Scottish Court of Session Decisions

These were cross-suits at the instance of the owners of the smack “Petrel” of Lerwick against the owner of the cargo, and vice versa. The cargo which consisted of whale blubber and heads, was shipped in bulk at Shetland to be conveyed to Peterhead at a slump freight. The voyage was unusually prolonged owing to stress of weather, and the captain landed the cargo at Lerwick, where it was washed and cleaned, and taken on board in casks, and so the whole cargo was conveyed to Peterhead, with the exception of a portion which was sent on by another conveyance, owing to want of room.

The shipowners sued for (1) freight of £50; (2) a sum of £113 disbursed at Lerwick; (3) £50 in respect of detention of the vessel during the operations on the cargo. The owner of the cargo claimed damages in respect of the operations performed on the cargo, and opposed the claims of the shipowners, except for freight.

The facts of the cases are fully set forth in the following interlocutor of the Lord Ordinary:—

“ Edinburgh, 10 th April 1873.—The Lord Ordinary having considered the conjoined causes (1st) in the action at the instance of the pursuers, Peter Garriock and Others; Finds, that while the pursuers' vessel the ‘Petrel,’ in the course of the voyage between Uyea Sound and Peterhead, in the fullfilment of the charter-party entered into between the pursuers and the defender on 23d December 1871, was

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in Lerwick Bay, and without any fault of the pursuers, the cargo, consisting of whale blubber and heads, became seriously affected by decomposition, and a large quantity of oil ran of into the hold: Finds that, in consequence, it was unsafe for the ship and cargo to proceed further with the voyage, and it became necessary to have the cargo landed and shipped in casks, instead of being carried in bulk: Finds that, in order to avert serious loss and deterioration of the cargo at this time, it was necessary and proper that it should be subjected to the operations recommended in the report by William Halcrow and John Johnstone: Finds that the cargo was with due care landed, and thereafter subjected to the operations recommended in said report, and re-shipped on board of the ‘Petrel’ to the full extent that she was able to carry in casks: and that the quantity so shipped was delivered by her at Peterhead, and the remainder sent on by other means of conveyance, and also delivered to the consignee, with the exception of a small quantity which had got into such an offensive condition from decomposition that it could not be sent off: Finds that the sum of £113, 0s. 7 1 4d. was disbursed by the captain in the landing, treatment, and re-shipment, and despatch of the cargo: Finds that, in consequence of the necessity for the landing, treatment, and reshipment of the cargo as aforesaid, the pursuers' said vessel was detained in Lerwick Harbour from 26th January to 26th February 1872, and that the sum of £50 is a reasonable charge for such detention: Therefore repels the defences: Finds the pursuers entitled to the various sums sued for, and decerns against the defender, John Walker, in terms of the conclusions of the summons: Further, in the action at the instance of the said John Walker, against the said Peter Garriock and Others, finds that the said John Walker has failed to establish any grounds in fact which entitle him to damages as claimed: Therefore sustains the defences, assoilzies the said Peter Garriock and Others from the conclusions of the action at the said John Walker's instance, and decerns; Finds the said John Walker liable in expenses in the said conjoined actions: allows an account thereof to be given in, and remits the same, when lodged, to the auditor to tax and to report.

Note—This case raises a legal question of interest and importance to persons engaged in the shipment of goods, whether as shipowners or merchants; and so far as the Lord Ordinary has been able to inform himself, either from the arguments of counsel or from his own examination into the authorities, the question is one also of novelty.

The defender, Mr Walker, who, at the date of the shipment which has given rise to the litigation, was a merchant in Shetland, and now resides at Aberdeen, on 30th December 1871 shipped in bulk a quantity of whale blubber and heads on board of the pursuers' vessel, the ‘Petrel,’ in Shetland, to be conveyed to Peterhead for a slump freight of £50. In consequence of adverse wind and stormy weather, the voyage, which with fair weather may be accomplished in thirty-six hours, was prolonged for an unusual and extraordinary time; and in the course of it the captain landed the cargo at Lerwick, where, after being washed and cleaned, and otherwise operated on as afterwards explained, at considerable expense, it was again taken on board in casks, and so conveyed to Peterhead.

