[1950-1959] WSLR 21

HIGH COURT OF WESTERN SAMOA

MORRIS HEDSTROM LTD

v.

UNION STEAMSHIP COMPANY LTD

HIGH COURT. Apia.
1954. 21, 27, May
MARSACK CJ.

Carriage of goods by lighter - damage by sea water - lighter unseaworthy - damage not caused by act of God - no agreement between parties as to carriage of goods - common law duty of carrier.

This was a claim for the value of a quantity of sugar damaged by sea-water while being transferred by lighter from a ship anchored in Apia harbour to the wharf. The plaintiff was the consignee of the sugar and the defendant the lighterage contractor. There was no written agreement between the parties for the loading and carriage of goods from ship to wharf. The Court found that the lighter was not seaworthy at the commencement of its journey to the wharf; and that the damage to the sugar was not caused by an act of God.

Held: In the absence of any clear and unambiguous agreement between the parties whereby the defendant is relieved of its common law duty as a common carrier, the defendant is liable for the loss occasioned by the unseaworthiness of the lighter; and the defence of "act of God" cannot succeed where it is established that the lighter was unseaworthy at the commencement of its journey from ship to wharf.

Judgment for plaintiff.
Metcalfe, for plaintiff.
Coleman (by leave), for defendant.
Cur. adv. vult.

MARSACK CJ.: This is a claim for the value of a quantity of sugar damaged by sea-water when in transit from Apia roadstead to Apia wharf. I find the following facts which were either admitted or proved at the hearing. In January 1952 a quantity of sugar was consigned by the Sydney branch of the plaintiff company to the Apia branch, and carried in the "Waikawa", a ship belonging to and operated by the defendant company. A number of endorsements were added to the bill of lading by a series of rubber stamps, one of these reading:

"To roadstead only - lighterage to be at risk and expense of consignee."

The "Waikawa" arrived in Apia harbour on 6th February 1952, and the sugar in dispute was brought ashore during the early afternoon of 7th February. The method of conveying cargo from the roadstead to the shore was to load it at the ship's side into lighters which were thereupon towed ashore by launch. The defendant company was the lighterage contractor, under licence from the High Commissioner dated 10th January 1950. On the way ashore 77 bags of sugar, which wore then in possession of the defendant company as lighterage contractors for carriage to the shore, were damaged by sea-water; on examination by the Health authorities this sugar was condemned as unfit for consumption and was ordered to be dumped. The plaintiff company's claim represents this value of the sugar so destroyed.

Examination of the lighter after the sugar had been unloaded disclosed hat there was sea-water in it to a depth of 10 inches, due to the springing of a leak in the first seam, where the caulking had been displaced for some 2 or 3 feet on the port side. Evidence was given by Ta'avale, an employee of the defendant company who was working on the lighter, that when the lighter was almost fully loaded, and almost ready to start its journey to the shore, it suffered two or more heavy bumps against the side of the "Waikawa". The inference is that these bumps caused the leak in the lighter, which had made previous trips ashore that same day without making any water. It therefore becomes necessary to examine the evidence on two particular points: (1) the
weather conditions obtaining on the day in question, and (2) the seaworthiness the lighter, at the time it began to move away from the ship's side.

As to the first question, Mr Peagram, the Branch Manager of the defendant company, says:

"The weather was nothing exceptional. Showery, with odd squalls, a moderate sea."

This is confirmed by the witness Percy alter Hall, called for the plaintiff, who says:

"The conditions of the sea that day wore normal, not rough. No stevedore complained of the conditions."

John Ryan, the stevedoring and lighterage foreman for the defendant company, says in his evidence:

"There was a fair swell that day. Perhaps higher than at times when it looks rough; almost four feet. These swells would at times cause a big bump between lighter and ship....Lighters are built for that kind of work in more severe weather than obtained that day."

A report from the officer in charge of Apia Observatory shows -

That on the 7th February the mean wind speed was 2.3 knots, and the highest gust, at 14 knots, did not occur until 6.55 p.m., some hours after the sugar was brought ashore. It is also to be noted that the operation of discharging cargo from the "Waikawa" into the lighters proceeded without interruption during the day, indicating that those responsible saw nothing in the weather conditions which justified even a temporary stoppage of the work. Giving due consideration to the evidence I find that Mr Peagram's statement accurately sums up the position, and I accept it as correct.

