Scottish Court of Session Decisions

By charter-party, dated 2d September 1886, entered into between Oolvils, Lowden, & Company, owners of the steamship “Ethelwolf” of Glasgow, and the Seville Sulphur and Copper Company, Limited, 80 George Square, Glasgow, it was agreed “that the said ship, classed 100 Al, and being tight, staunch, strong, and every way fitted for the voyage, shall with all possible despatch proceed direct to (with outward cargo for owners' benefit), and thence to the port of Seville, and there, after being reported to charterers' agent as ready to receive cargo, load in turn in the customary manner at the place ordered by said agent, a part cargo of cupreous sulphur ore and or other lawful merchandise, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, furniture, &c. Being so loaded, the said ship shall proceed to one of the undernoted ports (as ordered on signing bills of lading), and there deliver the said cargo at the place and in the manner directed by the consignees, to whom the ship is to be addressed … Penalty for non-performance of this agreement—estimated amount of freight (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and or errors or negligence of navigation of whatsoever nature and kind during said voyage always excepted).”

Following on this charter 350 tons of sulphur ore, belonging to the charterers, were by 4th December 1886 shipped on board the “Ethelwolf.” The bills of lading were in these terms—“Shipped in good order and condition by J. S. Macdougall, as agent for the Seville Sulphur and Copper Company, Limited, Seville, on board the good ship ‘Ethelwolf,’ whereof Cargill is master, now in this port, three hundred and fifty tons of sulphur ore, which are to be delivered (the act of God, the Queen's enemies, fire, and all other dangers and accidents of the seas, rivers, and navigation of what nature and kind soever excepted) in the like good order and condition at Swansea (North Dock), unto the Seville Sulphur and Copper Company, Limited, of 30 George Square, Glasgow, or to their assigns, freight and all other conditions

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as par charter.” The “Ethelwolf” sailed from Seville with her cargo on 5th December. On 10th December she was lost on the coast of Spain, near Vigo.

This was an action in the Sheriff Court at Glasgow at the instance of the charterers against the shipowners, concluding for payment of £1224, 12s. 6d., the value of the cargo shipped, in respect the defenders had failed to deliver it.

The ground of action was that the cargo had been lost in consequence of the unseaworthiness of the “Ethelwolf” when she sailed on the voyage in question.

The defenders pleaded that the loss of the “Ethelwolf” having been brought about by causes falling under the exceptions specified in the charter-party they were not liable.

According to the case for the pursuers the unseaworthiness consisted in the state of (1) the boiler and (2) the sails. The evidence for the pursuers was, that antecedent to the start from Seville the boilers were in a frail condition, and that there was leakage. Further, that on the 4th December, the night before the start, the engineer had filled the boiler with water from the river Guadalquiver, which was very muddy.

The nature of the boiler was thus described by the Sheriff-Substitute in his note—“The three furnaces with their apparatus of tubes, &c., are all inside the circumference of the boiler. Water goes around, above, and under them. The tops or ‘crowns’ of the furnaces are a good deal below the ordinary level of the surface of the water in the boiler. The test water-gauge or test-glass at the side shows (when in order) the height of the water in the boiler. The proper surface of the water space of the boiler should be somewhere within the range of the gauge. If there is no water in it the water may be too low; if it is all water, the water may be too high in the boiler, and air space or steam space too small. When once the boiler has been filled, the fires lighted, steam got up by degrees, and the engines started, the water that goes off in steam is for the most part returned to the boiler, after having been reliquified in the condenser. So the boiler mostly feeds itself when all is in order. But there is always a certain but small amount of waste of steam from various causes. To make up for this there is an auxiliary or supplementary feed pump, by which very small quantities of water can be added, so small as not to lower the temperature to an appreciable extent, or to let down steam. But if from any cause these feed pumps, principal or supplementary, are out of order, or if the boiler has had to be emptied for purposes of cleaning and repairs, there is nothing for it, if at sea, but to pump up cold sea-water into the boiler by means of the donkey-engine. This does no harm, or very little harm, if done when the boiler is cold; but if done when the boiler, though not so red hot as to explode, is still hot, it causes the metal to shrink, and the boiler therefore to leak severely. Again, it has to be remarked that a danger occurs when any portion of the boiler plates gets red hot, and is so when cold water is introduced; and the arched furnace crowns or tops, from their position, are naturally exposed to the greatest heat. As long as they are in contact with water the heat passes through them into the water, but if the water in the boiler is allowed to get so low that the upper surface of the crowns is uncovered, or if a thick coating of mud is allowed to accumulate on them between them and the water, the heat no longer passes through, but tends to make them red hot. The hotter they get the softer they get, and the greater tendency they have to sink, and to yield to any pressure from within the boiler, and if they yielded to any considerable extent they might crack, and the boiler become useless if it did not explode.”