The vessel which contained the cargo in bulk was unable to carry the whole in casks, and a portion was sent on by another conveyance. The shipowners now sue for—(1) the freight of £50; (2) a sum of £113, disbursed at Lerwick in landing and operating on the cargo, and reloading it; and (3) a sum of £50, in respect of the detention of the vessel during the operations on the cargo, which occupied a considerable time.

The defender, to whom the cargo belonged, on the other hand, in the action at his instance, claims damages in respect of the operations performed on the cargo, which he alleges were productive of considerable loss to him, and he resists the pursuers' claim excepting for freight, on the ground—(1) that the operations were unnecessary and unwarranted; and (2) that if they became necessary, the costs must be paid by the pursuers, as the carriers of the goods, in respect of their undertaking to transport them for a slump freight, which he maintains is the measure of his liability.

The pursuers justify their unusual measures in the treatment of the cargo, and in incurring the expense which was thereby caused, on the averment that an absolute necessity arose for having the cargo landed and put in casks at Lerwick in the course of the voyage, in consequence of its having become decomposed, and having run greatly to oil; and that when landed it was found to be necessary, and at all events it was obviously of the utmost importance and advantage for the owner of the cargo, that it should by treated as was done, in order to prevent serious deterioration and great depreciation in its value.

Cases in which the question of the liability of the owner of goods for expenses laid out on them at an intermediate port after the goods had been damaged by the perils of the sea have arisen for decision. It has been held in a recent and important case on that subject in England, decided on appeal in the Exchequer Chambers, Notava, &c., v. Henderson (1872), 7 Law Reports (Queen's Bench) 225, that the shipmaster, the carrier of goods which had been injured by sea-water, was not only entitled, but bound, when the vessel put into a port for repairs on her way to her place of destination, to take measures for having the goods preserved, by having them unshipped, removed to a warehouse, and then dried, so as to arrest loss or deterioration, and thereafter re-shipped; and in that case the shipowner was held liable for a large sum of damages for his failure to fulfil this obligation. There, however, the damage to the goods was the result of a collision, and the bill of lading was subject to the exception of loss or damage arising from the collision. In the other cases in which similar questions have arisen for determination, either in the United Kingdom or in America, so far as the Lord Ordinary is aware, the occasion for landing, treatment, and re-shipment of goods has arisen from causes also excepted in the carrier's undertaking contained in the bill of lading, and have not, as in the present case, arisen from a quality necessarily inherent in the cargo itself; and the defender maintains that, in a case like the present, even where such operations are required in order to preserve the cargo, the expense must be defrayed, not by the owner of the goods, but by the ship-owner or other person who contracted to carry them on terms agreed on.

From the statements of the parties on the Record, as well as the examinations of the witnesses throughout the Proof, which lasted the greater

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part of two days, it was apparent that the parties differed materially as to the facts; and especially as to the alleged necessity for the landing, treatment, and re-shipment of the cargo. The defender further alleged that if such necessity really did arise, it was the result of undue delay on the part of those in charge of the vessel in proceeding with the voyage, for the consequences of which, therefore, the shipowner was responsible. At the close of the case, however, and when the defenders' counsel addressed the Lord Ordinary on the evidence, many of the points which had been contested throughout were not pressed; and the Lord Ordinary may say that, so far as his judgment is concerned, he has no difficulty in forming his conclusions on the evidence as to the matters of fact involved; and that, but for the question of law in the case, which is certainly of importance, he would have been prepared to give his decision at the close of the argument.

