the makedonia

8/3/2019 The Makedonia

1/33

[1962] Vol. 1 Lloyd's Rep. 316

ADMIRALTY DIVISION

Feb. 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, Mar.

7, 1962

____________________

THE "MAKEDONIA"

Before Mr. Justice HEWSON

Unseaworthiness-Inefficiency of crew-Right of under-deck and/or

on-deck cargo-owners to recover their share of salvage award from

shipowners-Liability of such cargo-owners to make general average

contribution-Liability of shipowners for cargo jettisoned or burned

- Canadian Water Carriage of Goods Act, 1936, Art. III (1).

Carriage of plaintiffs' timber in defendants' steamship Makedonia

from Western Canadian ports to U.K., under bills of lading

incorporating Canadian Water Carriage of Goods Act, 1936 - Bills of

lading providing that general average should be paid under

York/Antwerp Rules, 1950, and that English law should governcontracts - Clause 6 of bills of lading provided:

. . . received, kept, carried and discharged at the sole risk of the

owner of such cargo and the Carrier shall not under any

circumstances of any kind whatsoever be liable for any loss of or

damage or delay thereto, whether or not such loss, damage or delay

may be due to the act, neglect or default of the Carrier or the master,

pilot, officers, crew, stevedores . . . or other person whomsoever for

whom the Carrier may be responsible, whether in the service of the

Carrier or not, and whether or not the above-named vessel or any

other vessel or craft in which the said cargo may be loaded was

unseaworthy at the time of loading or sailing or at any other time.

Makedonia unable to continue voyage under her own power when in

mid-Atlantic owing to contamination of fuel oil and lack of feed

water-Salvage services (towage) received - Some deck cargo

jettisoned; some deck and under-deck cargo burned to provide steamfor auxiliaries during towage; port of refuge expenses incurred; and

salvage award under Lloyd's Form of Salvage Agreement of 44,000-

Claim against shipowners by plaintiffs in first action to recover their

share of salvage award; and for declaration that they were not liable to

make general average contribution - Similar claims against shipowners

by plaintiffs in second action, and for loss of their cargo


2/33


Adm. The "Makedonia"

by jettisoning and/or burning-Counterclaim by shipowners, in second

action, for declaration that they were entitled to recover general

average contribution from those plaintiffs-Contention by plaintiffs

that, under Art. III (1), if vessel was unseaworthy on leaving

bunkering port owing to defective bunkers or contamination of fueloil, shipowners were responsible for lack of due diligence on part of

ship's engineers at beginning of that stage and were precluded from

exemptions in Art. IV (2) - Meaning of "voyage" in Art. III (1)-

Evidence as to inefficiency of ship's engineers; and as to

contamination of fuel oil by sea water during voyage.

-Held, (1) (a) that, under Art. III (1), the obligation on shipowners was

to exercise due diligence before and at beginning of sailing from

loading port to have vessel adequately bunkered for first stage and to

arrange for adequate bunkers at intermediate ports so that voyage

could be performed; that that obligation as to bunkering included

provision of feed water; and that shipowners performed that

obligation; (b) that the equipment and machinery were satisfactory;

and that immediate cause of breakdown was lack of burnable fuel oil

owing to inefficiency of ship's engineers; and (c) that that breakdown

caused all loss sustained by plaintiffs; (2) (a) that shipowners had

failed to prove that they had exercised proper care in appointment ofship's engineers; (b) that ship's engineers were inefficient at

commencement of voyage; and (c) that shipowners had failed to

exercise due diligence before and at beginning of voyage properly to

man their vessel; (3) thatMakedonia was unseaworthy in that she was

improperly manned and shipowners had failed to provide a plan of

ballast and fuel system; that salvage, burning of cargo and port of

refuge expenses were all occasioned by this unseaworthiness; and that

shipowners were in default; (5) that shipowners were not obliged to

save the cargo from physical loss because they were not liable for it

(Clause 6), but, having done so, they were entitled to expect plaintiffs

to pay their contribution towards general average, salvage and port of

refuge expenses - Judgment for plaintiffs in first action and plaintiff

owners of under-deck cargo in second action; judgment for

shipowners against plaintiff owners of deck cargo in second action.

____________________

The following cases were referred to:

Anonity, [1961] 1 Lloyd's Rep. 203;

Arabert (No. 2) (Limitation), [1961] 1 Lloyd's Rep. 363; [1961] 3

W.L.R. 215;

Cairnbahn, [1914] P. 25;

Carron Park, (1890) 15 P. 203;

Gosse Millerd, Ltd. v. Canadian Government Merchant Marine,

Ltd., [1929] A.C. 223; (1928) 32 Ll.L.Rep. 91;

Harris (Harella), Ltd. v. Continental Express, Ltd., and BurnTransit, Ltd., [1961] 1 Lloyd's Rep. 251;

Hongkong Fir, [1961] 1 Lloyd's Rep. 159;

Milburn & Co. v. Jamaican Fruit Importing and Trading

Company of London, [1900] 2 Q.B. 540;

Moore and Another v. Lunn and Others, (1922) 11 Ll.L.Rep. 86;

Muncaster Castle, [1959] 2 Lloyd's Rep. 553;

Norman, [1960] 1 Lloyd's Rep. 1;

Northumbrian Shipping Company, Ltd. v. E. Timm & Son, Ltd.,

[1939] A.C. 397; (1939) 64 Ll.L.Rep. 33;

Standard Oil Company of New York v. Clan Line Steamers, Ltd.,

[1924] A.C. 100; (1923) 17 Ll.L.Rep. 120;

Tempus Shipping Company, Ltd. v. Louis Dreyfus & Co., Ltd.,

[1930] 1 K.B. 699; (1930) 36 Ll.L.Rep. 159; [1931] 1 K.B. 195;

(1930) 37 Ll.L.Rep. 273; [1931] A.C. 726; (1931) 40 Ll.L.Rep.

217;Vortigern, [1899] P. 140.

____________________

In this consolidated action, the plaintiff owners of cargo lately

laden on board the steamship Makedonia, sued her owners for

damages for breach of contract and/or duty in the loading,

handling, custody, care and discharge of the plaintiffs' cargo in

the defendants' vessel in 1956.

TheMakedonia broke down in mid-Atlantic on a voyage from

Vancouver to the United Kingdom with a cargo of lumber. She

had to be towed to the Azores. The first action was brought by

the owners of seven parcels of timber shipped under deck,

under seven bills of lading. In the second action, 46 cargo

owners with 191 parcels, shipped under 191 bills of lading, both

on deck and under deck, made similar claims.

The plaintiffs claimed as damages, their share of a salvage

award, interest and costs; a declaration that they were not liable

to contribute in general average, and the cancellation of

guarantees given on behalf of the plaintiffs by way of general

average security.

Certain of the plaintiffs in the second action also claimed for

loss of cargo by jettison or burning. A further claim by them,

arising out of damage to cargo by oil or water, was settled.


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The plaintiffs alleged that the breakdown was due to the

defendants' failure to provide a seaworthy ship (particularly in

that the officers were incompetent), and asked the Court to

decide liability, the question of the amount of damages, ifnecessary, to be referred to the Admiralty Registrar.

The defendants, while admitting that the plaintiffs had a good

title to sue, and that salvage services were rendered to the ship

and cargo, denied liability and counterclaimed for a declaration

that they were entitled to recover general average contribution

from the plaintiffs.

According to the statement of claim of the plaintiffs in the first

action, under seven bills of lading dated in Vancouver in

January, 1956, and signed by the master or agent of the

defendants' steamship Makedonia, there were shipped in good

order and condition on board the vessel for carriage to London,

a quantity of Douglas Fir lumber, the property of the plaintiffs.

It was expressly provided by Clause 1 of the conditions

printed on the reverse of the bills of lading that the bills oflading should have effect subject to the provisions of the Water

Carriage of Goods Act, 1936, of the Dominion of Canada and

that that Act should be deemed to be incorporated therein.

Art. III (1) of the Rules contained in the Schedule to the Act

provided that the carrier should be bound before and at the

beginning of the voyage to exercise due diligence to make the

vessel seaworthy and properly to man, equip and supply the

vessel, and Art. IV (1) of the Rules provided that whenever loss

or damage had resulted from unseaworthiness the burden of

proving the exercise of due diligence should be on the carrier.

Those plaintiffs said that, on the true construction of the Rules,

the defendants were further bound to exercise due diligence to

make theMakedonia seaworthy and properly to man, equip and

supply her before and at the beginning of each bunkering stageof the voyage, or, alternatively, that the defendants impliedly

warranted that before and at the beginning of each bunkering

stage they would exercise due diligence to make the Makedonia

seaworthy and properly to man, equip and supply her for that

stage.

