have been alleged,
nor on what evidence might have been adduced by either side on
other allegations, nor on how the onus might have shifted in
consequence of other allegations and evidence. Confining myself
to the actual allegations of negligence and to the evidence in
the case, I find the conclusion inevitable that, since the master
has been acquitted of the faults alleged against him, the owners
must also be acquitted. I wish to associate myself with the
observations of my noble and learned friend, Lord Radcliffe, on
the value of the pleadings. To condemn a party on a ground of
which no fair notice has been given may be as great a denial of
justice as to condemn him on a ground on which his evidence
has been improperly excluded.

I would allow the appeal.

Lorp Morton or Henryton. My Lords, this appeal arises
out of an action in which the respondents were plaintiffs and the
appellants, as owners of the Inverpool, and one George McMeakin
as master of that vessel, were defendants. The events leading up
to the action have already been stated by my noble and learned
friend on the Woolsack.

The first submission of counsel for the appellants was that,
having regard to the pleadings and to the fact that the Court
of Appeal affirmed the judgment of Devlin J. in favour of the
master, that court should also have affirmed the judgment of
the learned judge in favour of the appellants, instead of deciding
against them on an issue which was not raised by the pleadings.
This submission leads me at once to a consideration of the plead-
ings, in order to see exactly what were the issues raised thereby.

[His Lordship stated the material parts of the pleadings and
continued: ] My Lords, I have set out the pleadings in detail in
order to show that no complaint was made of any act or default on
the part of the appellants, either in the original statement of claim
or at the time when the respondents had the opportunity of
amending it with full knowledge of the facts already mentioned.
As against the master, it was alleged that he had been negligent,
that his negligence was the cause of the discharge of oil from the
tanker, that such discharge had resulted in '' a trespass and/or
"'nuisance'' and had caused damage to the respondents. It

1955

*

Esso
PETROLEUM
Co. Lip.
v.
SouTHPORT
CORPORA-
TION.

Lord
Normand.

240

Pe ice CBs)
1955

Esso
PETROLEUM
Co. Lip.
v.
SoUTHPORT
CORPORA-
TION.

Lord Morton
of Henryton.

HOUSE OF LORDS [1956 |

was sought to make the appellants liable only on the ground of
vicarious responsibility for the acts and defaults of the master.

All the attacks upon the master's conduct were fought out
before Devlin J. and they all failed. The victory of the master
destroyed the only ground upon which the respondents by their
statement of claim had sought to cast liability upon the appel-
lants. Counsel for the respondents then sought to make a case
of which no hint appeared in the pleadings. They contended that
in the circumstances the onus was upon the defendants in the
action to prove inevitable accident, and they quoted the observa-
tion of Fry L.J. in The Merchant Prince*: '' The burden rests
''on the defendants to show inevitable accident. To sustain that
'"the defendants must do one or other of two things. They must
'* either show what was the cause of the accident, and show that
'"' the result of that cause was inevitable; or they must show all
''the possible causes, one or other of which produced the effect,
'"and must further show with regard to every one of these
"possible causes that the result could not have been avoided."'
Counsel submitted that the defendants had not discharged this
burden; for instance, the stern frame might have been in an
unsound condition when the tanker started her voyage, and might
have been fractured by heavy seas which would not have fractured
a sound stern frame. This argument failed before Devlin J. but
succeeded with the majority of the Court of Appeal. Devlin J.,
after referring to The Merchant Prince,® said*: '' That decision
'""does not enable the plaintiffs to succeed otherwise than upon
'""a charge of negligence which they have pleaded. The only
"" negligence alleged in this case is against the master, who is the
"second defendant, in respect of his navigation and management
"of the Inverpool in relation to this voyage; the owners of the
"' ship, the first defendants, are sued only as answerable for the
"master's wrongdoing.'' Having acquitted the master of negli-
gence, he dismissed the action. From that decision the present
respondents appealed and the majority of the Court of Appeal
held that the burden lay upon the present appellants to show
that they had exercised proper care and that they had failed to
discharge that burden. The court therefore directed that judg-
ment be entered against the present appellants for an amount of
damages to be ascertained but affirmed the judgment of Devlin J.
in favour of the master. My Lords, it may well be that the

4 [1892] P. 179, 189. 6 Ante, p. 281.
5 [1892] P. 179.

A.C. AND PRIVY COUNCIL.

respondents' case might have been pleaded in such a way as
to cast upon the present appellants the burden of proving that
they had exercised proper care. In that event, as my noble and
learned friend on the Woolsack has said, the case would no doubt
have developed on different lines. The respondents, however, as
I have already pointed out, had pleaded negligence of the master,
and trespass and nuisance and damage resulting from such negli-
gence; as against the appellants, they chose to rely only upon the
responsibility of the owners for the master's negligence.