The facts of the case, which, in the opinion of the Lord Ordinary, have been established by the evidence, may be shortly stated. Some days before the 23d of December, a number of whales had been cast ashore or driven on the coast of Shetland, at Uyea Sound. The defender, Mr Walker, became the purchaser of them at a price of about £470; and, in the belief that they were bottlenosed whales, other two gentlemen in Peterhead joined with him in the speculation,—their purpose being to have the blubber and whale heads transported to Peterhead, to be there treated and boiled down for the purpose of manufacturing oil. The defender afterwards found that the whales were not of the description he had supposed, and the arrangement between him and the two gentlemen, above referred to, came, therefore, to an end. After the whales were stranded, but some days before the defender arranged to have them transported from Peterhead, while lying on the beach, and partly on an open field or fields adjoining the beach, they had been flenched,—that is, the flesh had been to a considerable extent separated from the blubber, and the heads had been separated from the bodies. The heads, however, had not been flenched, and it was intended they should undergo that operation at Peterhead.

In this state of matters, the defender arranged for the carriage of the blubber and heads, in terms of the contract or charter-party, dated 23d December 1871, entered into by Mr Scott, acting for him, and with his knowledge and authority, and Mr Garriock, one of the pursuers, and the leading owner of the ‘Petrel,’ a fishing smack or vessel of 51 tons register, and which carries about 62 tons. By the contract Mr Garriock agreed to charter the vessel ‘to proceed to Uyea Sound; and, after discharging the coals at present on board, load the whole blubber and heads there belonging to the said Mr Walker, not exceeding what the vessel can reasonably stow and carry, and proceed therewith to Peterhead, or as near thereto as she can safely come, and discharge the same, for a slump freight of £50 sterling.’

In order to aid in procuring despatch, Mr Walker purchased about twenty tons of a cargo of coals which then remained on board of the vessel, and which served as ballast for the voyage from Lerwick to Uyea Sound, which is accomplished, under favourable circumstance, in about six hours. The vessel afterwards proceeded to Uyea Sound, and the coals were there unloaded and delivered to the defender's agent; and the whale blubber, which was lying in pieces in its flenched state on the shore and adjoining ground, and whale heads, were put on board by the defender, being taken out in open boats, after having been partly drawn along the beach.

At the time of loading the captain signed and delivered to the defender's agent at Uyea Sound a bill of lading in ordinary terms, acknowledging delivery of 32 tons 19 cwt. of blubber, and 213 whale heads. The vessel having thereafter sailed on 31st December 1871, was compelled by an adverse wind to take shelter in Dousie Voe, where she was detained until the 3d of January 1872. On that day she sailed in further prosecution of her voyage, but was obliged to take shelter in Bressay Sound or Lerwick harbour, to which it was proper that she should proceed in any view for the purpose of being cleared at the Custom-house before going further south.

Unfortunately for the parties, a tack of very bad weather, which had begun in the end of December, continued until the 26th of January. Several vessels, lying in Lerwick harbour for shelter, were detained during that time before the weather admitted of their proceeding south. In the meantime, the cargo on board of the ‘Petrel’ had undergone a serious change. Decomposition and even putrefaction had set in, and a large quantity of oil had run off the blubber, so that a great portion of the cargo was in a liquid state. In this state of matters it would have been a most dangerous and unjustifiable proceeding on the part of the captain to put to sea with the cargo on board in bulk. It became necessary, for the safety both of the ship and cargo, that the cargo should be landed and put in casks. One necessary result of this operation was, that the vessel could no longer carry or contain the whole cargo.

When it became apparent to the shipmaster and to Mr Garriock, the owner, who resided at Lerwick, that the vessel could not proceed with her cargo, communications were made to the defender, Mr Walker, and his agent, Mr Scott, in order that arrangements should be made as to the best means to be adopted for carrying on the cargo. The defender at once, and indeed voluntarily, and before the full extent of the evil became apparent, furnished a number of casks for the purpose of receiving the drainage of the oil pumped up from the bottom of the vessel. He afterwards telegraphed to Peterhead, and, after the lapse of a considerable time, got a number of casks from that place, which he supplied, and which were used for the oil and blubber, and for the portions of the whales' heads which were, in the meantime, flenched.