Those plaintiffs alleged that, on leaving the ports of shipment

named in the bills of lading, theMakedonia was unseaworthy in

the following respects:

(a) There was a crack in the main condenser. Alternatively themain condenser was liable to develop a crack and developed a

crack during the voyage.

(b) A great number of the condenser pipes leaked or were

liable to leak.

(c) The evaporator leaked or was liable to leak.

(d) Owing to steam wasting from the main engine packings a

consumption of over 20 tons of feed water was required per

day.

(e) The metallic packing for the I.P. valve spindle required

replacing.

(f) The diameter of the spindle rod which was originally 4 in.

was worn down to 358 in.

(g) The boilers required internal washing and/or chipping.(h) The piping of and between double bottom tanks Nos. 1, 2

and 3 and of and between double bottom tanks Nos. 7 and 8

leaked by reason of which ballast carried in any one of these

tanks Nos. 1, 2 or 3 was able to find its way into fuel oil carried

in any other of these tanks and ballast carried in tank No. 8 was

able to find its way into fuel oil carried in tank No. 7 (port).

(i) The oil fuel feed pumps, transfer pump, feed pumps and

ballast pumps were defective, with the result that on and after

Feb. 11, 1956, ballast could not be pumped out of double

bottom tank No. 4; on and after Feb. 13, 1956, fuel oil could not

be pumped direct from double bottom tank No. 1; on and after

Mar. 1, 1956, fuel oil could not be pumped from double bottom

tank No. 7 starboard and, at San Pedro and/or Balboa, No. 2

double bottom tank could not be fully pumped out before oilwas pumped into the tank. Alternatively, the trim of the vessel

was such as to render it impossible or difficult to work the

pumps.

(ia) The heating coils passed through the lightening holes of

the tank floors and were ineffective when the oil dropped below

that level. The heating coil in No. 1 double bottom tank was

ineffective to enable the oil in that tank to be pumped direct

from the time of the vessel's departure from Vancouver until the

oil in that tank was transferred to No. 3 double bottom tank

between Feb. 13 and 27, 1956.


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(ib) Certain valves were not clearly marked so that it was

possible for an engineer accidentally to open a steaming out

valve when he intended to open a heating coil valve.

(j) There was insufficient fresh water to feed the boilersbeyond Feb. 25, 1956, when theMakedonia was in the Atlantic

Ocean in an approximate position of lat. 29 32 N., long. 49 10

W.

(k) The vessel had insufficient fuel oil to carry her to London.

(l) The quantity of anchor cable had been reduced by reason of

a previous casualty to six shackles on each anchor.

(m) Deck cargo was so stowed as to cause the Makedonia to

list up to 13 deg. to port and up to 10 deg. to starboard, and, on

Feb. 6 and/or 22 and/or 24, 1956, to necessitate the filling up of

No. 1 and/or No. 2 double bottom tanks with ballast for the

stability and safety of the vessel notwithstanding that at the time

of such filling one or both of the tanks still contained some

quantity of fuel oil. The vessel was at all times on the voyage so

tender that whenever one of her double bottom tanks was emptyof fuel oil it had to be filled with ballast thereby leading to risk

of contamination of fuel oil pumped in at later bunkering ports

or transferred from other double bottom tanks.

Those plaintiffs alleged, alternatively, that theMakedonia was

not properly manned in that the chief engineer and/or the other

engineers were so incompetent and/or inexperienced and/or

lacking in knowledge of the vessel's pumping and piping

system as to be unable to secure that when the vessel was

carrying ballast water in some of her double bottom tanks and

fuel oil in others the water and oil did not become intermingled,

or to ascertain in time to remedy the situation that the vessel's

fuel oil was or was becoming unburnable.

Those plaintiffs also alleged that, on leaving Balboa, at which

port theMakedonia called on Feb. 11, 1956, for the purpose ofbunkering, she was unseaworthy and/or not properly equipped

or supplied in that:

(a) There was an insufficient quantity of sound fuel oil to

enable her to reach London.

(b) The fuel oil contained in one or more of double bottom

tanks Nos. 1, 2 and 3 was mixed with such a quantity of salt

water as to be unburnable.

(c) There was insufficient fresh water to feed the boilers

beyond Feb. 25, 1956.

By reason of the unseaworthiness alleged above, on and after

Feb. 17, 1956, theMakedonia had difficulty in raising sufficientsteam to proceed, and, on Mar. 1, 1956, finally broke down and

became disabled owing to lack of steam in the Atlantic Ocean

in an approximate position about 870 miles from Ponta Delgada

which was the nearest port. By reason of unseaworthiness

owing to her list, and the fact that she was tender her situation

in the North Atlantic in winter was rendered even more perilous

than it would otherwise have been.

Owing to the vessel's disablement it was necessary for her to

accept salvage services. By reason of her unseaworthiness

owing to her having reduced her anchor cable, it was not

possible for the Makedonia to be towed by a sister ship, the

North Queen, which reached her on Mar. 3, 1956, with the

result that it was necessary to accept the services of the Agios

Georgios Vwhich reached theMakedonia on Mar. 5, 1956, andproceeded to tow her to Ponta Delgada.

The plaintiffs said that it was necessary (a) in order to raise

steam in an attempt to transfer sufficient chain from the port

anchor to the starboard anchor to enable the North Queen to

take the Makedonia in tow, to jettison about 65 standards of

timber from the latter vessel's deck cargo, and (b) in order to

raise steam for her steering and generator, to burn a quantity of

her deck cargo. None of those plaintiffs' cargo was jettisoned or

burnt.

Accordingly, those plaintiffs' cargo became liable for salvage

charges and costs whereby the plaintiffs suffered loss and

damage.

On the arrival of the Makedonia in London, the defendants

refused to release the plaintiffs' cargo without a general averagedeposit or a guarantee of payment of any contribution to general

average which might be found due in respect of the cargo.

Accordingly, on Mar. 22, 1956, a guarantee of such payment

was given by or on behalf of the plaintiffs in order to obtain the

release of the cargo, whereby the plaintiffs incurred expense

and suffered loss and damage.

Those plaintiffs claimed:

(1) Judgment against the defendants and their bail for damages

for breach of contract together with interest and costs.


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(2) A reference, if necessary, to the Admiralty Registrar to

assess the amount of such damages.

(3) A declaration that the plaintiffs were not liable to

contribute any sum in respect of general average.(4) Cancellation of the guarantee given on Mar. 22, 1956.

In their amended further and better particulars of the statement

of claim those plaintiffs said that No. 1 double bottom tank

carried fuel oil from the time of the vessel's departure from

Vancouver until after her departure from Balboa when at some

time between about Feb. 13 and 27, 1956, this was transferred

to No. 3 double bottom tank and No. 1 double bottom tank was

then ballasted.

No. 2 double bottom tank contained first fuel oil and then

ballast during the voyage from Vancouver to San Pedro. At San

Pedro, fuel oil was pumped into the tank notwithstanding that

the ballast had not been completely pumped out. Some oil was

used from this tank on departure from San Pedro until about

Feb. 6, 1956, when the tank was filled up with ballast. Furtheroil was pumped into this tank at Balboa although again the tank

had not first been pumped dry so that, on leaving Balboa, the

tank contained fuel oil which was shortly afterwards found to

be badly contaminated by salt water.

No. 3 double bottom tank contained fuel oil on the vessel's

departure from Vancouver part of which was used by the time

the vessel arrived at San Pedro. At San Pedro, further fuel oil

was taken in the tank, part of which was used during the voyage

to Balboa. At Balboa, further fuel oil was taken in the tank part

or all of which was thereafter used. Thereafter at some time

before Feb. 27, 1956, oil was transferred from No. 1 to No. 3

double bottom tank which was afterwards found to be badly

contaminated by salt water.

If the Makedonia had been in a seaworthy condition onleaving Vancouver and throughout the voyage a quantity of

about 100 tons of fresh water would have been the minimum

sufficient for feeding the boilers, but in the condition in which

she was, resulting in a consumption of 20 tons of feed water per

day before the date of her breakdown, a far greater quantity

would have been required. The plaintiffs said that the fact that

fresh water for the boilers ran out on Feb. 25, 1956, was

evidence of its insufficiency.

If none of the fuel oil had become contaminated by salt water

and the vessel had otherwise been in a seaworthy condition, a

quantity of about 1350 tons would have been sufficient. The

plaintiffs said that the fact that, on Mar. 1, 1956, the vessel wasleft with no burnable fuel oil was evidence of its insufficiency.

The previous casualty referred to in the statement of claim was

the breakdown of theMakedonia on Oct. 31, 1955, while bound

in ballast from Japan to Vancouver, as a result of which she

drifted for about 13 days in heavy weather until picked up by

the salvage tug Sudbury and towed to Vancouver.

If the vessel had been in a seaworthy condition, a quantity of

about 700 tons of sound fuel oil would have been the minimum

sufficient.