In this state of the pleadings it seems to me to follow that
the Court of Appeal, having affirmed the judgment of Devlin J.
in favour of the master and having thereby acquitted the master
of any negligence, should also have affirmed his judgment in
favour of the present appellants.

My Lords, I do not regard the first argument of counsel for
the appellants as a merely technical one. I think that the course
taken by the majority of the Court of Appeal cast upon the
appellants a burden which they should not have been called upon
to shoulder and caused substantial hardship to them. In my
opinion, counsel's first argument ought to succeed, and I would
allow the appeal.

Lorp RavcurFre. My Lords, I think that this case ought to
be decided in accordance with the pleadings. If it is, I am of
opinion, as was the trial judge, that the respondents failed to
establish any claim to relief that was valid in law. If it is not,
we might do better justice to the respondents—I cannot tell, since
the evidence is incornplete—but I am certain that we should
do worse justice to 'the appellants, since in my view they were
entitled to conduct the case and confine their evidence in reliance
upon the further and better particulars of paragraph 2 of the
statement of claim which had been delivered by the respondents.
It seems to me that it is the purpose of such particulars that
they should help to define the issues and to indicate to the party
who asks for them how much of the range of his possible evidence
will be relevant and how much irrelevant to those issues. Proper
use of them shortens the hearing and reduces costs. But if an
appellate court is to treat reliance upon them as pedantry or
mere formalism, I do not see what part they have to play in our
trial system.

In my view, the trial turned upon the issue of negligence. It
is true that the fact that the oil spread itself over the respondents'

241

H. L. (B.)
1955

Esso
PETROLEUM
Co. Lip.
0.
SouTHPORT
CORPORA- _
TION.

Lord Morton
of Henryton.

242 HOUSE OF LORDS [1956 |

H. L. (E.) foreshore was the subject of alternative claims in nuisance and in
1955 , trespass. So far as nuisance goes, I share the view of Denning
ee L.J. in the Court of Appeal that the appellants were not respon-

Prrroteum sible for a private nuisance in any ordinary sense. What was

Co. LTD. | done may possibly have constituted a public nuisance from which

v. . °
Souruport |the respondents suffered special damage; but since it seems to

Raman be conceded that it would be a defence to such a claim to show
ae that the discharge of oil was reasonably necessary to prevent loss
or

Radcliffe. of life in the ship's crew unless the appellants' own carelessness
had brought about the danger of that loss, the essential issue |

comes round again to one of negligence. , As to trespass, I am
not prepared to say that I think that the appellants' action did

\ constitute a trespass at all. Certainly I do not regard such deci-
; sions as Jones v. Llanrwst Urban District Council' and Smith
|v. Great Western Railway Co.* as having any real bearing on the
circumstances of this case in which the oil was jettisoned at sea,
committed to the action of wind and wave, with no certainty, so

\ far as appears, how, when or under what conditions it might
. come to shore. But the issue of trespass was only touched upon
| veto us, presumably because it was common ground that there
would again be a good defence unless negligence were established.
As to the proof of negligence, I can summarize my view as
follows. The respondents might have undertaken to make good
their claim in more than one way. One way would have been

to follow the line taken in The Merchant Prince,® upon which so
much of the argument in this case has turned. That would have
meant relying on the view that the mere fact that the ship had
grounded on the training wall at all was evidence of negligence,
and calling upon the appellants to discharge the onus of disproof
thus placed upon them.. I do not think that we have sufficient
material to enable us to say with certainty whether such an
opening attack would have succeeded. Running a ship on to
the training wall of a channel in the conditions of weather which
prevailed at the time of the accident is at any rate not the same
thing as running into a stationary vessel in the Mersey. But,
assuming that the event was itself prima facie evidence of negli-
gence and that the respondents had so framed their case, I do
not doubt that the majority of the Court of Appeal were right in
saying that the appellants would not have displaced that evidence

7 [1911] 1 Ch. 898; sub nom. 8 (1926) 185 TS 119s 49 TTR.
Isgoed Jones v. Llanrwst U. D. C., 391.

27 T.L.R. 1383. ® [1892] P. 179.

A.C. AND PRIVY COUNCIL.

243

by merely showing that their failure in navigation was due to a H. L. (E.)

failure in the steering apparatus of the ship. They would have
had to go further and show that they had not omitted any reason-
able precaution to ensure that failures did not occur in their
steering apparatus or in their control of the steering.