At an early period in the communications between the parties, viz., on 16th January 1872, the defender also wrote an important letter to the pursuer, Mr Garriock, in which he referred to a proposal which had been made by Mr Scott, his agent, ‘to get the vessel to a quay, and put cargo into vats,’ as a course which seemed to meet his approval, and stated, ‘I am willing to pay for flenching the blubber, and putting it properly into the casks when they come, but will not relieve you of any liability you are under in the bill of lading. Throughout the correspondence, however, as a whole, while it is true that the defender furnished the casks, and never indicated that in his view the shipowner was bound to do so, he repeatedly

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declined to take any responsibility, intimating generally that he held the pursuers liable to deliver the cargo at Peterhead, in terms of the bill of lading. A question might be raised whether the letter of 16th January, above referred to, did not entitle the pursuers to perform the operations complained of at the defender's expense; but, in the view which the Lord Ordinary takes of the case, he has not thought it necessary to decide that question, which indeed was not the question argued by the parties.

Whether Mr Garriock, as the carrier of the goods, be in law ultimately liable for the expense incurred, without having a right of relief against the defender or not, in the opinion of the Lord Ordinary he acted a careful and prudent part in his whole proceedings in regard to the cargo, and did the best that the circumstances admitted of in the interest of the owner of the cargo. He was not himself possessed of the information or skill to determine what should be done with the cargo, so as to enable it to be carried to the best advantage to its destination. But having obtained a survey and reports by shipmasters as to the necessity for landing and reshipping it in its altered state in casks, in place of in bulk, he had a further examination made by persons of large experience in the manufacturing of oil from whale blubber and heads, and acted entirely on the recommendations of these parties.

The cargo was accordingly landed and treated as they directed, and the claim for disbursements, for which the pursuers now sue, arose in this way. The vessel was, at the same time, detained from the 26th of January to 26th of February by the operations on the cargo, and this detention is the ground of a claim by the pursuers of £50. The cargo was afterwards delivered at Peterhead. A few casks which the ‘Petrel’ could not carry were sent on by conveyance otherwise, and a part of the heads, for which no casks could be got, became so offensive as to be a nuisance, and at a public sale were disposed of for manure at 10s.

The defender, Mr Walker, in his defences, as well as in the counter action of damages at his instance, has maintained that the pursuers were to blame for the state into which the cargo got, in consequence of undue delay to proceed with the voyage to Peterhead, but the Lord Ordinary is quite satisfied that this defence is unfounded. The master is not only entitled, but bound, to avoid sailing in a dangerous gale, and a claim for oss will arise from his misconduct if he neglect this precaution’ ( 1 Bell's Com. 7th edition, p. 602). And the Lord Ordinary is of opinion that the master was not entitled to sail further than he did in the state of the weather, at any time between the time of the loading at Uyea Sound and the 26th of January, by which time the cargo was in the course of being landed at Lerwick. He is further of opinion that there was no undue delay up to the time of loading, and that the vessel was in her proper course in coming to Lerwick to be cleared at the custom-house.

The defender further sought to impose responsibility on the pursuers on the averment that the vessel was not provided with shifting boards, for the purpose of steadying the cargo, and that this in a great measure produced the state of the cargo. But although there was a partial conflict of evidence on this subject, the Lord Ordinary is satisfied that this requirement was sufficiently attended to.

After the evidence, it could not seriously be contended that, assuming the delay to have been inevitable or justifiable, the vessel could safely have provided to sea with her cargo in bulk. It is quite clear that it was absolutely necessary that it should be put into casks. In reference to this proceeding, however, the defender maintained that it should have been done on deck, or at all events, on the quay alongside which the ship was brought, and that the course taken of removing the cargo to Messrs Hay's premises caused a considerable waste of oil. It was further maintained that, even if the removal was expedient and proper, the cargo should not have been subjected to the treatment which it underwent, and the pursuer's claims are objected to on that account.