If the vessel had been in a seaworthy condition, a quantity of

about 50 tons of fresh water would have been the minimum

sufficient for feeding the boilers, but in the condition in which

she was a far greater quantity would have been required.

By their defence in the first action, the defendants said that thebills of lading provided that general average should be payable

according to York/Antwerp Rules, 1950. The Canadian Water

Carriage of Goods Act, 1936, and the Rules scheduled thereto,

further provided as follows:

3. There shall not be implied in any contract for the carriage

of goods by water to which the Rules apply any absolute

undertaking by the carrier of the goods to provide a seaworthy

ship.

SCHEDULE

Article IV

1. Neither the carrier nor the ship shall be liable for loss or

damage arising or resulting from unseaworthiness unless

caused by want of due diligence on the part of the carrier tomake the ship seaworthy, and to secure that the ship is

properly manned, equipped and supplied . . .

2. Neither the carrier nor the ship shall be responsible for loss

or damage arising or resulting from,

(a) act, neglect, or default of the master, mariner, pilot or the

servants of the carrier in the navigation or in the management

of the ship;


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(q) any other cause arising without the actual fault and

privity of the carrier, or without the fault or neglect of the

agents or servants of the carrier . . .

The defendants contended that if (which was denied) thevessel was unseaworthy in any of the respects alleged, the same

did not arise or result from want of due diligence on the part of

the defendants their servants or agents to make the vessel

seaworthy, and, accordingly, the defendants were under no

liability to the plaintiffs. The defendants further alleged that the

plaintiffs suffered no damage by reason of any of the alleged

items of unseaworthiness.

The defendants said that the vessel was at all material times

fully classed, having undergone her last annual survey in

December, 1955, and her last special survey in June, 1953. At

no time before or at the beginning of the voyage were the

defendants, their servants or agents aware of the existence of

any of the alleged items nor had they any reason to suspect such

existence.The defendants contended that if (which was denied) the

vessel was not properly manned as alleged, that did not arise or

result from want of due diligence on the part of the defendants,

in that the engine-room crew were at all times qualified or

apparently qualified to undertake their duties, and, accordingly,

the defendants were under no liability to the plaintiffs.

The defendants admitted that the vessel called at the port of

Balboa for the purpose of bunkering on or about Feb. 11, 1956,

but contended that the insufficiency of fuel did not arise from

want of due diligence on the part of the defendants in that on

leaving Balboa the fuel oil on board appeared to be sound and

sufficient for the voyage, and had been obtained from reputable

suppliers; on leaving Vancouver the vessel had on board 323

tons of fuel oil; she took on a further 643 tons at San Pedro, anda further 368 tons at Balboa, and, accordingly, the defendants

were under no liability.

The defendants said that the cause of the breakdown and

towage was the bad quality of some or all of the fuel oil, which

the defendants had no means of ascertaining save by user or

attempted user. The defendants said, alternatively, that the fuel

oil became contaminated by reason of the failure of the

defendants' servants or agents properly or at all to sound and/or

empty Nos. 2, 7 and 8 double bottom tanks before hunkering at

San Pedro on Jan. 28, 1956,

and, in the further alternative, that the contamination was

caused by the failure of the engineers in the course of the

voyage to operate the vessel's pumps and cocks so as to keep

sea water out of the vessel's fuel tanks. Accordingly, thedefendants contended that on Art. IV (2) (a) and (q) of the

Hague Rules as incorporated in the bills of lading excused them

from responsibility for the breakdown and towage.

The defendants also contended that if the breakdown and

towage were due to any fault on their part they would rely on

Rule D of the York/Antwerp Rules, 1950.

By their reply, the plaintiffs in the first action said that if the

defendants' servants or agents failed properly or at all to sound

and/or empty Nos. 2, 7 and 8 double bottom tanks before

bunkering at San Pedro on Jan. 28, 1956, whereby the fuel oil

became contaminated, the Makedonia was unseaworthy and/or

not properly equipped or supplied on leaving San Pedro in that:

(a) The fuel oil contained in one or more of double bottom

tanks Nos. 2, 7 and 8 was mixed with such a quantity of saltwater as to be unburnable.

(b) There was an insufficient quantity of sound fuel oil to


Those plaintiffs further said that on the true construction of

Rule D of the York/Antwerp Rules, 1950, the defendants were

precluded by their failure to provide a seaworthy ship from

claiming any contribution in general average, and contended

that they were entitled to sue the defendants for the damage

caused by such failure.

According to the statement of claim of the plaintiffs in the

second action, under 191 bills of lading dated in Vancouver on

various dates in January, 1956, and signed by the master or

agent of the defendants' steamship Makedonia, there were

shipped in good order and condition on board the Makedonia,for carriage to ports in the United Kingdom, for reward to the

defendants, numerous consignments of timber and one

consignment of prime unbleached kraft.

Those plaintiffs said that it was the duty of the defendants as

carriers for reward and the defendants by the bills of lading

expressly contracted to deliver the goods at their respective

ports of discharge in the same good order and condition as they

were in when shipped.


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Those plaintiffs said, alternatively, that it was expressly

provided by Clause 1 of the conditions printed on the reverse of

all the bills of lading that the bills of lading should have effect

subject to the provisions of the Water Carriage of Goods Act,1936, of the Dominion of Canada, and that that Act should be

deemed to be incorporated therein.

After referring to Art. III (1) and Art. IV (1), those plaintiffs

said that Art. III (2) provided that the carrier should properly

and carefully load, handle, stow, carry, keep, care for and

discharge the goods carried.

Those plaintiffs said further that on the true construction of the

Rules, the defendants were bound to exercise due diligence to

make theMakedonia seaworthy and properly to man, equip and

supply her before and at the beginning of each bunkering stage

of the voyage, or, alternatively, that the defendants impliedly

warranted that before and at the beginning of each bunkering

stage they would exercise due diligence to make the Makedonia

seaworthy and properly to man, equip and supply her for thatstage.

Those plaintiffs alleged that, on leaving the ports of shipment,

theMakedonia was unseaworthy in respects (lettered "a" to "p")

similar to those (lettered "a" to "m") alleged by the plaintiffs in

the first action (see pp. 318 and 319 ante).

The plaintiffs in the second action alleged that by reason of

that unseaworthiness, on and after Feb. 17, 1956, the

Makedonia had difficulty in raising sufficient steam to proceed

and on Mar. 1, 1956, finally broke down and became disabled,

owing to lack of steam, in the Atlantic Ocean about 870 miles

from Ponta Delgada, which was the nearest port, and, by reason

of her list and the fact that she was tender, her situation in the

North Atlantic in winter was rendered even more perilous than

it would otherwise have been.Those plaintiffs said that, owing to the vessel's disablement, it

was necessary for her to accept salvage services. By reason of

the unseaworthiness due to her having reduced her cable, it was

not possible for theMakedonia to be towed by a sister ship, the

North Queen, which reached her on Mar. 3, 1956, with the

result that it was necessary to accept the services of the Agios

Georgios Vwhich reached theMakedonia on Mar. 5, 1956, and

proceeded to tow her to Ponta Delgada.

Those plaintiffs also said that it was necessary (a) in order to

raise steam in an attempt to transfer sufficient chain from the

port anchor to the starboard anchor to enable the North Queen

to take the Makedonia in tow, to jettison a quantity of timberfrom the latter vessel's cargo, and (b) in order to raise steam for

her steering and generator, to burn a quantity of her cargo.

Those plaintiffs alleged that, by reason of such jettison and

burning and in breach of their duty and contracts, the

defendants failed to deliver all the goods shipped, but delivered

a number of consignments short of various quantities of timber

whereby a number of the plaintiffs suffered loss and damage.

Also those plaintiffs' goods became liable for salvage charges

and costs whereby those plaintiffs suffered loss and damage.

Before the arrival of the Makedonia in London on or about

Mar. 21, 1956, the defendants demanded and refused to release

those plaintiffs' goods without general average deposits or

guarantees of payment of such contributions to general average

as might be found due in respect of their goods. Accordingly, inMarch, 1956, guarantees of such payment were given by or on

behalf of those plaintiffs in order to obtain the release of their

goods.

On or about Jan. 27, 1960, the defendants, by their agents,

Bennett & Co., requested payment by those plaintiffs of general

average contributions.

Those plaintiffs said that any general average expenditure

which might have been incurred was caused by the fault of the

defendants in providing a vessel which was unseaworthy in the

respects alleged in the statement of claim, in consequence of

which those plaintiffs were not liable to pay the contributions or

any part thereof, and further, that the fourth plaintiffs Les Fils

de Bechara Karam were entitled to repayment by the defendants

of the sum of 243 6s. 5d. paid by them on Jan. 28, 1960, astheir contribution without prejudice to the ultimate

determination of liability.

The plaintiffs in the second action claimed:

(1) Judgment against the defendants and their bail for the sums

due to shortage on discharge and loss on that account with

interest thereon at five per cent. per annum from the dates of

discharge.