But the point is that the respondents did not undertake to
make good their case on these lines. It is quite clear from the
particulars which they were invited to furnish, and which they
furnished, that they decided to rely on certain actions of the"
master in his navigation of the ship. He was careless, they said,
in taking his ship into the channel when its steering apparatus
was working so badly and/or when its stern frame, rudder and

propeller had sustained damage. Knowing what he did about .

the conditions, he ought to have stayed outside, or called for a
pilot or tug, or had the damage inspected and remedied before
going in, or at any rate managed to navigate so as not to run into
the wall. There were further grounds of complaint relating to
the master's decision to jettison the oil, challenging the necessity
or propriety of that decision. I find it impossible to read the
statement of claim and the particulars without coming to the
clear conclusion that, while the respondents were announcing it
to be one of their heads of complaint that the master had brought
his ship into the channel with defective control of steering, they
were not putting it forward as a ground of complaint that the
appellants, the shipowners, had allowed their ship to be at sea
in such a defective condition. And that is what they now wish
to complain of.

The respondents called evidence in chief, expert evidence, in
support of their heads of claim. In their turn the appellants
called their evidence upon these heads. The trial judge, after
weighing the evidence, came to the conclusion that the respon-
dents had not made good their case on any of the particulars.
There, he thought, the case ended, and I am of the same opinion.
I think it quite wrong that the respondents should, nevertheless,
be entitled to say that the appellants must lose because they did
not cover at the trial a range of evidence, how the stern frame
came to break, the condition of the steering apparatus, the
measures taken by the appellants to ensure that their ship and
gear were in good order, which the respondents by their own
pleading had excluded from the trial.

I am not unmindful that the respondents' counsel told us
that he had conducted his case throughout on the lines of The

|

1955

Esso
PETROLEUM
Co. Lp.
v.
SoUTHPORT
CoRPORA-
TION.

Lord
Radcliffe.

244

H. L. (E.)
1955

Esso
PETROLEUM
Co. Lrp.
v.
SouTHPORT
CORPORA-
TION.

Lord
Radcliffe.

HOUSE OF LORDS [1956 |

Merchant Prince® decision, although there did not seem to be
unanimity between him and counsel for the appellants as to the
stage at which what I will call The Merchant Prince ® argument
first appeared during the hearing. In my view, where. the
question is, as here, as to sufficiency of evidence, the state of
the pleadings is of more importance than the way in which the
case is shaped in argument. It is clear that no application was
made to the trial judge to amend the pleadings. by altering or
extending the particulars, and it is equally clear from what he
says at the close of his judgment that he did not regard himself
as having 'expressly or impliedly authorized any such amendment.
That being so, I am of opinion that the appellants called as much
evidence as was required of them to defend themselves from the
charges of negligence that were made in this case.
I agree that the appeal should be allowed.

Lorp Tucxer. My Lords, I agree that having regard to the
issues raised in the pleadings it was not open to the Court of
Appeal to substitute for the judgment of the trial judge in favour
of the defendants a judgment in favour of the plaintiffs based
upon the failure of the defendants to prove that the Inverpool
was seaworthy when she left Liverpool on December 3, 1950.

I desire only to add a word or two about the alleged cause of
action in trespass. I am inclined to agree with Denning L.J.

{ that trespass does not lie on the facts of this case, as the discharge

of the oil was not done directly on to the foreshore but outside
in the estuary. Furthermore, it would seem from the decision
in Sharrod v. London and North Western Railway Co. that
even if trespass would lie against the master, it would not have

/ been available against the defendant company. Apart, however,

from such considerations as these it is, in my view, well settled
that, in actions between users of the highway and between the
occupier of premises adjoining the highway which have been
damaged by a person lawfully using the highway, the person who
has suffered damage cannot recover in trespass in the absence of
negligence on the part of the person who has caused the damage:
see per Lord Blackburn in River Wear Commissioners v. Adam-
son," where he says: '' My Lords, the common law is, I think,
"as follows:—Property adjoining to a spot on which the public
"have a right to carry on traffic is liable to be injured by that
'traffic. In this respect there is no difference between a shop,

9 [1892] P. 179.

11 (1877) 2 App.Cas. 748, 767.
10 (1849) 4 Exch. 580.

A.C. AND PRIVY COUNCIL.

"the railings or windows of which may be broken by a carriage
"on the road, and a pier adjoining to a harbour or a navigable
"river or the sea, which is liable to be injured by a ship. In
"either case the owner of the injured property must bear his
"" own loss, unless he can establish that some other person is in
"fault, and liable to make it good.'' This was the principle
applied by McCardie J. in Gayler & Pope Ltd. v. B. Davies &
Son Ltd. in rejecting the contention that the plaintiffs in that
case could succeed in trespass in the absence of negligence.

Appeal allowed.