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5. The defenders having failed to exercise due diligence to make the " Clan Gordon" in all respects seaworthy, and the pursuers having suffered loss and damage through her unseaworthiness as condescended on, the pursuers are entitled to decree in terms of the conclusions of the summons.


The first and second of these pleas rest upon the breach by the respondents of the contract contained in the bills of lading, to deliver at the ports of Dalny or Taku Bar the goods shipped on the Clan Gordon " under order of the appellants or their assigns. This breach of contract admittedly took place. The burden rests upon the respondents to shew that they are not responsible for it.

By the charter-party it is provided, amongst other things, that the vessel, i.e. the "Clan Gordon," was tight, staunch, strong, and in every way fitted for the voyage, including proper ballast and dunnage, and should receive on board for the voyage a full cargo of refined petroleum in customary low top cases of 10 American gallons each, which the charterers (i.e. the appellants) were to provide and furnish. By the 21st clause of this charterparty it is expressly provided that it is subject to all the terms and provisions of, and all exemptions from liability contained in, the American statute known as the Harter Act, and that bills of lading shall be issued in conformity with that Act. And accordingly the bills of lading provided that the shipment was subject to all the terms and provisions of, and to all the exemptions from liability contained in, the Act of Congress of the United States relating to Navigation approved on 13th May 1893, i.e. the Harter Act.

The relevant provisions of the Harter Act are contained in its third section, which runs thus:

into the bills of lading, each of the latter (three in number) contained a clause, the relevant portions of which run as follows:

'It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea or other waters, by fire from any cause wheresoever occurring; by barratry of the master or crew, by enemies, pirates, or robbers, by arrest and restraint of princes, rulers, or people, riots, strikes, or stoppages of labour, by explosion, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery, or appurtenances, by collisions, stranding, or other accidents of navigation of whatsoever kind (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner, not resulting, however, in any case from want of due diligence by the owners of the ship or any of them, or by the ship's husband or manager)."

It will be observed that under the Harter Act it is the absence on the part of the owners of due diligence to make their vessel seaworthy which deprives them of protection, whereas under the clause in the bills of lading it is the omission of the owners of the ship or any of them, or of the ship's husband or manager of the like kind, to exercise due diligence which deprives the owners of the named protection.

I fancied it was suggested by Mr Macmillan, in the clear, ingenious, and able argument which he addressed to the House, that it was the duty of the first officer of a ship exclusively to superintend the stowage of her cargo, and that the master was altogether relieved of that duty by this officer. I do not think that that is quite so.

In Anglo-African Co. v. Lamzed (L.R., 1 C.P. 226), Willes J., at p. 229, said: 66 The master (i.e. the master of the ship) is by law required to be a competent stevedore himself." And in Carver on Carriage by Sea (6th ed.) it is, in section 48, laid down, on the authority of Hayn, Roman & Co. v. Culliford & Clark (1879, L.R., 3 C.P. 410; L.R., 4 C.P. 182), that it is the prima facie duty of the master to stow safely the goods carried in his ship. I observe that on page 1 of the respondents' case it is stated that At the time the 'Clan Gordon' sailed, two of her ballast tanks, Nos. 1 and 2 containing 95 and 195 tons of water respectively were full. She was loaded down to her marks."


"If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, It may, of course, well be that in any given agent, or charterers, shall become or be held case the responsibility for the proper stowage of responsible for damage or loss resulting from the cargo of a vessel is, by the agreement of the faults or errors in navigation, or in the manage-shipper and shipowner, thrown upon some person ment of the said vessel. . . or persons other than the master, such as In addition to the provisions thus imported stevedores. But such an arrangement, even if

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made, though it may relieve the master from attending to, or being responsible for, the actual operation of stowing the cargo, it by no means follows that he is relieved from the duty of accurately ascertaining what is the result of the completed work of stowage upon the stability of his ship, such as the relative weights of the portions of the cargo stowed in the hold and stowed atween decks.