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(2) Judgment against the defendants and their bail for the sums

paid on account of salvage award and costs, with interest

thereon at five per cent. per annum.

(3) A declaration that those plaintiffs were not liable tocontribute any sum in respect of general average and in the case

of the fourth plaintiffs' payment of the sum paid by way of

general average contribution, with interest thereon at five per

cent. per annum from Jan. 28, 1960.

(4) Cancellation of the guarantees given in March, 1956.

(5) A reference, if necessary, to the Admiralty Registrar

assisted by merchants.

In their defence in the second action, the defendants referred

to the Canadian Water Carriage of Goods Act, 1936, and

alleged that their obligation in relation to seaworthiness under

the Rules was to exercise due diligence before and at the

beginning of the voyage to render the vessel seaworthy, and for

this purpose the voyage on a true construction of the Rules in

each case began at the port of shipment named in the respectivebills of lading. Subject to the fulfilment of that obligation, the

defendants were by virtue of Art. IV (1) of the Rules under no

liability for loss or damage arising or resulting from

unseaworthiness.

The defendants contended that if (which was denied) the

vessel was unseaworthy in any of the respects there alleged, it

did not arise or result from want of due diligence on the part of

the defendants, their servants or agents to make the vessel

seaworthy, and, accordingly, the defendants were under no

liability to the plaintiffs; and further that those plaintiffs

suffered no damage by reason of any of the alleged items of

unseaworthiness.

The defendants repeated their defence in the first action (see p.

321 ante), and further contended that if the vessel wasunseaworthy in any of the respects alleged in the statement of

claim, it did not arise or result from want of due diligence on

the part of the defendants, their servants or agents to make the

vessel seaworthy, and, accordingly, the defendants were under

no liability to those plaintiffs, and, further, that those plaintiffs

suffered no damage by reason of any of the alleged items of

unseaworthiness.

In relation to those bills of lading which covered cargo carried

on deck, the defendants relied on Clause 6 printed on the

reverse of the bills of lading as exempting them from any

liability for any loss or damage to such cargo, howsoever

caused, and contended that they were under no liability in

respect of such deck cargo.By their counterclaim, the defendants contended that arising

out of or in connection with the breakdown and towage they

intentionally and reasonably made or incurred extraordinary

sacrifices or expenditures for the common safety for the

purpose of preserving from peril the vessel and her cargo, and

that, accordingly, they were entitled to claim general average

contributions from the respective plaintiffs as set out in an

average adjustment drawn up by Bennett & Co., dated Jan. 22,

1960.

The defendants counterclaimed:

(i) A declaration that they were entitled to recover general

average contribution from the plaintiffs to the extent of their

due proportions as set out in the adjustment of Jan. 22, 1960;

(ii) Interest.

By their reply and defence to counterclaim, the plaintiffs in the

second action alleged that if the defendants' servants or agents

failed properly or at all to sound and/or empty Nos. 2, 7 and 8

double bottom tanks before bunkering at San Pedro on Jan. 28,

1956, whereby the fuel oil became contaminated, the

Makedonia was unseaworthy and/or not properly equipped or

supplied on leaving San Pedro in that: (a) the fuel oil contained

in one or more of double bottom tanks Nos. 2, 7 and 8 was

mixed with such a quantity of salt water as to be unburnable;

and (b) there was an insufficient quantity of sound fuel oil to


Those plaintiffs said that on the true construction of the

York/Antwerp Rules, 1950, the defendants were precluded by

their failure to provide a seaworthy ship from claiming anycontribution in general average, and that those plaintiffs were

entitled to sue the defendants for the damage caused by such

failure.

Those plaintiffs said that no admission was made as to the

reasonableness, amount or purpose of any sacrifice or

expenditure made or incurred by the defendants, and denied that

the defendants were entitled to claim general average

contributions from the respective plaintiffs.

Those plaintiffs alleged that if the defendants were paid the

general average contributions, those plaintiffs would be


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entitled to recover an amount equivalent thereto as damages for

the defendants' breaches of contract whereby in order to avoid

circuity of action the defendants were not entitled to the

contributions.Mr. H. V. Brandon, Q.C., and Mr. J. F. Willmer (instructed by

Messrs. Clyde & Co.) appeared for the plaintiffs; Mr. R. A.

MacCrindle and Mr. M. J. Mustill (instructed by Messrs.

Holman, Fenwick & Willan) represented the defendants.

Mr. BRANDON, for the plaintiffs, said that the breakdown of

the Makedonia, an oil-fired steamship, formerly the Empire

Squire, was due to contamination of oil fuel, and lack of feed

water for her boilers.

As a result she had to take advantage of salvage assistance in

the form of towage to the Azores. An award of 44,000 against

ship and cargo was made by the Lloyd's appeal arbitrator.

In addition, general average sacrifices were made, and general

average expenditure was incurred because of the breakdown.

The general average sacrifices consisted of: (1) A jettison of

part of the forward deck cargo in order to trim the ship by the

stern in an effort to pump out the remains of oil fuel in the after

double bottom tank. (2) The burning of cargo, mostly deck

cargo, but some under deck, as fuel for the boilers so as to

provide steam for the auxiliaries.

The general average expenditure consisted mainly in expenses

at the port of refuge, Ponta Delgada. In consequence, the cargo-

owners had to pay their share of the salvage award, interest and

costs, and had claims made against them for general average

contribution in respect of which they had given guarantees.

COUNSEL said that the question for the decision of the Court

was whether the breakdown of the ship was caused by the

actionable fault of the defendants.

COUNSEL said that theMakedonia had trouble on her previous

voyage from Japan to Vancouver in ballast, when her propeller

became loose in the shaft and she had to be towed into

Vancouver by a salvage tug, arriving on Dec. 11, 1955. She was

put in dry dock, where various repairs were carried out,

including repairs to piping in the fuel tanks, and defective

pumps.

COUNSEL said that it was clear from the ship's documents that,

at San Pedro and Balboa, oil was introduced into No. 2 tank

when it already contained salt water ballast.

The vessel arrived at Balboa on Feb. 11 and sailed on Feb. 12with 851 tons of fuel oil and 200 tons of boiler feed water.

By Feb. 25, the boiler feed water was exhausted, due mainly to

loss of steam from the engine packing, which resulted in a

consumption of feed water of 20 tons a day. On Feb. 26, the

engineers reported that the evaporator output was insufficient,

and that they were using sea water for the boilers. Lack of

steam stopped the engines on Feb. 29. The engines stopped

finally on Mar. 1, and the vessel broke down finally in a

position lat. 31 39 N., long. 42 17 W., 870 miles from Ponta

Delgada.

The engineers reported that they could not raise enough steam

for the auxiliaries, and the master ordered the crew to cut up

deck cargo as fuel.

On Mar. 2, the Makedonia remained disabled and adrift. OnMar. 3, the North Queen, a sister ship, arrived and made a

towage connection which broke.

On Mar. 5, the turbo-electric tanker Agios Georgios Varrived

and offered towage on Lloyd's Standard Form of Salvage

Agreement, which was accepted. During the tow to Ponta

Delgada more cargo was cut up and burned. Some repairs were

carried out, and theMakedonia arrived eventually in London on

Mar. 21.

COUNSEL said that he put the plaintiffs' case in this way: 1.

The liability for salvage and the claims for general average

contribution, and the loss of cargo by jettison or burning were

caused by the breakdown; 2. The breakdown itself was caused

by lack of usable fuel oil and lack of feedwater; 3. Each of these

deficiencies was caused by the vessel's unseaworthiness.

Mr. BRANDON cited, among other authorities,E. Timm & Son,

Ltd. v. Northumbrian Shipping Company, Ltd., (1937) 58

Ll.L.Rep. 45, and said that if the doctrine of bunkering stages

did not apply to the present case, there must be enough bunkers

for the whole voyage. One could not split bunkers without also

splitting the need for due diligence at each port of call.

If by voyage, it was meant the whole voyage, it was necessary

to use due diligence to provide sufficient bunkers at


10/33



the original port to go the whole voyage. It was the owners'

duty to exercise reasonable foresight.

Prima facie "voyage" meant the journey from the loading port

to the discharging port. The shipowner could divide it intostages, but if he did, his obligations attached to successive

stages.

Mr. MACCRINDLE, for the defendants, handed in two

amendments, alleging that the cause of the breakdown was the

failure of the engineers to lubricate the engine properly, and

contending that the owners had exercised due diligence in the

selection of the engine-room crew.

Mr. BRANDON said that he would not resist the amendments,

subject to comment, and preserving his position on costs.

Mr. MACCRINDLE submitted that there were three questions

for decision: (1) Was the vessel unseaworthy? (2) If so, did the

unseaworthiness cause the loss-the towage to the Azores and

the expenses at the port of refuge? (3) If so, did the owners fail,

both before and at the beginning of the voyage, to exercise duediligence to make her seaworthy?

