Two ships carrying coal to Birkenhead suffered explosions. The parties disputed the respective roles of the time charterer, the shipper, as to responsibility for an indemnity on damages.
Held: The shipper was a named party to and liable on the contract. That was unaffected by the contractual position of the charterers.
Mustill J said: ‘There still remains the problem of identifying the boundary between those risks which the shipowner contracts to bear and those which he does not. One possibility is to draw the line by reference to the proper method of carriage. According to this view, a shipowner who consents to carry goods of a particular description contracts to perform the carriage in a manner appropriate to goods of that description, and thereby assumes all risks of accidents attributable to a failure to carry in that manner.
This is an attractive proposition, for it neatly solves the question of degree to which I have referred, and enables attention to be concentrated on the means adopted to carry the goods. If the carrier proves that he has used the appropriate means, the claim succeeds, without his having to engage in the often difficult tasks of establishing the precise character of the goods, and the precise respects and degree in which they deviated from the norm. Conversely, if his performance has fallen short of what is appropriate, in a manner which is causative of the loss, his claim must fail. This approach also has the theoretical merit of keeping attention focused on the carriage of the goods, which is the subject-matter of the contract from which the liability of both parties mainly, if not exclusively, arises.
This approach will be sufficient to deal with most problems relating to dangerous cargoes, for in respect of the great majority of goods, the normal precautions will suffice to eliminate the risk of carrying normal goods of the description stated in the contract. Leaving outside casualties from wholly extraneous causes, one can say that proper carriage and dangerous nature are opposite sides of the same coin.
There are, however, cases to which this simple analysis cannot be applied: i.e. those where the nature of the goods is such that even a strict compliance with the accepted methods of carriage will not suffice to eliminate the possibility of an accident. Whether consciously or not, seafarers and those who advise them have chosen to adopt methods of carriage which involve an element of risk. No doubt the risk could be eliminated, if those concerned were to provide complex equipment, and enforce rigorous standards of performance. But for practical reasons, they do not. The existence of this gap between acceptable carriage and safe carriage means that there may be cases where an accident is due, neither to the unusual cargo, nor to any short-comings in the carrier, but to simple bad luck.
Who is to bear the risk of accidents falling into this category? In my judgment, the risk must fall on the carrier. By contracting to carry goods of a specified description, he assents to the presence on his ship of goods possessing the attributes of the goods so described; and in the case under discussion, those attributes include the capacity to create dangers which the accepted methods are not always sufficient to overcome.’
Judges:
Mustill J
Citations:
[1990] 1 Lloyds Rep 277
Jurisdiction:
England and Wales
Cited by:
Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 20 May 2022; Ref: scu.462942