According to the case for the defenders the boiler was in a good and seaworthy condition when the vessel left Seville, but they led evidence to show that in going down the Guadalquiver she struck on a mudbank; that she wasted steam in getting off, and more water had to be pumped into the boiler; and that it was then the muddy water was taken into the boiler, and not before leaving Seville.

On the 8th, when the “Ethelwolf” was at sea, the engineer noticed that the water in the gauge-glass, which was the only instrument to indicate the state of the water in the boiler, was very muddy, but that it indicated the boiler was full. He therefore stopped his auxiliary feed-pipes, but the same day the furnace crowns came down, and accordingly the boiler had to be emptied to avoid an explosion. As the ship, however, was then drifting towards the land, the engineer, at the urgent request of the captain, pumped in cold sea water while the boiler was still hot, which increased the leakage. The result was that the steam power gradually failed until on the morning of the 10th it failed altogether. An attempt was made to navigate the vessel under sail, with the result that three sails split out of five which were set. The “Ethelwolf” was abandoned on the 10th, and shortly afterwards became a total wreck.

The Sheriff-Substitute ( Erskine Murray) on 26th September 1887 pronounced this inter-locutor:—“…Finds (3) that on the whole it appears that when the ‘Ethelwolf” started from Seville on 5th December last she was not (whether from the weakly condition into which the boiler and its pipes had been allowed to get or from the boiler having been filled with muddy water at Seville, the mud from which constituted an element of danger to the boiler) in what constitutes a seaworthy condition in the eyes of the law: Finds (4) that on her voyage down the river Guadalquiver, she having stuck for half-an-hour on a bank and lost some steam, more muddy water had to be pumped into the boiler: Finds (5) that she proceeded on her voyage till on the 7th and 8th she experienced some rough weather with north-west winds off the coast of Spain near Cape Finisterre: Finds (6) that the gauge-glass which ought to show the depth of water in the boiler got out of order in consequence of the mud in the water, and on the afternoon of the 8th the furnace crowns began to sink, which showed either that they had got encrusted with mud or that the water in the boiler had gone dangerously low: Finds (7) that there can be no doubt that in reality the water in the boiler had got very low, and that much had been lost by leakage: Finds (8) that the engineer at once drew the fires, either with the intention (which he was unable to carry out from the position of the ship) of emptying and then repairing the boiler, or simply of enabling him to refill the boiler with

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cold water pumped in from the sea without danger of explosion: Finds (9) that the captain hurrying him to get up steam in consequence of the dangerous position of the ship, he refilled the boiler with cold water from the sea while it was still hot, which caused a shrinkage of the tubes and greatly increased the leakage, so that although by the early morning of the 9th he was able to get up steam, it was only to about one-third of the proper power: Finds (10) that after running about ten miles out to sea the captain resolved to steer for Vigo, and accordingly turned the ship's head to the south-east: Finds (11) that the steam power gradually failed (the leakage of the boiler increasing), till on the morning of the 10th it failed altogether, when they were only a few miles from Vigo, but unfortunately there was a thick fog, and though the wind was not high there was a strong sea from the west: Finds (12) that during the last few days when the steam power was weak or in abeyance an attempt had been made to utilise the sails of the ‘Ethelwolf’ to get her out of danger, but though some of them were of a little use, the most of them were found to be so weak that they either gave way at once or had to be repaired before they were used: Finds (13) that the ‘Ethelwolf’ being thus helpless, and another steamer, the ‘Hanover,” passing, a vain attempt was made to convey a tow-rope on board the latter with the object of the ‘Ethelwolf’ being towed into Vigo: Finds (14) that this failing the ‘Ethelwolf’ was abandoned; and her crew taken into Vigo by the ‘Hanover,’ and shortly thereafter the ‘Ethelwolf’ drifted on the rocks and became a total loss: … Finds on the whole case and in law (1) that (for the reasons stated in the note annexed hereto) the causes of the loss of the ‘Ethelwolf’ and its cargo do not fall under the exceptions in the bill of lading and charter-party; (2) that the “Ethelwolf” was not (in a legal sense) seaworthy at the time of her departure from Seville: Therefore repels the defences, and decerns against the defenders in terms of the prayer of the petition: Finds the defenders liable to the pursuers in expenses, &c.