The defendants' case was that the answers to these questions

should be in the negative. In only the third question was the

burden of proof on the defendants, and that involved the

construction of a number of contracts contained in the bills of

lading.

These contracts contained certain clauses. Some of them set

out in extenso, and others incorporated by reference. Among

these latter were the Hague Rules, Art. IV (1), of which

contended COUNSEL, held the key to the legal issue.

Because of Art. IV (1), if he had exercised due diligence in

making the ship seaworthy before and at the beginning of the

voyage, he was not liable for unseaworthiness.

The alleged physical defects in the ship fell into three classes:

(1) Water or steam; (2) fuel; (3) stability and pumps.

The first and third classes did not, in COUNSEL'S submission,

cause the breakdown. The real cause was the contamination of

fuel due to the negligence of those on board.

It was the defendants' case that the ship was physically

seaworthy. If they were wrong on that point, they contended

that they had exercised due diligence by ordering the repairs

carried out at Vancouver.

On the question of unseaworthiness through the alleged

incompetence of the crew, COUNSEL argued that theMakedonia

was one of the simplest types of ship to operate. No special

knowledge was required, and there was no suggestion that theengine-room was undermanned, or that the engineers were

physically unfit for their duties.

The debacle on this voyage was caused by several acts of

negligence by one or more of the engineers.

In COUNSEL'S submission the question of competence had to

be approached in the same way as an action for physical

unseaworthiness. One had to find not only incompetence, but

that incompetence caused the casualty.

Continuing his argument on the exercise of due diligence in

the selection of crew, COUNSEL submitted that a shipowner's

position was more favourable under a Hague Rules contract

than under common law, and that he was not liable if ordinary

care had been taken to make the ship seaworthy.

COUNSEL said that if his Lordship were to form the view thatinadequate standards had been exercised, he would ask his

Lordship to say in terms what more could have been done, not

only for the guidance of the Makedonia's owner, but for all

other shipowners as well.

COUNSEL said that different considerations applied to deck

cargo to which the Hague Rules did not apply. The parties were

at liberty to contract in whatever terms they wished as to

obligations and exceptions.

Clause 6 of the bill of lading laid down that the goods were

carried at sole risk of the owner and that the carrier was not

liable for anything in relation to deck cargo, unless it amounted

to a breach of contract.

COUNSEL said that the argument against him was that while

Clause 6 was perfectly adequate in relation to claims for

physical damage to deck cargo-now abandoned- it was not

adequate to protect him from the claim that the cargo-owner

had suffered, or would suffer pecuniary damage if he had to pay

general average or salvage.

His answer was: (1) The clause on the true construction was

wide enough to cover that sort of damage; and (2) even if


11/33



it was only restricted to physical loss or damage, that was not

enough in the circumstances to defeat the counterclaim for

general average.

Mr. BRANDON said that his case rested on four mainpropositions:

(1) The plaintiffs' claims arose out of the breakdown of the

vessel which, he thought, was not disputed;

(2) The breakdown was caused by (a) lack of feed water,

which was disputed; and (b) lack of burnable fuel, which was

conceded, though there was disagreement as to whether that

was due to contamination at Balboa, or successive

contaminations after leaving Balboa.

(3) Both these deficiencies were caused by unseaworthiness,

which was wholly disputed.

(4) In relation to under-deck cargo claims, the defendants had

failed to prove that due diligence was exercised in respect of

seaworthiness, which was also wholly disputed.

This was a case, said COUNSEL, where a ship which should

have had plenty of feed water and bunkers to reach London

from Balboa without replenishment, broke down for want of

both before she got even half-way.

The material facts were, or ought to have been, within the

knowledge of the defendants and those employed by them, yet

apart from the chief engineer, whose evidence was unreliable,

not a single witness had been called from the ship to say what

did happen or did not happen. The burden of proof lay on the

defendants to show, if unseaworthiness in any respect was

proved, that they had exercised all normal and reasonable care

to prevent that unseaworthiness.

The principle that due diligence must be exercised applied,

COUNSEL submitted, not only to the physical condition of theship involving repairs and maintenance, but equally to the task

of manning the ship properly.

The main heads of unseaworthiness were: Improper manning

of the engine-room, water in No. 2 tank on leaving Balboa, and

leakages in the main engine packings.

COUNSEL submitted that the engineers were grossly inefficient,

and that not

enough time had been given to their selection. All the sources

of information available should have been used.

Of the engine repairs carried out at Vancouver, COUNSEL

submitted that if they were inadequate, then due diligence couldnot have been exercised.

Opening his submissions on law, Mr. BRANDON said that the

first question was the doctrine of stages in relation to the Hague

Rules. The true basis of the common-law doctrine of stages, he

submitted, was contained in three propositions.

1. The ship must be seaworthy at the commencement of the

voyage.

2. So far as bunkers were concerned, the requirements could

be complied with in two ways: (a) by having enough bunkers

for the whole voyage at the loading port; or (b) by having

enough bunkers at the loading port for the first stage, and taking

on enough further bunkers for each sucessive stage.

3. If the carrier chose to comply with the requirement in the

second way, the ship's initial seaworthiness was conditional on

sufficient bunkers being taken at subsequent bunkering ports.

If the condition was fulfilled, the ship was seaworthy at the

commencement of the voyage. If not fulfilled, the effect was

retrospective and the ship was not seaworthy at the

commencement of the voyage. For instance, a surveyor might

give a certificate of seaworthiness for the voyage subject to the

ship doing something at the next port.

If the condition was performed, then retrospectively the ship

was seaworthy right from the start. Conversely, if the condition

was not performed, the ship was not seaworthy. (The Vortigern,

[1899] P. 140.)

COUNSEL submitted that where words in the Hague Rules had

been the subject of previous decisions they should beinterpreted in the same way. Common law involved a concept

of conditional seaworthiness, and an implied warranty of

seaworthiness at the beginning of the voyage.

It was the plaintiffs' case that the ship did not have enough

bunkers at the loading port for the voyage and, that prima facie

the ship was unseaworthy. This could be rebutted by the

provision of


12/33


Adm. The "Makedonia" Hewson, J.

sufficient bunkers at successive stages. In the present case the

owners had failed to do this, by the mix-up of bunkers at

Balboa.

Mr. MacCrindle's submission that Clause 6 of the bill oflading was wide enough to cover pecuniary and physical loss or

damage made it essential to determine the true construction of

the clause.

COUNSEL put forward six possible heads of damage: Physical

loss of cargo by jettison; physical damage to cargo by oil or

water; salvage liability due to the need for towage; liability to

contribute to general average in respect of port of refuge

expenses; incurring of expenses in transhipment and on-

carrying cargo, due to the ship being so badly damaged as to

justify the carrier in abandoning the voyage; loss by delay, e.g.,

loss of market.

COUNSEL submitted that the clause covered only physical loss

or damage and pecuniary loss caused by delay. It was

significant in construing the clause, that the words "or delay"should have been added. If the previous words had been

sufficient to cover pecuniary loss, why were the words "or

delay" added?

The clause, as a whole, did not extend to pecuniary liability.

Therefore, it did not extend either to general average or to

matters of salvage.

Mr. MACCRINDLE said that it was true that that common-law

warranty attached at the commencement of the voyage, but the

effect of the doctrine of stages was to impose recurring

obligations.

There was no doctrine of conditional or retrospective

unseaworthiness. To suggest that the owners, who had done all

that the law required of them before leaving Vancouver, should

by subsequent events be deemed not to have done all that wasrequired of them was to impose on a commercial contract of

affreightment a doctrine of such subtlety that it would take

some understanding in Lincoln's Inn or the House of Lords

itself.

COUNSEL said that there were express words in the Hague

Rules which said that he was not liable for unseaworthiness at

any stage, if at the beginning of the voyage he exercised due

diligence.

Judgment was reserved.

Friday, Mar. 9, 1962

____________________

JUDGMENTMr. Justice HEWSON: In this judgment, I am dealing with

two actions which were consolidated, No. 1 action, Folio 64,

1957, No. 625, and the second action, Folio 110 of 1961, No.

1326.

In the first action, the plaintiffs are the owners of seven parcels

of timber under seven bills of lading; in the second action, the

plaintiffs are the owners of 191 parcels of timber under 191

bills of lading. All the cargo was shipped early in 1956 in the

Makedonia at Vancouver and other Western Canadian ports in

the vicinity of Vancouver, for carriage to United Kingdom

ports. All the cargo in the first action was carried under deck.

Of the cargo in the second action, some was carried under deck

and some was carried on deck.

TheMakedonia is a single screw steamship of just over 7000tons gross, fitted with triple expansion engines of 2500 i.h.p.

She was originally a coal burner and was converted to oil

burning in Naples, in 1949.

