had not had brought to his notice, a document of general instructions as to loading of turret ships, issued by the builders, Messrs William Doxford & Sons, of Sunderland, and headed: "S.S.' Clan Gordon.' General Instructions as to Loading." The first instruction is that this vessel is not intended to load down to her marks, with a homogeneous cargo, without water-ballast. A homogeneous cargo, in this context, denotes a cargo of approximately the same density throughout, and of quantity sufficient to reasonably fill the whole cargo space. I agree in the conclusion of the Lord Ordinary, and Lord Sands, that the cargo on the s.s. "Clan Gordon" was, in substance, a homogeneous cargo within the meaning of this instruction. When the s.s. "Clan Gordon " was loaded in New York, two of her water-ballast tanks were filled, holding an aggregate amount of 290 tons. After leaving New York the captain determined that he would pump out the water-ballast from both tanks. The actual pumping began on the 30th. At noon it was reported that one tank was empty, and the second tank was then started. At 4 o'clock it was reported that the second tank only contained 6 inches of water on the port side. At about 4.30. an order was given to put the helm hard aport, and the 8.S." Clan Gordon " began to list, subsequently falling right over, and sinking in the open sea. The question is whether there was any duty upon the respondents, in the exercise of due diligence in their business as shipowners, to bring these general instructions to the notice of Captain M'Lean. By the terms of the contract of carriage, it was agreed that the respondents should not be liable for loss or damage occasioned by causes beyond their control by perils of the sea collisions, stranding, or other accidents of navigation, not resulting from want of due diligence by the owners. In addition, the provisions of section 3 of the Harter Act applied : that 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, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation, or in the management of the said vessel. In substance, the same considerations arise under the clause in the bill of lading, and under the above section of the Harter Act. If, therefore, the loss, of which the appellants complain, resulted from want of due diligence on the part of the respondents as owners of the ship, the respondents are under obligation, as carriers, either to deliver the goods shipped on the s.s. "Clan Gordon," or to pay damages HOUSE for loss. ઃઃ OF LORDS. v. Owners 1923. In considering whether, under these circum- Standard stances, the respondents committed a breach Oil Co. of of duty, I think that the tests stated by Lord New York Gorell in the case of Abram Lyle & Co. v. The of the Owners of the Steamship Schwan ([1909] " Clan A.C. 462) are applicable, although they refer to Gordon." conditions of an entirely different character. November 28, In that case the "Schwan" was held not to be seaworthy owing to the defect in a three-way cock, and that the shipowners were liable as their agent had not exercised reasonable care and diligence within the meaning of the second clause of the bill of lading. There was no evidence that the chief engineer or any of his subordinates had been warned about the danger, or knew anything of the peculiar construction of the cock, and if the cock had been of a proper and usual character there would have been no danger in its use. Lord Gorell says in his judgment: "The question thus seems to be: Is a vessel seaworthy which is fitted with an unusual and dangerous fitting, which will permit of water passing from the sea into her holds unless special care is used, and those who have to use the fitting, in the ordinary course of navigation, have no intimation or knowledge of its unusual and dangerous character, or for the need of the exercise of special care, and might, as engineers of the ship, reasonably assume and act upon the assumption that the fitting was of the ordinary and proper character, which would not permit of water so passing, however the fitting was used? I think this question should be answered in the negative." In the case under appeal I am unable to come to any other conclusion than that a vessel which requires special precautions of an unusual character to be taken in the maintenance of a sufficient water-ballast to ensure conditions of stability, which would not be known to a captain of ordinary skill and experience, and which have not been brought to his notice, although they had been specifically indicated to the shipowners in instructions sent to them from the shipbuilders, is not manned so as to be seaworthy, and that there was a duty on the respondents to have brought such instructions to the notice of the captain. The relevant considerations may be summarised in the following order: (1) The s.s. "Clan Gordon," when she sailed from New York, was approximately loaded down to her marks with a homogeneous cargo, so that any competent captain, to whom the general instructions issued by Messrs William Doxford & Sons had been communicated, would have known that the first paragraph applied to the conditions of loading in the s.s."Clan Gordon." (4) That the information conveyed to the respondents in paragraph (1) of the general instructions had not been brought to the notice of the captain of the s.s. Clan Gordon at the time she sailed from New York. This information was not a matter within his knowledge, although it is admitted