The question of the seaworthiness of the lighter is more difficult to answer. Mr Peagram had inspected it in September 1951, and reported that the hull was in good order, and with constant supervision should last indefinitely. No further careful inspection appears to have been made between that date and the afternoon of 7th February, though the foreman Ryan made a practice of briefly examining the lighters after they were baled out each working morning and did so on the morning in question. It is possible that a weakness had developed in No. 1 scam, though it is difficult to say with certainty. The lighters are all strongly built, and No. 2, the lighter concerned in this case, was no exception. To protect it from damage due to bumping against the hull of the ship being discharged or against the wharf, the lighter was furnished with stout wooden fenders, and in addition two old truck tyres were hung; over each side of the craft. Mr Ryan deposes that this form of protection has proved adequate over the years.

Notwithstanding the steps taken to provide protection from damage arising from bumping against the side of the ship, it is clear that on 7th February damage did so result, involving the ruin of the cargo being carried. Moreover, such damage was sustained when weather conditions were normal, or at least less severe than the lighters were expected at times to face. I have already quoted Mr Ryan's evidence on this point; and Mr Peagram says:

"In my opinion these lighters are fit to encounter the ordinary perils. They should be able to stand up to a fair amount of storm weather..... The lighters are specially constructed for heavy work."

I accept the definition of seaworthiness given in Carver on the Carriage the Carriage of Goods by Sea, 9th Ed., at page 84 - 86:

"The ship must be fit in design, structure, condition and equipment to encounter the ordinary perils of the voyage .... What is meant is that she must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage, having regard to all the probable circumstances of it. To that extent the ship-owner undertakes absolutely that she is fit; and ignorance is no excuse."

In Halsbury's Laws of England 2nd Ed., Volume XXX at page 64 the requirements of unseaworthiness are set out as follows:-

"To render the ship seaworthy for the purpose of the voyage she must, at the time of sailing, be in a fit state, as to repairs, equipment, and crew, and in all other respects, to encounter ordinary perils of the voyage at the particular season in question. She must, therefore, be tight, staunch, and strong, and furnished with all tackle and apparel necessary for the intended voyage. Thus, there is a clear breach of this condition if, at the time of sailing, she is in a leaky state, or insufficiently ballasted, or if her sails are rotten, or boilers defective, or if her ground tackle is inefficient. Moreover, the condition is broken, although the ship may be in a present state of fitness at the moment of sailing if, by reason of a latent defect or internal weakness existing at that time, she will be rendered unfit in the future for the due completion of her voyage."

Applying these definitions, I am compelled to conclude that at the commencement of her voyage to the shore lighter No. 2 was not fit to encounter the ordinary perils of the voyage, and was accordingly unseaworthy at that material time. There is no evidence that the craft was called upon to face any unusual peril, or any weather conditions other than wore normal for that time of year; in fact, there is direct evidence from the defendant company's own witnesses, to the contrary. As the lighter was then unable to cope with normal conditions without sustaining damage of vital importance to the cargo, the lighter was not seaworthy within the generally accepted legal definition of that term.

It is admitted that the defendant company was, at all times material to the case, a common carrier. The defendant is accordingly liable for all loss or damage which may happen to the goods carried, while they are in his hands as carrier, unless he is able to establish one or more of certain defences, of which the defendant sets up two: (1) that the loss or damage was due to an act of God; (2) that the express contract between the parties relieves the defendant of liability. It is to be observed, however, that the defendant is not entitled to rely on either of those defences if the loss or damage was due to the unseaworthiness of the ship - in this case lighter No. 2 - when she commenced her voyage. The shipowner undertakes, when he accepts cargo for carriage by sea, that his ship will be seaworthy; and in the event of a breach of that condition he is liable for the resultant loss or damage. C.f. Halsbury 2nd Edition Volume XXX at page 471:

"The time when the condition (as to seaworthiness) must be fulfilled is at the commencement of the voyage... a breach of the implied condition as to seaworthiness makes the shipowner liable for loss or damage resulting therefrom, whatsoever its immediate cause may happen to be, because protective clauses in the contract of carriage do not cover loss or damages occasioned by the initial unseaworthiness of the ship."