Briefly, the claims arise in the following circumstances. In the

course of the voyage from Western Canadian ports to the

United Kingdom, theMakedonia broke down in mid-Atlantic in

an approximate position lat. 31 39 N., long. 42 17 W., about

870 miles to the southward and westward of the Azores. It is

alleged that she broke down as a result of two causes, firstly,

contamination of oil fuel and, secondly, the lack of feed water,

that is fresh water, for the boilers. As a result of this breakdown

she was entirely immobilized and had to take salvage assistance

under Lloyd's Standard Form of Salvage Agreement to the

Azores, for which an award of 44,000 was made against theship and the cargo.

The plaintiff owners in these actions have had to pay their

respective shares of the award, interest and costs, and there are

also claims against the plaintiffs for general average

contributions, in respect of which guarantees have been given

by them except in the case of one plaintiff, who has paid his

contribution.

The general average sacrifices come under two heads: firstly,

the jettisoning of some forward deck cargo which was made to

trim the vessel by the stern in an effort to pump the remains of

fuel oil in No. 7 double


13/33



bottom tank; secondly, the burning of some of the timber both

from on deck and under deck as fuel to provide steam for the

auxiliaries during the towage to the Azores. There is also

general average expenditure, which is chiefly in respect of, ifnot entirely in respect of, the expenses of the port of refuge.

Now, the port of refuge was Ponta Delgada in the Azores. The

plaintiffs in No. 1 action claim to recover as damages from the

defendants their share of the salvage award, interest and costs

which they paid and also for a declaration that they are not

liable to make a general average contribution, and they ask for a

cancellation of the guarantees they have given. In the second

action, the plaintiffs make similar claims with the addition that

certain of them also claim for the loss of some of the cargo by

reason of jettisoning and burning. There were other small

claims by some of the plaintiffs for damage to cargo by oil

and/or water, but I am told that these have been disposed of by

settlement.

In the second action, there is a counterclaim by the defendantsfor a declaration that they are entitled to recover general

average contribution from the plaintiffs to the extent of their

contributions as set out in the adjustment. The adjustment is

dated Jan. 22, 1960. There are certain admissions in these

actions and they are as follows: that the plaintiffs have a good

title to sue; that the goods mentioned in the statement of claim

alleged to have been shipped in good order and condition were

so shipped; that salvage services were rendered to the ship and

cargo and that an award of 44,000 was made, and that the

plaintiffs have paid their respective shares; as to general

average, the adjustment is agreed. These documents show that

claims have been made for the plaintiffs' share.

All the plaintiffs' parcels were carried under similar bills of

lading and all parcels were shipped at Canadian West Coastports. Clause 1 in the bill of lading is the clause paramount

which, so far as these parcels are concerned, incorporates the

Water Carriage of Goods Act, 1936, of the Dominion of Canada

into the contracts of carriage, and the effect of this is, therefore,

that the Hague Rules apply to the under-deck cargo and do not

apply to the deck cargo. That is conceded. The deck cargo is

specially provided for by Clause 6 of the bill of lading, and I

will deal with that in due course.

Clause 18 of the bill of lading-when I say "bill of lading", I

mean all bills of lading - provides that general average should

be paid according to the York/Antwerp Rules of 1950, and

Clause 21 that, subject to Clause 1, the paramount clause, andClause 18, the bill of lading, no matter where issued, shall be

construed and governed by English law as if the vessel sailed

under the English flag.

Now, Sect. 3 of the Canadian Act of 1936 provides that there

shall not be implied in any contract for the carriage of goods by

water to which the rules apply, any absolute undertaking of the

carrier of the goods to provide a seaworthy ship. The rules

referred to are those contained in the schedule to the Act which,

with some slight differences which are immaterial to this case,

are the same as those contained in the schedule to the English

Carriage of Goods by Sea Act, 1924. Art. III (1) of the schedule

provides that the carrier shall be bound before and at the

beginning of the voyage to exercise due diligence: among other

things, to make the ship seaworthy and properly man, equip and

supply the ship. Art. IV (1) provides that neither the carrier nor

the ship shall be liable for loss or damage arising or resulting

from unseaworthiness unless caused by want of due diligence

on the part of the carrier to make the ship seaworthy, and secure

that the ship is properly manned, equipped, supplied and so on,

in accordance with the provisions of Art. III (1). Art. IV (1) also

provides that whenever loss or damage has resulted from

unseaworthiness, the burden of proving the exercise of due

diligence shall be on the carrier or other person claiming

exemption under this section. In Art. IV (2): neither the carrier

nor the ship shall be responsible for loss or damage arising or

resulting from many things, including the act, neglect or default

of the master or others in the navigation or management of the

ship.

Now, it is beyond dispute that, on Mar. 1, 1956, when in the

North Atlantic in the position to which I have already referred,

the Makedonia was unable to continue her voyage under her

own power and had to take salvage assistance. She was towed

to Ponta Delgada and the liability for salvage, general average

contribution, and loss of cargo by jettisoning and/or burning

were caused by, and stemmed from, this breakdown.


14/33



Before proceeding to the consideration of whether the

breakdown was caused by actionable fault on the part of the

defendant shipowners, I propose to decide firstly what "voyage"

under Art. III (1) means. There has been much argument aboutit. Mr. Brandon submitted that the Hague Rules substituted, for

the absolute warranty of seaworthiness at each bunkering stage

at common law, a qualified obligation upon the owners to

exercise due diligence to make her seaworthy at each bunkering

port. If she was unseaworthy on leaving any bunkering port

through defective bunkers being shipped there or through

loading good fuel oil into tanks already containing sea water,

thereby contaminating the fuel and making it unburnable, the

owners are responsible for the lack of due diligence on the part

of the engineers at the beginning of that stage and they cannot,

therefore, rely on the exceptions in Art. IV (2).

There is no decision on what is meant or implied by "voyage"

in Art. III (1) of the Hague Rules. I have already referred to the

common law and I shall make some further reference to it. At

common law, the voyage was, where necessary to the

shipowner, divided into a series of stages, but that was in

relation to the warranty of seaworthiness; it did not alter the

definition of "voyage". There may have been several stages, but

there was only one voyage. Mr. Brandon argued that, at

common law, if insufficient bunkers were taken at any

intermediate bunkering port the effect was retrospective and the

ship was not seaworthy at the beginning of the voyage.

In support of this, he referred me to The Vortigern, [1899] P.

140. At p. 155 of that report, Lord Justice A. L. Smith, in effect,

said that if the shipowner, from the necessity of the case,

divided the voyage into stages to bunker, he did not by so doing

abandon the warranty of seaworthiness which attached at the

commencement of the voyage and therefore the existing

warranty (which I, myself, shall call the original warranty) was

extended to the beginning of each stage. I see no essential

difference between what Lord Justice A. L. Smith said in The

Vortigern, sup., and what Lord Wright said in Northumbrian

Shipping Company, Ltd. v. E. Timm & Son, Ltd., [1939] A.C.

397; (1939) 64 Ll.L.Rep. 33. Lord Wright said (ibid., at pp. 404

and 38 of the respective reports):

. . . Thus the warranty of seaworthiness is sub-divided in

respect of bunkers.

Instead of a single obligation to make the vessel seaworthy in

this respect, which must be satisfied once for all at the

commencement of the voyage, there is substituted a recurring

obligation at each bunkering port . . .In theNorthumbrian Shipping Company case, sup., Sect. 6 of

the earlier Canadian Water Carriage of Goods Act-the Act of

1910-applied. This section provided that if the shipowner

exercised due diligence to make the ship in all respects

seaworthy and properly manned, and so on, he should not be

responsible for any loss resulting from faults or errors in the

navigation of the ship. The House of Lords held that that

qualified obligation referred to by Mr. Brandon applied to the

owners at each bunkering stage, that is, the owners to exercise

due diligence regarding bunkers at each stage.

Has the different wording of the Hague Rules or the Rules of

the later Canadian Act of 1936 altered the position? Mr.

Brandon argued that the importation of the words "before and at

the beginning of the voyage" has added nothing and that thewords are simply declaratory of the law as it was at the time or

up to the time the Rules were formulated. In my view, the

position in this country before the 1924 Act was clear without

any further words. Mr. Brandon argued that "seaworthy at the

beginning of the voyage" had already been defined by a long

line of cases and therefore the qualified obligation to use due

diligence of seaworthiness at each stage should be read into the

words.