V. Owners


navigated with empty ballast tanks. In the HOUSE fifteen voyages mentioned in this list only four oF LORDS. appear to have been made with empty tanks. Standard Besides, it is not the respondents' case that Oil Co. of the master was acting rightly in this case in New York emptying his ballast tanks after leaving New of the York. On the contrary, in their case, it is "Clan stated that it is not disputed that the immediate Gordon." cause of the loss of the Clan Gordon " was November 28, It is set forth in the respondents' case that the pumping out of the water from the two the "Clan Gordon " had a dead-weight carrying ballast tanks. Neither is it disputed that the capacity of 5675 tons, that she was a turret captain, in giving the order to pump those ship, a class of vessel differing from wall- tanks, committed an error in the management side steamers in the configuration of their of his vessel. There is not a particle of evidence sides; that Messrs Doxford & Sons, shipbuilders, to shew that Master M'Lean ever sailed this of Sunderland, had built nearly 200 of these vessel with empty water tanks, or that he ships, that they were good sea boats, of better applied to his ship the test he so much relied sea-going capacity, and rolling less heavily upon when all her ballast tanks were empty. than wall-sided ships, due to the fact that, owing He seems to have concluded that because to their configuration, less weight was carried the vessel shewed no tenderness and was safe in the upper part of the ship, relatively to the when her two ballast tanks were full, she would lower, than in wall-sided ships. But another also shew no tenderness and be safe when they result of their configuration was that, while up were empty. The sequel shews how fatal was to 18 degrees of inclination or heel they pos- his error in this respect, and it would appear sessed a greater power of righting themselves to me to shew too how much he needed instructhan did the wall-sided ships, yet beyond tion on this question of the stability of his that angle of inclination they possessed much ship when loaded with a homogeneous cargo, less power of righting themselves than did the or a cargo closely approaching to a homogeneous others. It is not disputed that before leaving one. New York on the 28th July 1919 the goods mentioned in the bill of lading had, with a number of tons of bunker coal, been loaded on the" Clan Gordon "and that the cargo so loaded was so stowed that the contents of the 'tween decks represented a density of 95 or thereabouts, as against a density of 100 represented by the contents of the lower holds and bunkers.

The captain in his evidence says that the cargo actually loaded was the first of its kind he had ever loaded himself, that after the pilot left him he tried on his ship the test for stability he had frequently tried before, from 1917 downwards. The test consisted in this-that when going full speed (10 knots) he would have the ship's helm put hard over both ways; that if the ship should be tender she would take a list. The Clan Gordon" shewed, he says, no sign whatever of tenderness under the test; the sea was, he says, more or less calm. He then adds: "I had my 290 tons of water ballast on board. Tanks Nos. 1 and 2 were full."

A not unnatural conclusion to draw from this evidence is that, if those tanks had been kept full, his ship would not have been lost as she was lost.

A list of voyages made by the " Clan Gordon " and by other ships with homogeneous cargoes from March 1909 to December 1915 was given in evidence, and apparently relied upon by the respondents to establish that this ship might, though heavily laden, have been safely

His description of what happened would appear to enforce this last conclusion. He says that after Tank No. 1 had been emptied, and No. 2 emptied all but 6 inches, the ship took a list of about 5 degrees to port. He was then steering on a course south-west true, making 10 knots; that about 4.30 he wanted to get bearings and ordered the quartermaster to port his helm; that the latter began to do so, a little at first; that nothing happened immediately; that he then ordered the quartermaster to put the helm hard aport; that then she began to list; at first she went over 14 degrees and then fell right over 60 or 70 degrees; that this happened very quickly. The ship then sank; that before she sank he saw her turn with her keel up. The sea was calm.

There is nothing to shew that what actually occurred would not appear to a competent seaman, properly instructed, to be the thing which would most probably occur under the circumstances. The evidence, I think, establishes that the master's handling of his ship amounted to gross and flagrant mismanagement for which there was no excuse. Though this be so, the main question still remains. Did the default of the master in this respect result from want of due, i.e. reasonable, diligence on the part of the owners of this ship, or any of them, or of the ship's husband or manager in not having the advice and instruction contained in document No. 141 [the builders'

HOUSE instructions] brought home to the mind and OF LORDS. knowledge of Captain M'Lean before they Standard entrusted him with the navigation of this ship Oil Co. of on her voyage from New York to the Eastern New York ports named in the charter-party with the cargo

V. Owners of the "Clan

November 23, 1923.

mentioned ?