“Note.—.… The law affecting charter-parties has been considerably modified and clearly defined very recently, especially in the three cases of the ‘ Inchmaree,’ the ‘ Xantho,’ and the ‘ Inchrhona,’ in each of which on 14th July last the House of Lords reversed a judgment of the English Court of Appeal, and in the judgment of the House of Lords in the case of Steele v. Craig, 4 R. (H. of L.) 103. Taken together the recent judgments bring out the following results:—

“In the first place, shippers proving nondelivery of goods establish a prima facie case, and it lies on the shipowners to bring the loss within one of the perils excepted in the bill of lading or charter-party—‘ Xantho,’ Court of Appeal, June 9, 1886, Times Law Reports, ii. 704; to this extent the judgment of the Court of Appeal was not interfered with by the House of Lords. The next thing is to ascertain the meaning and comprehension of the exception of ‘perils of the seas.’ A peril of the seas is any accident or casualty occurring at sea, by which sea-water gets into a vessel and does damage—‘ Inchrhona’ case, Hamilton, Fraser, & Company v. Pandorf & Company, Times Law Reports, iii. 768. It is not (though some eminent Judges formerly expressed views of a contrary nature) necessarily the result of storm or violent weather, or what may be called the sea's bad behaviour (Lord Bramwell in the ‘ Inchrhona’ case above cited, and ‘ Xantho’ case in H. of L., Times Law Reports, iii. 766). It does not cover every accident on board, for there may be a peril on the sea without its being a peril of the sea. For example, if rats eat part of a cargo, that is not a peril of the sea though it is a peril on the sea, but if the rats eat holes in the timbers or pipes of a seaworthy vessel, by which sea-water comes in and does damage, that damage is by a peril of the sea. Again, damage by accident to machinery on board a vessel is not a peril of the sea, but if as a consequence sea-water comes in, that is a peril of the sea—‘ Inchrhona‘ case above cited, ‘ Inchmaree’ case, Thames and Mersey Marine Insurance Company v. Hamilton, Fraser, & Company, July 14, 1886, Times Reports, iii. 764. The results of natural decay and ordinary tear and wear do not come under the exception—‘ Xantho’ case in House of Lords above cited. A peril of the sea must be something that happens in this transit— Steele v. Craig (H. of L) as above cited. There is really no difference (though the contrary was formerly held by some eminent Judges) between the meaning of the term ‘peril of the seas’ in an insurance policy, and the meaning of the same term in a bill of lading or charter-party; in both their meaning is as above stated. The difference in effect arises from the difference of the contracts. A policy of insurance is an absolute contract to indemnify for loss by perils of the sea, and the question of fault or negligence entering as an element among the causes of loss is of no moment, the proximate cause of the loss only is looked at, whereas in the case of a bill of lading or charter-party the contract is one of carriage, the general scope of which infers obligations on the shipowner—(1) to provide a seaworthy ship; (2) to carry with reasonable care, and so in the case of the latter contract the Court will look behind the immediate cause forming a pefil of the sea to ascertain whether a remote cause of that peril was not the unseaworthiness of the vessel or the want of reasonable care on the part of those in charge of it, which it could not do in the case of a contract of insurance, and the carrier will be usually under the necessity of establishing that no negligence of his had led to the calamity—‘ Xantho’ case above cited; ‘ Inchrhona’ case above cited; Mr Justice Willes in Grill v. Iron Screw Collier Company, 4 L.R.C.P. 614, as approved of in ‘ Xantho’ case.