Now I recall that the Hague Rules were the outcome of

international conference, and that the words in an English

statute should be given their plain meaning subject to any

particular meaning which our Courts have, in former times

imputed to them, as was done by the House of Lords in Gosse

Millerd, Ltd. v. Canadian Government Merchant Marine, Ltd.,[1929] A.C. 223; (1928) 32 Ll.L.Rep. 91-in respect of the

words, "management of the ship". That, as I see it, is construing

the meaning of a phrase or a set of words; it is not the

application of a doctrine. I see no obligation to read into the

word "voyage" a doctrine of stages, but a necessity to define the

word itself. The word does not appear in the earlier Canadian

Act of 1910. "Voyage" in this context means what it has always

meant: the contractual voyage from the port of loading to the

port of discharge as declared


15/33



in the appropriate bill of lading. The rule says "voyage" without

any qualification such as "any declared stage thereof". In my

view, the obligation on the shipowner was to exercise due

diligence before and at the beginning of sailing from theloading port to have the vessel adequately bunkered for the first

stage to San Pedro and to arrange for adequate bunkers of a

proper kind at San Pedro and other selected intermediate ports

on the voyage so that the contractual voyage might be

performed. Provided he did that, in my view, he fulfilled his

obligation in that respect.

I find that the shipowner exercised due diligence to ensure

sufficient and proper bunkers at each stage of the voyage. Had

some of the fuel not become contaminated by sea water and

become unburnable I am satisfied that the Makedonia would

have been able to complete her contractual voyage. On this

voyage not only did she exhaust her usable fuel oil on Mar. 1,

1956, but on Feb. 25, 1956, she exhausted her supply of fresh

water. Mr. Brandon submitted that in considering bunkering,

fresh water should also be taken into account: it is no good

putting a fire under an empty kettle. As a general proposition I

agree. The same foresight and the same diligence should be

exercised by owners with regard to water for boilers as with

fuel for the furnaces. In considering reasonable provision of

water for boilers regard must be had to the type of boilers and

their daily consumption; they must have regard to such matters

as to whether there is a condenser, and its condition, and an

evaporator and its condition.

In this ship there were fitted three Scotch boilers which were

capable in an emergency of running on a salt-water feed, and I

find that the daily average consumption of fresh water for all

purposes in theMakedonia was about eight tons. When she left

her last intermediate port, at Balboa, she had taken in there 200

tons of fresh water. I have no reason to believe that she was

completely out of fresh water on her arrival at Balboa, and I

find, on the probabilities, that she left Balboa with her capacity

of fresh water, which was about 250 tons which, as far as could

reasonably have been foreseen, was ample for the voyage to

London.

Now, I have had considerable evidence from surveyors and

those qualified to speak on these matters as to the use of salt

water in Scotch boilers. Mr. Rolland, who was called by the

plaintiffs on one point only,

which had nothing to do with this question, informed me that 30

years ago Scotch boilers were fairly common and that many

companies ran them on salt water only. Mr. Leach, who was

one of the experts called on behalf of the defendants, and whowas fully examined and cross-examined on this matter, told me

that in an emergency he had himself used salt water in the

boilers at sea, though he was far from recommending its general

use. He said that in ordinary circumstances he would not expect

a ship of the type of the Makedonia-she is an Empire type-to

use salt water in the boilers; nevertheless, she could voyage

safely on it for about six weeks, provided there was a normal

consumption of water in the boilers. If, because of an abnormal

leakage of steam or loss of water, the consumption was

increased from eight tons to about 20 tons per day then scaling

would occur fairly rapidly and her safe voyaging period would

be considerably reduced.

With the rapid scaling the fuel consumption would increase,

and increase from the normal average of 24 tons a day in this

ship to a maximum of about 30 tons per day. As the

consumption of fuel rose so would there be a loss of speed in

the ship owing to the reduced generation of steam because of

the scaling on the tubing. He said that such usage of salt water

in the boilers would call for care, namely, to see that the density

in the boilers did not exceed what he called four over 32. This,

he said, could be achieved by blowing down two or three or

four times a day. The British Standards Institution

recommendation was to blow down at four over 32. That

recommendation advised that the density must not exceed four

over 32 because at higher densities you might get crystalization

of common salt and of other salts which dissolve in water.

While using salt water in the boilers of the Makedonia from

Feb. 26 until Mar. 9, which is two days before her arrival at

Ponta Delgada, the density never exceeded 314 over 32. Thesalinity did not rise as high as four over 32, so it appears as if

the engineers blew down as often as necessary over the period

of about 13 days. It is quite true that during those 13 days the

vessel was not steaming. She was either adrift as a hulk in the

Atlantic or being towed towards the Azores, and in such

circumstances the consumption of water was nothing like as

high as it would have been if she had been


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steaming. Nevertheless, the engineers seem to have known what

to do in such circumstances.

Mr. Leach's view, which I accept, was that if the vessel was

half-way across the Atlantic and ran out of fresh water withvery little fuel left, her best course was to use sea water and

conserve her fuel rather than to expend it on the evaporator. I

have little doubt, after considering all the evidence I have heard

on the use of salt water in the circumstances I have had to

consider, that theMakedonia could have completed her voyage

to the United Kingdom using salt water provided she had had

sufficient burnable fuel on board.

Now, in the course of this somewhat lengthy hearing I have

considered what course the vessel was on after leaving the

Windward Passage. She was apparently on a course to pass

fairly close to the Azores. In such circumstances, it would have

been more prudent for her to call there and replenish her fresh

water. Even if there had been no fuel trouble she might well

have done so; she could certainly have reached the Azores onsalt water if only she had had sufficient burnable fuel. In those

circumstances there would have been no need for towage

assistance.

It is perfectly true that the master of the vessel entered in his

log-book, or someone entered in the deck log-book, on Feb. 28,

1956, that is, three days after running out of fresh water and two

days before the final expenditure of burnable fuel oil:

For reasons of safety of the vessel, the cargo and those on

board I am heading to Azores in view of the condition of the

boilers and of the fuel oil.

But, on Mar. 11, which was the day of the ship's arrival at Ponta

Delgada, there is entered in the log-book, which is signed by the

master:

The cause of the Makedonia towage and the arrival at thisport is the quantity of 369 tons of fuel oil taken at Balboa and

the impotence [sic] of the competent persons to know in time

that the fuel oil could not burn, so that vessel may have

proceeded by her own power.

I think that for "impotence" one should read "inability".

Two days after he had run out of fresh water he sent a cable to

his owners in London which I shall read:

. . . HAVE HEAVY WEATHER AND SERIOUS TROUBLESWITH FUEL AND FEED WATER STOP TANK THREE

APPROXIMATE QUANTITY200 TONS MIXED WITH SEAWATER SUSPECT FROM PIPE LEAKING TANK ONE STOP

ONLY CLEAN FUEL FOR CONSUMPTION150 TONS TANKSEVEN STOP SUFFICIENT QUANTITY FUEL MIXED WITH

BALLAST AFTER TRANSFER PUMP HAVE BEEN UNABLE

DRAINING MORE FUEL AND FORCED FILLING THESE

TANKS WITH BALLAST FOR VESSELS STABILITY STOP . . .

In particular, I underline the next and final sentence:

. . . FEED WATER CONSUMPTION OWING STEAM WASTING

FROM MAIN ENGINE PACKINGS OVER 20 TONS DAILY STOPSUGGEST IMPERATIVE PROCEED AZORES FOR FUEL AND

FRESH WATER PLEASE INSTRUCT.

I have no doubt that there was an abnormal consumption of

fresh water after leaving Balboa; the consumption rose to about

20 tons per day and the evidence of that is in the wireless

message I have just read. The question I have to answer is not

whether she might have called at the Azores for fresh water, butwhether the lack of it caused or materially contributed to the

towage, and I find that it did not for the reasons I have already

given.

Now, during the course of the hearing, many matters were

investigated, and properly so, and I should make some mention

of them before I pass on to the matters which, in my view,

really are important. Among the matters investigated were the

state of the condenser, the evaporator and the heating coils.

They were commented upon and their condition was thoroughly

investigated by the plaintiffs.

As to the leakage in the condenser, Mr. Foster, the surveyor

who was called by the plaintiffs, agreed that any leakage from

the condenser in this case could be ignored. As to the

evaporator I have no convincing evidence that it was

unserviceable, and the heating coils I find are immaterial in this

case.

The condition of the various pumps in the ship was properly

investigated and examined. As the case proceeded, the number

of pumps that really called for comment was gradually reduced,

and I was left with three; the general service pump, which at

some later stage of the case I was told was completely

disconnected from the ballast and fuel lines, was not material.


17/33



The ballast pump, which was overhauled at Vancouver, had a

pretty thorough overhaul. Three months later it required

attention on the River Tyne, but I have no reason to find it was

not functioning on the voyage and in any event, if it were not, itis not really material to this case so long as the transfer pump

was working properly. I find that the transfer pump worked

satisfactorily throughout the whole of the material time.

