Liverpool (Owners) v Ousel (Owners), (The Liverpool No 2): CA 1963

The Ousel and the Liverpool collided in the Port at Liverpool and the Ousel sank. The owners of the Liverpool admitted liability. The Mersey Docks and Harbour Board took the wreck under statutory powers and claimed the expenses of clearing the wreck against the owners of both vessels. The claim against the owners of the Ousel was statutory, and the claim against the owners of the Liverpool arose from their liability for the collision. The claim was worth about pounds 60,000 (net of recoveries from the sale of salvaged items). As against the owners of the Ousel the Board’s claim was limited to about pounds 10,000 by the limitation of liability provisions available to those owners under the Merchant Shipping Acts. As against the owners of the Liverpool, however, the prospect of recovery was much larger, for her limitation fund was expected to pay out about 30% (6 shillings in the pounds ), ie closer to pounds 20,000. It was perhaps for this reason, but also perhaps because the collision had been the fault of the Liverpool not of the Ousel, that the Board had declined the tender by the owners of the Ousel of the pounds 10,000, which they had deposited with stakeholders.
Held: Credit did not have to be given.
Lord Merriman P. said it was common ground that the classic statement about mitigation of loss in British Westinghouse ‘applies equally, mutatis mutandis, to tort’.
Harman LJ said: ‘Let it be conceded that if the board had recovered the pounds 10,000 from the Ousel under its statutory power that would have been satisfaction pro tanto of the damages; still the fact is that the board has not recovered this sum, and, in our judgment, there is no duty upon it to do so . . even if the board had obtained judgment against the Ousel there would have been no duty upon it to proceed to execution in alleviation of the Liverpool, which is a tortfeasor . . this case, in our judgment, has nothing to do with the duty to mitigate damages. It concerns the board’s legal rights, and no duty rests on it at the demand of a tortfeasor to satisfy part of the damages by resorting to another tortfeasor; still less by resorting to an innocent party made liable merely by statute.’
Lord Merriman P, Harman LJ
[1963] P 64
England and Wales
Cited by:
CitedBPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .

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Updated: 12 February 2021; Ref: scu.640551