“The next question that arises is as to the effect of the exception as to ‘errors or negligence of navigation’ contained in the charter-party of the ‘Ethelwolf.’ Such a clause, it has been held by the Courts, must always be interpreted strictly against the shipowner, and would not save him from the result of previous personal negligence of his own, e.g., if he had knowingly employed a drunken or inefficient captain ( Chartered Bank of India v. Netherlands Company, 10 L.R., Q. B., p. 532). Further, even though such an exception as to error or negligence did not specially bear only to refer to error, &c., at sea it will be held by the Courts only to apply to matters subsequent to the sailing of the ship with goods on board. Errors or

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negligence previous to that moment are not covered by it ( Steele v. Craig in H. of L. above cited). It is true that in the cases of Carmichael, 3 Times Law Reports, 636, and in that of the ‘ Warkworth,’ June 28, 1884, 9 L.R., Prob. Div. 145, the Appeal Court held that improper navigation included something negligently done or omitted to be done before navigation commenced; but these were cases not under charter-party or bill of lading, the former being at the instance of the shipowner himself against an Association of Shipowners assuring each other, and the latter in a collision case under the Merchant Shipping Act, circumstances which raise other questions than those in a contract of carriage. The case of Good, 6 L.R., C.P. 563, was of a similar nature to that of Carmichael, and in any event, these three judgments were by Courts inferior to the House of Lords, and if the decisions are contradictory those of the lower Court must yield. In reality, however, this difficulty cannot arise in the present case, for the charter-party of the ‘Ethelwolf’ limits the errors, &c., to those in the course of the voyage. So any such error, &c., previous to her starting from Seville is excluded.

Finally as a shipowner is bound to provide a seaworthy ship the question arises: What is seaworthiness? As defined by Lord Chancellor Cairns, ‘a vessel is seaworthy when it is in a condition to encounter whatever perils of the sea a ship of that kind and loaded in that way may be fairly expected to encounter.’ Want of seaworthiness as defined by Lord Blackburn is the non-fulfilment of the obligation to make the ship reasonably fit for the voyage ( Steele v. Craig, H. of L. as above cited). This seaworthy condition and reasonable fitness of the ship must be not only as regards its structural condition but also in other respects. Thus a port being left unfastened at the time of the loading of a vessel, in a position in which it could not be noticed or fastened by the crew during the voyage in consequence of cargo being piled against it, was held to make the vessel unseaworthy for the voyage ( Steele v. Craig above cited). Again the shipowner's guarantee of his vessel's seaworthiness is a guarantee against latent defects. Thus a latent defect in a crank shaft constitutes unseaworthiness, and when damage results exceptions in the bill of lading from perils of seas and navigation, from loss or damage from machinery, and from all and every dangers of the seas, and of navigation of whatever kind, are held not to apply to a vessel which was from such a latent defect unseaworthy at the time of sailing. (The ‘ Glenfruin,’ 1885, L.R. 10 Prob. Div. 103).

“Applying the above law to the case of the ‘Ethelwolf,’ it is clear that in the first place it lies on the shipowners as they have failed to deliver the goods to show that they are freed from liability by the exceptions in the bill of lading and charter-party.

There can be no doubt that the wreck of the ‘Ethelwolf’ was a peril of the sea whether there was stormy weather or not. Had this been the only exception the shipowners would have been bound also to show that the wreck could not have been avoided by the exercise of ordinary care and intelligence on their part, or the part of those for whom they were responsible. But the words inserted in writing in the charter-party as to errors and negligence modify this obligation. The onus still lies on them, but they discharge it if they prove that (the proximate cause of loss being a peril of the sea); the indirect cause was error or negligence of navigation during the voyage. It will not however save them if the indirect cause of the loss was error or negligence previous to the sailing of the ‘Ethelwolf’ from Seville. It has also to be kept in view that a breakdown of machinery even from a latent defect is not of itself a peril of the sea. Further, at the back of all this the defenders require to show that the ‘Ethelwolf’ was seaworthy when she started from Seville, not merely as regards construction, but as regards her condition in any respect; that she had not in fact on board the seeds of evil which developed in the course of the voyage, and became an essential cause of her loss”— [The Sheriff-Substitute then reviewed the evidence, and arrived at the conclusion stated in his interlocutor].