laden with grain and flour, had a list to starboard of 4 degrees. That on reaching the open sea this list increased to 6 degrees; that about 2 P.M. the vessel heeled to starboard, placing the side of her turret deck under water; that she never righted again, yet she continued of It is not disputed, I think, that a ship may her course firing rockets (of distress presumGordon." be rendered unseaworthy by the inefficiency of ably); that the helm was starboarded with a the master who commands her. Does not that view to correct the list, but without effect; principle apply where the master's inefficiency that at 5 P.M. the helm was put hard aport but consists, whatever his general efficiency may be, she still maintained her dangerous angle of in his ignorance as to how his ship may, owing inclination, and at 10 P.M. sank out of sight. to the peculiarities of her structure, behave It was also proved that her ballast tanks had in circumstances likely to be met with on an been pumped dry before she left the port of ordinary ocean voyage? There cannot be any Adelaide. It was further found that this ship difference in principle, I think, between dis- when lost was practically a full ship, having abling want of skill and disabling want of approximately 6500 tons of cargo on board, knowledge. Each equally renders the master and in addition 70 tons of coal on her turret unfit and unqualified to command, and there-deck, 50 on the starboard side, 20 on the port fore makes the ship he commands unseaworthy. side, and about 50 on each side of the fiddle And the owner who withholds from the master deck. There was no finding that the cargo had the necessary information should, in all reason, be as responsible for the result of the master's ignorance as if he deprived the latter of the general skill and efficiency he presumably possessed.

shifted, nor was there any finding that the cargo had been badly loaded or stowed. This latter fact is very important, considering the extraordinary evidence given at the trial of this case by Mr Thos. Barr, the secretary and a director of the respondents.

The vital necessity, the appellants contend, was to get the contents of this document Well, this disaster obviously affected vitally No. 141 of process into the heads of the captains the pecuniary interests both of the builders, of turret ships. The mode or method in or by who were very extensive, if not the most which that could be effected is quite immaterial. extensive, builders of these turret ships, but It is the effect of the acquired knowledge on the also of the respondents, who were possibly the master's management of his ship that is the largest owners of them. Both naturally and matter of importance, since the master would by properly desired to prevent by all reasonable the instructions be warned against a somewhat precautions the recurrence of such a misfortune, undiscoverable or hidden danger, which, if and accordingly they turned their respective unknown or disregarded, might lead to lament- attentions to the best mode and method of loadable results. It is essential to consider the his- ing these turret ships under certain possible tory of this document No. 141 of process. The conditions so as to secure their stability. tragedy from which it sprang, the disasters it They accordingly determined to compile general aimed at preventing, the persons by whom it instructions for the loading of the turret ships. was framed, as well as those to whom it was Experiments and calculations were made to get distributed, are all important. In the year material for this compilation. Mr J. T. Holey, 1909 a ship named the "Clan Ranald," a sister the assistant chief draughtsman of the builders, ship of the "Clan Gordon," built by the same filled in the forms ultimately adopted. He builders and belonging to the same owners, the stated that the object of preparing these was respondents, while on a voyage from Australia the guidance of masters of these vessels. The to South Africa, laden with flour and grain, compilation is No. 141 of process. It is headed overturned and sank in fine weather, very much" General Instructions as to Loading Turret as did the Clan Gordon." Forty men were Ships, issued by Messrs William Doxford & drowned, including the master, chief engineer, Sons Ltd., Sunderland.” second, third, and fourth engineers, second mate, and chief steward. A public Court of Inquiry was held at Adelaide, Australia, under the Merchant Shipping Act of 1894, into the circumstances attending the loss of the ship. The report made by this Court was given in evidence. It is a very significant document. The finding of the Court as set forth in it is to the effect that the "Clan Ranald” at the time of her departure at 7 A.M. on the 31st of January,


Copies of this document, the witness Holey says, were sent to all the British owners of turret ships-a copy for each ship. In particular, he says, a copy was sent to the owners of the "Clan Gordon." He believes some of the owners asked for extra copies. He did not think that any owner ever wrote to say that he did not understand them. Mr Barr, the secretary of the respondent company, admits that the instructions contained in No. 141 of

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The respondents further contend apparently that their own instructions circulated for use by all masters of British turret ships were unintelligible to men of that class. If so, the transmission of these was not only an imposture, but an irritating interference with the business of owners and managers of turret ships.


