Owners of S.S. "Knutsford" v. E. Tillmans & Co. [1908] UKHL 691
(Before the Lord Chancellor (Loreburn) , Lords Macnagliten , James of Hereford , and Dunedin .)46 SLR 691Owners of S.S. “Knutsford” v. E. Tillmans & Company.( On Appeal from the Court of Appeal in England .)
Subject_ Ship — Bill of Lading — Exceptions — Error in Judgment — Inaccessible on Account of Ice — Deemed by the Master Unsafe — Construction — Ejusdem generis. Facts:In the construction of exceptions in a bill of lading, held(1) that “error of judgment in navigating the ship or otherwise” does not cover the master's erroneous view of the ship's contractual duties;(2) that “inaccessible on account of ice” means inaccessible without inordinate delay, not merely three days;(3) that “unsafe in consequence of war disturbance or any other cause” does not include danger by perils of the sea.The plaintiffs (respondents) were the holders and indorsees of bills of lading in respect of goods carried on the s.s. “Knutsford” belonging to the appellants. They asked for damages for breach of contract in failure to carry the goods to Vladivostock. The bills of lading contained the following exceptions—“(2) … error in judgment , negligence, or default of … master … whether in navigating the ship or otherwise …; (4) should a port be inaccessible on account of ice,… inaccessible on account of ice,… or should entry and discharge at a port be deemed by the master unsafe in consequence of war, disturbance, or any other cause, it shall be competent for the masters to discharge goods intended for such port on the ice or at some other safe port or place at the risk and expense of the shippers, consignees, or owners of the goods.…” The appellants relied upon the portions italicised.The master of the “Knutsford” tried for three days to enter Vladivostock, but at that time it was impossible because of ice. He considered it unsafe to persist in the attempt owing to the ice and severe weather. He therefore left and discharged the goods at Nagasaki. The day after leaving the approach to Vladivostock the ice dispersed and entry became easy.Judgment in favour of the plaintiffs was pronounced by Channell, J. , and affirmed by the Court of Appeal ( Vaughan Williams , Farwell , and Kennedy, L. JJ. ). The defendants appealed.At the conclusion of the arguments—
Lord Chancellor (Loreburn) —I am clearly of opinion that this judgment ought to be affirmed. What took place was this. A vessel went from Middles borough to Japan to deliver most of her cargo, and then she was to go forward to Vladivostock. When she arrived within forty miles of VladivostockPage: 692 ↓
Lord Macnaghten —I agree with my noble and learned friend on the Woolsack on all the three points. One of them I think ought not to have been raised, and about that I will not say anything. With regard to the other two, after the very full and able arguments which we have had, I think that the judgments of Channell, J., and the Court of Appeal are quite right. I do not think that the port of Vladivostock was inaccessible within the meaning of the documents as a matter of fact, although the captain could not make his way there through the ice for three days. I do not think that he was justified in giving up the attempt after so short a trial considering that he had plenty of coal on board, and I do not think that, having regard to the fact that the whole of the freight having been paid in advance, he was justified in landing the goods at Nagasaki. While the goods were still on board he heard that the port of Vladivostock was accessible, and I think that he was bound to prosecute his voyage to the destination mentioned in the bills of lading. As regards the last point, I think that the rule of ejusdem generis applies as laid down in Thames and Mersey Marine Insurance Company v. Hamilton , 12 App. Cas. 484, and I prefer to take the settled rule on a point of that sort from a case which did deal with bills of lading and shipping documents rather than from cases that dealt with real property and settlements. On the whole I think that the appeal ought to be dismissed.Lord James of Hereford —The main question in this case is entirely, I think, one of fact, and I concur in the judgment which has just been delivered by my noble and learned friend Lord Macnaghten on that point. It seems to me that the master when he gave up the attempt to enter Vladivostock and went to Japan and there delivered his cargo, was acting in the interests of the shipowners so as to get rid of the burden of that cargo, and not in the interests of the charterers. He did not wait the time which a person acting in the interests of the charterers would have waited near the mouth of the river to see whether the ice did or did not pass away. If he had done so for a short time, or a reasonable time, none of this litigation would have arisen. As I have said, for the reasons given by my noble and learned friend, I concur in the judgment proposed.Lord Dunedin —The appellants were bound by at least three of the bills of lading to deliver this cargo at Vladivostock. Admittedly they did not do so, but delivered it at Nagasaki. They must therefore be liable in damages for the failure, unless they can show that they are excused in respect of any of the exceptions in the bills. Their principal defence was based on art. 4, the terms of which I need not again read to your Lordships. They plead the protection of both members of the clause. As to the first, Have they shown that de facto Vladivostock was inaccessible on account of ice? It is obvious that inaccessibility must be judged of reasonably. Here the practical inaccessibility lasted but three days, and though the captain may have been right, in view of the danger of his anchorage under the lee of Askold Island,Page: 693 ↓
Judgment appealed from affirmed.Counsel for Plaintiffs and Respondents— J. A. Hamilton, K.C.— A. Adair Roche. Agents— Botterell & Roche, Solicitors.Counsel for Defendants and Appellants— J. R. Atkin, K.C.— Lewis Noad. Agents— W. A. Crump & Son, Solicitors.