that he had all ordinary knowledge in seamanship which a competent skilled seaman should possess. (5) That if the information contained in paragraph (1) of the general instructions had been communicated to the captain of the s.s. "Clan Gordon" he would not have pumped out the water-ballast, and the vessel would not have sunk. 1900, expresses quite frankly the reasons which Mr Macmillan, in his able argument on behalf The captain, in giving evidence at the enquiry unusual character known to the respondents, which it was their duty to bring to the notice of the captain of the s.s. "Clan Gordon." For reasons already stated, I think that it was the duty of the respondents to bring the instructions to the notice of the captain. Mr Macmillan further argued that the conditions of stability in a turret vessel could not be regarded as constituting an unusual danger, in that such a vessel was one of a substantial class of vessels, of which the merits and demerits were known, and of which the respondents had had a prolonged experience, both before and after the loss of the s.s. "Clan Ranald," a ship of similar The above considerations are, in my opinion, construction which had turned turtle and sunk amply sufficient to establish a prima facie case in 1910. Among other passages, he referred to that there was a duty on the respondents to the evidence of Captain Ruthven, who was communicate the instructions to the captain called at the trial on behalf of the appellants. of the s.s. "Clan Gordon." The question, He was asked: Would you, if you had been therefore, arises whether sufficient explanation in command of this ship when she was two days has been given by the respondents to justify out from New York, have emptied numbers them in their negative action. Mr Barr, who 1 and 2 tanks?" His answer is: "I certainly had been registered manager for the respondents would not have done that; if I had had those since the s.s. Clan Gordon was built in June instructions I should have filled another one. 66 12 If I had been long enough on the ship, I might have found out for myself what I found out from the builders." It was said that as the captain of the s.s. "Clan Gordon " had been in charge of the vessel for more than a year, he might have found out for himself the information contained in the instructions, and that it was more safe to rely on the experience of the captain than to fetter him by issuing special instructions. The fact that the captain of a vessel may find out for himself, after a certain period of time, a source of unusual danger, which was within the knowledge of the shipowners and might have been communicated directly to him in the first instance, is not sufficient to justify the shipowners in subjecting a cargo to the risk of loss, or to exempt them from liability for not exercising due diligence if such a loss has been incurred. Evidence of a similar character was given by Thomas Barr. He states as follows: "Well, the builders have not an actual experience of the vessel, and how their figures are arrived at we do not know. We do know that our masters and ourselves have the practical experience of the conditions under which these vessels are sailing, and we are rather inclined to take it that the experience which we have of these types puts us in a position of being better able to judge whether the ships could carry these cargoes or not." It is not possible to accept evidence of this character as an answer to the allegation that instructions, based on exact calculations of the stability of the vessel, the accuracy of which is not questioned, had not been brought to the notice of the captain. Lithgow v. Foster. Justiciary cases Statutory offence-Finance (No. 2) It was further suggested that the instructions 6. were in themselves ambiguous, and more likely to cause difficulty than to give information which would assist the captain. Mr Camps, a maritime expert, says that he did not have any difficulty in understanding the instructions, and that, if you take each paragraph by itself, he thinks that the first paragraph is perfectly clear. Evidence of a similar character is given by Captain Ruthven and Captain M'Intosh, and the three experts called for the respondents -Mr Wall, Professor Welch, and Dr Douglasdo not suggest that there is any difficulty in understanding the first paragraph of the instructions. In my opinion, the respondents have failed to establish that the instructions were in themselves of an ambiguous character, so that it was prudent not to embarrass their captains by bringing to their notice the information which they contained. In the result I agree with the conclusions of the Lord Ordinary and Lord Sands, that there was a duty on the respondents to bring the instructions to the notice of the captain of the S.S. Clan Gordon," and that the respondents 66 Act, 1915 (5 & 6 Geo. V. cap. 89), section 13 (4)— Stated Case. James Lithgow, shipbuilder, Langbank, in the county of Renfrew, was charged in the Sheriff Court of Argyllshire at Dunoon, on a complaint at the instance of Arthur Foster, officer of Customs and Excise at Greenock, in the county of Renfrew, which set forth: You are charged at the instance of the complainer that, being the owner of a ton truck chassis on which import duty had been paid in terms of section 12 1923. HIGH COURT (1) of the Finance (No. 2) Act, 1915, and having, on 6th April 1922, received repayment of said import OF JUSTI- duty from the Collector of Customs and