V. Owners



process were the outcome of the " Clan Ranald instructions." If that evidence were true the HOUSE disaster. He says that the builders gave certain natural thing would have been to have withdrawn OF LORDS. details as to stability, that they drew them out these instructions, or to bring to the knowledge Standard for all the turret ships owned in this country, of the captains of these turret ships that they Oil Co. of and passed on similar notes to all these owners. should disregard them. This evidence, how- New York [His Lordship quoted from the evidence and ever, has this defect; it is directly contrary to of the resumed.] the evidence this very witness gave before the Board of Trade Inquiry held in 1920. His Gordon." attention is called to his answer then given and November 23, the question is put to him: When you were asked there, 'If you had had these instructions before you, don't you think you would have refrained from pumping out those water-ballast tanks at sea,' your answer was, 'Yes, I would A distinguished and intelligent officer of have refrained from pumping out those two experience, Captain Ruthven, was examined water-ballast tanks, at any rate till I had worked upon this and kindred points. His evidence off all my "tween decks coals.""" He then appears to me to be prima facie worthy of all adds: "I qualified that answer the following credit. It shews conclusively, I think, that the day. That was the answer I gave." He is mockery I have indicated was not gone through. then asked what altered his mind, and his He says: "If the instructions were sent out answer was: "I thought over it at night, and for the purpose of giving stability and informa- I thought I had not given a true reflection of tion for the working of the vessel, they should my mind about that, and I had that altered the be in the hands of the master. He is the only following day." I am afraid Captain M'Lean man to give effect to them unless he had trained has a great belief in judicial credulity. He his chief officer. I had all my officers trained." admits, however, that his ship turned turtle And when asked about the intelligibility and because the tanks were pumped out. He common sense of the instructions contained in admits his cargo was more or less homogeneous. document No. 141, he answered that they He says that from a rough calculation made seemed to him fairly clear. He could find from figures got from his chief officer he made no fault with them and would have no difficulty it out that he had close on 400 tons more weight in using them. When asked if in his view the in the lower hold than 'tween decks. It was captain of the "Clan Gordon" should at New shewn to him that in this he was entirely in York have gone into a series of calculations error; that there was no such difference of to find out the centre of gravity of the total weight between these two portions of the cargo, mass of his vessel, he replied in the negative, and he is then asked: 66 Would you have and said: "No, I put the saddle on the right emptied your tanks if you had known, as we horse the owners ought to give him the now know, that there was no such weight in instructions." Neither does the master M'Lean the lower holds ? and his answer was, say that the instructions were not intelligible"No, I would not have thought of such a to him. On the contrary, he makes his point upon them with full appreciation of the meaning of, at least, the first paragraph on which he is examined. He was asked what was obscure about that paragraph, and he being dissatisfied apparently by the admission of the respondents in the case that his vessel was loaded down to her mark, replied: "Now my ship was not down to her marks with a homogeneous cargo, if you call it homogeneous. She was 9 inches off her marks. Therefore, why should I require water-ballast? I say it is obscure." He had already sworn that if he had got instructions from his owners to do a certain thing he would have done it. He is then asked: "Do you mean to say that if you had this instruction (i.e. No. 141 of process) before you, you would have pumped out your water-ballast?" In reply he said: "I probably would, because my experience, and all the masters' experience, of these turret ships is entirely contrary to those


Captain Charles M'Intosh, a captain in the Royal Reserve (retired), one of the Assessors for the Court of Session in Scotland and for the Home Office, a Master of Trinity House, Leith, and a Master of Trinity House, London, was examined as a witness, and when shewn No. 141 of process and being asked was it plain, replied: "It's as plain as a pike-staff, this first thing. It teaches me that if a ship goes down to her marks with a homogeneous cargo, that is a cargo that fills every bit of space, it is not to be inferred by a sailor that because she is deep in the water she is able to stand a sea. This set of instructions draws the attention of the master to the important fact that he has to consider the relative density of the cargo in the lower hold and in the cargo 'tween decks. It draws his attention to it, as I understand it, quite clearly. It tells him, according to the various proportions of the cargo in these two



HOUSE holds, how to alter his water-ballast. All is OF LORDS. quite clear to me as a sailor."