The defenders appealed; and argued—The onus of proving that the vessel was unseaworthy when she started on her voyage from Seville rested upon the pursuers— Boyson v. Wilson, March 6, 1816, 1 Starkie's Rep. 236. There were two occasions on which muddy water had been taken into the boiler, first at Seville, and secondly on the mudbank. If the furnace crowns came down by reason of the mud taken in on the bank, then that was a peril of the sea. If, however, they came down by reason of the muddy water taken in at Seville, which was not proved, that was an error in navigation, as having been done in preparation for the voyage, and came within the exceptions in the charter-party—The “ Xantho,” July 14, 1887, L.R., 12 App. Oas. 503; Steele v. Craig, March 16, 1877, 4 R. (H. of L.) 657, Bell's Com. i. 597, 663, 664; Pickup v. Thames Insurance Company, May 16, 1878, L.R., 3 Q.B.D. 595; Carmichael & Company v. Liverpool Indemnity Association, May 19, 1887, L.R., 19 QBD 242; Good v. London Protecting Association, June 23, 1871, L.R., 6 C.R. 563; “ The Warkworth,” June 28, 1884, L.R., 9 Prob. Div. 145. The accident, however, really arose from the negligence of the engineer, who thought that the boiler was full of water. He therefore stopped the auxiliary feed pipes; that caused the water to fall so low as to leave the furnace crowns exposed, and the fire from the furnace made them come down, so that the fires had to be extinguished. When the captain insisted on having steam got up the cold seawater caused the pipes which were still hot to shrink, and the boiler to leak, so that no head of steam could be got up. That was caused by the negligence of the engineer during the voyage, and so was within the exceptions in the charter-party. This case differed from that of Steele v. Craig, as there was in that case a fault in the structure of the vessel, viz., one of the ports was left open, which could not be put right during the voyage. As regarded the sails the evidence showed that these were quite in good order, and in fact helped the ship to wear round, but even if nothing had happened to them the ship could not have been saved by them alone.

The respondents argued—The only document to be dealt with here was the charter-party, as the bill of lading could not by a general reference to the charter-party incorporate any exceptions

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not expressly stated in the bill of lading itself— Russell and Others v. Niemann, June 24, 1864, 17 C.B. (New Series), 163, and 34 L.J., Com. Pleas, 10. The important question was, when was the muddy water taken into the boiler? Because it was admitted that mud in the boiler caused the accident in one of two ways, either the mud obscured the gauge glass, and so misled the engineer, or the mud caused the furnace crowns to become heated. It was admitted that they had taken water in at Seville, and that the Guadalquiver was a very muddy river, but it was said that the mud was really taken in after she had left Seville, so that it was a peril of the sea. But the “Ethelwolf” was only upon the bank for half or three-quarters of an hour, and could not have taken in enough muddy water in that time to have caused the accident. If a ship had in her, when she started upon her voyage, something which only needed moderately bad weather to turn it into a source of danger, then she was unseaworthy. Negligence in getting the ship ready before she started did not come within the exception of “negligence upon the voyage,” because the moment of starting was the time at which seaworthiness was to be judged of. That was held to be the law in the case of Steele v. Craig, July 20, 1877, 4 R. (H.L.) 103; Kopitoff v. Wilson arid Others, February 23, 1876, L.R., 1 QBD 377; Tattersall v. The National Steamship Company, March 11, 1884, L. R., 1 Q.B.D. 103; “ The Glenfruin,” March 31, 1885, L.R., 10 Prob. Div. 103. As regarded the sails, part of the equipment of a steamship were her sails; if she was seaworthy these must be in good condition, but they were not so here. It was enough for the pursuers to show that there was a possibility of the sails enabling the vessel to weather the storm.

At advising—