Excise at CIARY. Greenock aforesaid, in terms of section 13 (4) of said Lithgow v. last-mentioned Act, in respect that said chassis had Foster. been, and would be, used solely in connection with the conveyance of goods or burden in the course of November 27, trade or husbandry, you did, by John Anderson, residing at Ormsary, in the parish of South Knapdale and county of Argyll, a chauffeur in your employment, (First) on 8th November 1922, on the public highway leading between the burgh of Lochgilphead in the county last mentioned and Ormsary aforesaid, use said chassis for a purpose you were not entitled to use it, viz. the conveyance of passengers and furniture; (Second) on 22nd December 1922, on the public highway leading between the pier at Ardrishaig in the parish and county last mentioned and Ormsary aforesaid, use said chassis for a purpose you were not entitled to use it, viz. the conveyance of passengers; (Third) on 8th January 1923, on the public highway leading between Ormsary aforesaid and the pier at Ardrishaig aforesaid, use said chassis for a purpose you were not entitled to use it, viz. the conveyance of passengers; and (Fourth) on 23rd January 1923, and place last mentioned, use said chassis for a purpose you were not entitled to use it, viz. the conveyance of passengers; all contrary to said Finance (No. 2) Act, 1915, section 13 (4); whereby, for each of the offences foresaid, you are liable to the penalties set forth in said last-mentioned Act and section thereof. The Sheriff-Substitute (Ballingall) found the respondent guilty of the charges (second) and (third) libelled, and fined him £2, 2s. The appellant obtained a stated case for the opinion of the High Court of Justiciary. The stated case set forth, inter alia : The said complaint called before me in the Sheriff Court at Dunoon, on 29th March 1923, when counsel appeared for the appellant and stated objections to the relevancy of the complaint. Having heard counsel, I made avizandum and adjourned the diet to 19th April 1923, on which date I repelled the said objections. Thereafter a plea of not guilty having been tendered for the appellant, I adjourned the diet to 24th May, on which date evidence for the prosecution and the defence was led before me. The appellant was represented by counsel. The following facts were admitted or proved: 1. That the appellant, who is a shipbuilder residing at Drums, Langbank, Renfrewshire, is proprietor of the farm of Ormsary in the parish of South Knapdale and county of Argyll. His name appears on the Voters' Roll in respect of his occupancy of said farm, and he makes a return on Schedule B to the Inland Revenue Authorities as a farmer, and is assessed for income tax purposes thereunder. 2. That for various periods in the course of the year the appellant resides at Ormsary. On those occasions he resides in the mansionhouse, the farmhouse being occupied throughout the year by his manager. 3. That in October 1921 the appellant purchased a ton truck chassis (No. S.B. 1087), upon which import duty amounting to £22, 17s. 9d. was paid in terms of section 12 (1) of the Finance (No. 2) Act, 1915 (5 & 6 Geo. V. cap. 89). On 6th April 1922 the appellant received repayment of the amount of the import duty from the Collector of Customs and Excise at Greenock upon a declaration and undertaking signed by him on 21st March 1922, that the ton truck chassis was constructed and adapted for use, and had been and would be used solely in connection with the conveyance of goods or burden in the course of trade or husbandry." The said ton truck chassis has a body on it for the conveyance of goods and it is constructed and adapted for that purpose. Inside the vehicle there are no seats with the exception of the driver's seat. On the occasions libelled, the vehicle was driven by John Anderson, a chauffeur in the appellant's employment. 4. That the appellant went from Drums to Ormsary by his motor car on 23rd December 1922. 5. That on 22nd December 1922 the vehicle was used for the purpose of conveying two domestic servants in the employment of the appellant, and personal luggage, from Ardrishaig Pier to Ormsary. On this occasion petrol stores for the farm were also conveyed in the vehicle. 6. That on 8th January 1923 the vehicle was sent from Ormsary to Ardrishaig with the luggage again in charge of the servants. On this occasion it also took out empty petrol tins and brought back fresh supplies of petrol. 7. That the appellant referred to the official form for the return of income tax under Schedule B. On the foregoing facts I was of opinion that on the said dates, viz. 22nd December 1922 and 8th January 1923, the use of the said vehicle by the appellant was not a use in connection with the conveyance of goods or burden in the course of trade or husbandry" within the meaning of section 12 (1) of the Finance (No. 2) Act, 1915. I accordingly held charges 2 and 3 of the said complaint to be proved, and convicted the appellant. I imposed a fine of £2, 2s. in respect of said offences. The reasons which led me to the conclusion which I reached are set forth in the note which is printed as an appendix hereto. The Question of Law for the opinion of the Court was: The contention for the complainer is that on the four occasions libelled the vehicle was used for purposes other than exempt purposes within the meaning of section 13 (4) of the Finance (No. 2) Act, 1915. The statute, unfortunately I think, does not specify what the