v. Owners

of the


Standard After a most careful perusal of all the eviOil Co. of dence I have come to the conclusion that the New York respondents have failed to establish that the instructions contained in No. 141 of process were "Clan either obsolete, unintelligible, or useless. I think Gordon." that, on the contrary, even to masters of turret November 28, ships of general capacity as seamen, they were very helpful towards the safe navigation of those ships under conditions which frequently exist, by directing attention to the dangers which might arise from unskilful loading, and indicating how those dangers might be avoided. I think that the respondents by leaving the captain of the "Clan Gordon" in ignorance of these instructions, by failing to bring them to his notice so that he would grasp and understand them, failed to discharge the duty they owed to the shippers of the cargo which the vessel carried, and failed to use due diligence to make their ship seaworthy. The fact, if it be a fact, that few disasters befell the fleet of the respondents in the interval between the loss of the "Clan Ranald and that of the "Clan Gordon" is no proof that these instructions were useless, or were disregarded or were not helpful. It is quite as rational, indeed more rational, to conclude that this fortunate immunity was due to the observance of these instructions rather than to the disregard of them. It follows from what I have said that, in my view, the loss of the Clan Gordon did not take place without the fault or privity of the respondents within the meaning of the 503rd section of the Merchant Shipping Act, 1894. On the whole, I think the appeal succeeds, that the decision appealed from was erroneous and should be reversed, and that the appeal should be allowed, and I agree with the motion proposed.

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Lord Parmoor.-The appellants are a company incorporated under the laws of the United States of America, carrying on business in New York and elsewhere as oil merchants. The respondents have their registered office in Glasgow, and are owners of the s.s. "Clan Gordon," a turret steamer built of steel in 1900, and of the burden of 2292-45 tons register. In July 1919 the s.s. "Clan Gordon" loaded at the port of New York a cargo of motor spirit, and of refined petroleum in cases, and of refined wax in bags, to be delivered at Dalny and/or Taku Bar to the order of the appellants or "Clan Gordon their assigns. The s.s. sailed from New York on 28th July 1919. On the 30th of July 1919 she listed to port, turned turtle in a calm sea, and was totally lost with her whole cargo.

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The appellants brought an action for loss and



damage, pleading in law that the respondents, having failed to carry and deliver the cargo in terms of their contract, were liable in damages. It was alleged that the s.s. Clan Gordon " had been sent to sea in an unseaworthy condition, and that the defendants had failed to exercise due diligence to make the s.s. "Clan Gordon " in all respects seaworthy. At the hearing the appellants endeavoured to prove that the s.s. Clan Gordon " was not structurally seaworthy when she left New York. Both the Lord Ordinary, Lord Hunter, and the judges of the First Division have found that the s.s. "Clan Gordon" was structurally seaworthy when she left New York, being tight, staunch, and strong, and well equipped for the carriage of her cargo, and in a condition to encounter whatever perils a ship of that character and burden may be fairly expected to encounter on the voyage for which she is destined. The finding of the Lord Ordinary, and of the judges of the First Division, on this issue, was not questioned, on the hearing of the appeal before their Lordships.

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The question to be decided on appeal is whether the respondents committed a breach of duty for which they are liable, in not communicating to the captain of the s.s. Clan Gordon certain information which they possessed and which related to turret vessels of the 66 Clan Gordon " type. The Lord Ordinary found in favour of the appellants, but his interlocutor was recalled by the judges of the First Division. Lord Sands dissented, and was of opinion that the interlocutor of the Lord Ordinary ought to be affirmed.

A further question is raised as to the quantum of damages. The respondents claim that, if there is any liability, they are entitled, in terms of section 503 of the Merchant Shipping Act, 1894, to have their liability limited to £8 of each ton of the ship's tonnage.

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The s.s. Clan Gordon " was built for the respondents by Messrs William Doxford & Sons, shipbuilders, Sunderland. She belonged to a class of turret steamers, of which, at one time, the respondents had no less than twenty-nine in their fleet. Turret vessels, up to a certain angle of inclination, or list, possess a greater stability and power of righting themselves than wallsided vessels; but if this angle of inclination, or list, is exceeded, then, owing to the shape of a turret steamer, the centre of buoyancy is shifted, and there is a greater risk that the vessel may turn turtle. Captain M'Lean, who was master of the s.s. Clan Gordon on the voyage in question, was, as regards skill in seamanship, a competent master, but the appellants maintain that the ship was not well manned on the voyage in question, in that Captain M'Lean was not furnished with, and

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