In the absence of any clear and unambiguous agreement by the shipper that the implied warrantly [sic] of seaworthiness is negatived - and there is no such agreement here – the defendant company is clearly liable for the loss occasioned by the unseaworthiness of the lighter.

Consideration of the express defences put forward by the defendant company leads me to the conclusion that they cannot in any event be sustained.

The principle to be applied where an "act of God" is pleaded was authoritatively stated by James LJ. in Nugent v. Smith (1876) 1 C.P.D. 423 at page 444:

"A common carrier is not liable for any accident as to which he can show that it was due to natural causes, directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him."

In Pandorf v. Hanilton 17 Q B.D. 675 Lord Esher MR. defines an act of God thus:

"in a mercantile sense, it means an extraordinary circumstance which could not be foreseen, and which could not be guarded against."

Not only must the casualty have occurred independently of human action, but it must have been an event which the shipowner could not have avoided, or guarded against, by any means which he could reasonably have been expected to use. The findings of fact earlier in this judgment, in my opinion, effectively dispose, of the argument that the event which caused the damage was an act of God. The swell or surge in the harbour was no greater than normal. The likelihood of the lighter bumping against the ship's side had been foreseen, and it was well known to the lightermen and to the company's manager and foreman that such bumps did constantly take place. The necessity for providing against damage from such collisions had been fully recognised by the defendant company and its servants. Mr Coleman's contention that the damage was due to the operation of forces of nature not reasonably foreseeable is, in my view, untenable. The defence, based on an act of God must fail.

In its statement of defence the defendant company submits that it is relieved from liability by reason of the terms and conditions of the bill of lading under which the goods were shipped from Sydney, in particular the endorsement quoted earlier in this judgment, and clauses 2 and 9 which are set out in full in the statement of defence. Much confusion has, I think, been caused in the argument and during the hearing of the case generally by a failure to appreciate the fact that the defendant company appears in two capacities: that of the owner and operator of the "Waikawa", and that of lighterage contractor. In so far as I am able to decipher the terms of the bill of lading under the mass of purple lettering plastered on the document by means of rubber stamps, it appears to represent a contract to carry the cargo from Sydney to Apia roadstead. It is a contract between the plaintiff and the defendant in its capacity as shipowner, and has no reference whatever to the further voyage of the cargo from Apia roadstead to the shore. But the plaintiff's claim concerns only the latter journey, which by the defendant's endorsement on the bill of lading is specifically exempted from the visions of the original carriage contract from Sydney to Apia roadstead. It is thus unnecessary for me to decide whether the Carriers Act 1948 (New Zealand) applies to the contract evidenced by the bill of lading, or whether the Rules in the Schedule to the Carriage of Goods by Sea Act 1924 (Imperial) are to be incorporated therein, as in the document provided. No written contract was entered into by the parties in respect of the loading and carriage of the cargo from roadstead to shore. Under clause 4 of the Lighterage license the contractor may, with the consent of the High Commissioner, make rules regulating the receiving, conveying and delivering of cargo, but no such rules have been made.

There is thus no special agreement between the parties whereby the defendant company is relieved of its common law liability as a common carrier respect of the carriage of the cargo from the roadstead to the shore. The damage to the cargo was caused during this journey, and the event by reason of which the damage was sustained was not an act of God. Independently of the finding of unseaworthiness of the lighter, therefore, I am of the opinion that the defences raised fail, and the plaintiff company is entitled to succeed.

For these reasons there will be judgment for the plaintiff company. The amount claimed represents the actual landed cost of the sugar to the plaintiff, and is less than the market price of sugar at Apia in February 1952. No cross-examination was directed to the question of the reasonableness otherwise of the sum claimed as damages. The amount is in my opinion reasonable. Plaintiff will have judgment for the amount claimed, £306.9.0 with costs, disbursements and witnesses' expenses to be fixed by the Registrar.

Judgment for Plaintiff