A considerable amount of time has been spent on the fact that

there was an excessive leakage of steam between Balboa and

the final breakdown. In fact, the abnormal consumption of fresh

water continued, though at a rather reduced rate (15 tons a day),

even after leaving Ponta Delgada. This was, among other

things, caused by the scoring of the I.P. valve rod and the

insufficiency of the packing in it and, as I find, in the piston rod

packings. These packings were opened up at Vancouver before

the ship sailed on her contractual voyage. The main engine H.P.

and I.P. piston rod packings and the H.P., I.P. and L.P. valve

packings were found to be in a most deteriorated condition-I

quote from the report. Something was done about it, but what

was done is not altogether clear. The chief engineer reported the

condition as bad on arrival at Vancouver after crossing the

Pacific, but he never concerned himself about the renewal of

packings once he had reported it. He left it to the repairers-he

told me so. This may have some bearing upon another aspect of

this case which I shall have to consider later. I conclude that

there was a certain amount of cobbling of these packings at

Vancouver which was satisfactory enough for a short while, but

that during the voyage such repairing as was done at Vancouver

became less effective, causing some leakage in several packings

in varying degrees.

But even so, this does not, in my view, account for all the

abnormal consumption of fresh water. It is highly probable that

after leaving Balboa and before the breakdown in the Atlantic,

and also after the departure of the Makedonia from Ponta

Delgada on Mar. 14, some mistakes were made in the pumping

of the fresh water, some of which went overboard. In my view,

it was the lack of usable fuel oil which was the immediate cause

of the breakdown.

How did this come about? I must go briefly into the history of

the voyage. On Jan. 21, 1956, theMakedonia left

Vancouver for the United Kingdom ports, laden with 8738 tons,

chiefly of timber, and general cargo. She then had a draught of

about 26 ft. 8 in. forward and 26 ft. 10 in. aft. She left with the

declared intention of bunkering at San Pedro and Colon, but infact that second bunkering port was changed and she bunkered

at Balboa. She had 123 tons of fuel oil in No. 1, which is an

undivided tank. She had about 140 tons in No. 3, which is a

divided tank, and about 60 tons in the settling tank. Nos. 2, 7

and possibly 8 were ballasted. No. 6 tank, which I think has

been referred to sometimes in this case (not by Counsel) as No.

4, contained fresh water.

The voyage to San Pedro, a distance of about 1200 miles, was

uneventful, and when she arrived there on Jan. 28, 1956, she

had used oil from No. 3; the oil in No. 1 had not been touched-

when I say No. 3 I mean No. 3 and settling tanks. At San Pedro

she took on board 643 tons of fuel oil and she left San Pedro on

the next day, Jan. 29. It was disposed as follows: No. 1 still with

123 tons of Vancouver oil; No. 2 with about 200 tons of fuel

oil. The capacity of that tank is not less than 248 tons.

According to a report made by Mr. Eleftheriou, who was one of

the engineer superintendents sent out by the defendants to

investigate matters in the Makedonia at Ponta Delgada, it was

reported to him that it was impossible to pump out the

remaining water ballast from No. 2 at San Pedro, so there was

already some indeterminate amount of sea water in that tank

when she left with fuel in it on Jan. 29. I do not think it was a

large amount. In No. 3, there was also 200 tons, and the

capacity of that tank is not less than 223 tons. In No. 7, there

was 180 tons-again short of capacity; in No. 8, 60 tons, almost

full; there was also some in the settling tank.

Upon leaving San Pedro, this vessel had a 5 deg. list to

starboard, and, during the passage to Balboa, the consumption

of fuel and water was normal. Small lists are recorded on some

days during the passage to Balboa. On Feb. 6, it is recorded that

instructions were given for No. 2 tank to be filled for the

stability of the vessel. Again I must refer, as I was so often

during the hearing, to Mr. Eleftheriou's report, and he reports

that it was claimed on one day, which was not specified, by the

engine-room crew that the fuel oil in No. 2 could not be

pumped out completely and the


18/33



master ordered this to be pressed up due to the vessel's list of 13

deg. The log-books, to which I shall have to make further

reference in this case, were not well kept and at times I suspect

that they did not record all that occurred in this ship. I find itwas on this day, namely, Feb. 6, 1956, that, because of the list,

a considerable amount of slack oil could not be pumped out and

the tank was pressed up with sea water. After this, there is no

reference in the log-books to a list for the remainder of the

passage to Balboa.

On Feb. 11, 1956, she arrived at Balboa to bunker and, on this

day, according to the fair log, when at anchor off Balboa,

instructions were given to pump out the ballast in No. 2 and No.

4 and have them filled with oil. Now, No. 4 is not intended for

oil; it is not fitted with heating coils and it is purely a ballast

tank, so I am uncertain what is meant by No. 4. I am told it

appears as No. 4 in the original, but it is just one more mystery

in a case where many of the facts are obscure. The account in

the log-book for Feb. 11 continues: when the pumping of No. 2

was completed she took a list of 10 deg. to starboard. I find that

on this day, No. 2 was not completely pumped out, and I shall

deal with this later. On the passage from San Pedro to Balboa,

no oil had been worked from No. 1, but it had been worked

from Nos. 2, 3, 7 and 8, all of which were slack on arrival at

Balboa. It is little wonder, therefore, that the ship listed first one

way and then the other on her passage. It is agreed by the

witnesses called in this case that the proper way to work fuel

tanks in a timber ship, which is prone to be tender, is to use the

bunkers from one tank at a time to avoid slack tanks. As soon as

one is exhausted it should be ballasted while they begin to draw

fuel from the next tank. Mr. Eleftheriou said in the witness-box

that he would expect competent engineers to see to the proper

use of these tanks. It is quite obvious to me that these tanks

were worked in the worst possible way.

When the Makedonia arrived in Balboa, as I find, with about

60 tons of mixed water and fuel in No. 2, oil was taken, and, on

Feb. 12, she left with ample oil for the last stage of her voyage.

She left with about 864 tons: 123 tons in No. 1, the oil which

had originally been put in at Vancouver, and 203 tons in No. 2.

Mr. Eleftheriou dealt with the bunker situation in his report to

which I have already referred and when questioned about it he

agreed that the remainder in the tank, namely, some 32 to some

37 tons, was ballast water. There were 215 tons in No. 3, about

200 in No. 7 and 60 tons in No. 8, and also fuel oil in the

settling tanks.The situation on leaving Balboa was as follows: that the oil

run into No. 1 at Vancouver was still untouched; that the oil in

Nos. 2, 3, 7 and 8 contained a mixture of San Pedro and Balboa

oil; No. 2 of course also contained sea water.

After passing through the Panama Canal course was set across

the Caribbean Sea for the Mona Passage. She left Colon on Feb.

13, 1956, and encountered heavy weather during the next few

days. There were high head seas, sometimes described as

mountainous, and strong head winds. The result was that on

Feb. 16, the master gave up the attempt to make for the Mona

Passage and decided to make for the Windward Passage,

apparently to bring the wind and sea from ahead to broad on his

starboard side to assist him in making better headway. I have,

after considering the evidence in the log-books and afterhearing the evidence of the surveyors, come to the conclusion

that, by Feb. 17, oil and water in No. 2 became emulsified and

that thereafter those on board the Makedonia were unable to

obtain burnable oil from this tank.

The record of the use of oil from the double bottom tanks is

incomplete. As I have already said, no proper records were

kept. This, in my view, was a grave reflection on the engineers.

There were no systematic soundings of the fresh water or fuel

tanks, and little confidence can be placed in such records as

were kept, and little confidence can really be placed in such

messages as were sent. The experts, with such facts as are

available, have been unable to agree upon the order in which

these tanks were worked. Mr. Eleftheriou, who investigated the

matter, as I have said, on arrival at Ponta Delgada, said in hisreport that during the passage from Balboa to the Azores there

were many manoeuvres of the tanks; the drawing and filling of

different tanks which he was unable to ascertain. The chief

engineer, who gave evidence in this case, could remember very

little that was helpful.

In the course of that last stage of the voyage, oil was used

from No. 1 and apparently gave full satisfaction; some was used

from No. 8, some from No. 3 and some


19/33



from No. 7. It may well be, too, that before the emulsification

was established, oil from No. 2 was also burned.

At some stage during that part of the voyage, while ballasting

No. 1 to increase the stability of the vessel, probably on Feb.22, when the vessel listed 13 deg. to port, the valves of Nos. 2

and 3 tanks were opened and sea water was run or taken into

them as well as into No. 1. It is suggested on the strength of a

message sent on Mar. 1, that No. 7 port valve was also open.

This message reads:

. . . SEVEN PORT NO GOOD THREE PORT NO GOOD NOW

TRY THREE STARBOARD . . .

Previous cables to which I have been referred indicated that oil

had been worked at some stage from No. 7- that is a message

which was sent on Feb. 27, the message which I have already

read, in which it says that "only clean fuel of 150 tons" was in

No. 7. The valve to No. 7 port may well have been open and, as

time went on and as oil was used from it, they were unable any

further to cope with the water in No. 7 port.I h

the makedonia

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