exempted or permitted purposes are. It merely declares that the vehicle, in order to entitle it to an exemption from duty, must be "used solely in connection with the conveyance of | goods or burden in the course of trade or husbandry -a use which is obviously open to construction. Learned counsel for the respondent argued that the language of the Act above quoted covers uses reasonably incidental to the business of a farmer; and I was referred to several English authorities where the same language, but in a different statute, had been under construction. It is admitted, I think, that the conveyance of passengers in the ordinary sense of the term would not be a permitted purpose within the meaning of the Act. 66 In Latchford v. Kelsey ((1907) 96 L.T. 620), to which I was referred, the respondent was a farmer who owned a cart which he was in the habit of using for the of farm implements and produce on conveyance the farm, and also for the purpose of occasionally driving his farm hands to and from their work on the farm. The cart was once used for conveying, among others, a person who was on a visit to the farmer and who had during his visit assisted in the farm work. The farmer was charged with keeping his carriage without a licence. The Court of Appeal held that the magistrates were right in refusing to convict, Lord Alverstone C.J. observing that he was not sure, that in view of the almost universal habit of the labourers riding in farm carts to and from their work, they would not be a burden' within the meaning of the section." In Cook v. Hobbs ([1911] 1 K.B. 14), to which reference was also made, Lord Alverstone C.J. observed (p. 17) that he was not clear what was meant by the word 'burden," but he thought it included persons who were taken to a market along with goods for the purpose of assisting in selling them there. And Lord Coleridge observed (at p. 18): "If, as in this case, the vehicle is constructed solely for the purpose of conveying goods or burden in the course of trade or husbandry, the mere carrying to market of a wife and son for the purpose of selling the goods does not, in my opinion, make the cart taxable on the ground that it is not solely used for the exempted purposes. It may be that the word 'burden was inserted in the section with the very object of meeting such a case. The uses on the two intermediate occasions— 22nd December 1922 and 8th January 1923—however, seem to me to fall within a different category. It was argued for the respondent that when he goes to Ormsary in his capacity of farm proprietor to superintend the business of his farm, he is entitled to have his domestic servants and luggage conveyed to his house at the farm in this particular vehiclethat that is a use of the vehicle reasonably incidental to the business of a farmer. It may perhaps be said that the respondent's domestic servants, while he is at Ormsary (qua farmer), form part of his farm establishment, and that, for the time being at any rate, they are engaged in farm work. But can it reasonably be said that domestic servants and HIGH COUBT CIARY. personal luggage are conveyed to and from Ormsary, on these occasions, in the course of trade or husbandry? Take, for instance, the return journey: OF JUSTIit seems to me that the moment the domestic servants leave Ormsary they are divested of any Lithgow. character such as that of farm servants which they Foster. may have temporarily assumed, and that on the return journey they are really being conveyed to Ardrishaig Pier—a distance of 12 miles-as passengers in order that they may return to their normal avocations as domestic servants in the respondent's private residence at Langbank. I find myself unable to hold that the use of the vehicle on the second and third occasions libelled was a use "in connection with the conveyance of goods or burden in the course of trade or husbandry," within the meaning of the section, and accordingly I think that there ought to be a conviction in respect of the use of the vehicle on these occasions. The Finance (No. 2) Act, 1915 (5 & 6 Geo. V. cap. 89), enacts: Section 13. (4) Motor cars which are proved to the satisfaction of the Commissioners of Customs and Excise to be constructed and adapted for use, and intended to be used solely, as motor omnibuses, or motor ambulances, or in connection with the conveyance of goods or burden in the course of trade or husbandry.... and chassis, component parts, and accessories which are so proved to be intended to be used solely for any such motor cars, shall not be charged with the new import duty. If, while the duty on motor cars, motor bicycles, and motor tricycles and accessories and component parts thereof under this Act remains in force, any person. uses any motor car, chassis, accessory, or part which has been exempted from duty under this provision for any purpose other than the purhe shall be liable on poses therein mentioned. summary conviction to a fine not exceeding one hundred pounds, or, at the option of the Court, to imprisonment, with or without hard labour, for a term not exceeding six months. If it is shown to the satisfaction of the Commissioners of Customs and Excise that any motor car, chassis, .... has been and is being exclusively used for purposes which entitle it to an exemption from duty under this provision, the Commissioners may, subject to such conditions (if any) as they think fit to impose, repay any duty paid on the car on importation. November 27 1923. |