In re Polemis & Furness, Withy & Co.

By a charterparty, dated February 21, 1917, Messrs. Polemis and Boyazides, the owners of the Greek steamship Thrasyvoulos (hereinafter called the owners), chartered the steamship to Furness, Withy & Co., Ld. (hereinafter called the charterers), for the period of the duration of the war and at charterers' option up to six months afterwards from the day she was placed at the charterers' disposal ready to load in the port of Cardiff, she being then tight, staunch, strong and every way fitted for ordinary cargo service and with full complement of officers, seamen, engineers, and firemen duly shipped for a vessel of her tonnage; to be employed in such lawful trades between any safe ports as charterers might direct with certain exceptions not material to this case. By clause 3, the owners were to provide and pay for all the provisions and wages of the captain, officers, engineers, firemen, and crew, to pay for the insurance of the vessel, war risks excepted, and also for all the engine room stores, and maintain her in a thoroughly efficient state in hull and machinery for ordinary cargo service. By clause 4, the charterers were to provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions, and all other charges whatsoever, except those before stated." By clause 21: "The act of God, the King's enemies, loss or damage from fire on board in hulk of craft, or on shore, arrest and/or restraint of princes, rulers, and people, collision, any act, neglect, or default whatsoever of pilot, master, or crew in the management or navigation of the ship, and all and every of the dangers and accidents of the seas, canals, and rivers, and of navigation of whatever nature or kind always mutually excepted."

The vessel by the directions of the charterers or their agents in or about the months of June and July, 1917, loaded at Nantes a part cargo of cement and general cargo for Casablanca, Morocco. She then proceeded to Lisbon and was loaded with further cargo, consisting of cases of benzine and/or petrol and iron for Casablanca and other ports on the Morocco coast. She arrived at Casablanca on July 17, and there discharged a portion of her cargo. The cargo was discharged by Arab workmen and winchmen from the shore supplied and sent on board by the charterers' agents. The cargo in No. 1 hold included a considerable quantity of cases of benzine or petrol which had suffered somewhat by handling and/or by rough weather on the voyage, so that there had been some leakage from the tins in the cases into the hold. On July 21 it had become necessary to shift from No. 1 lower hold a number of the cases of benzine which were required to be taken on by the ship to Safi, and for this purpose the native stevedores had placed heavy planks across the forward end of the hatchway in the 'tween decks, using it as a platform in the process of transferring the cases from the lower hold to the 'tween decks. There were four or five of the Arab shore labourers in the lower hold filling the slings which, when filled, were hove up by means of the winch situated on the upper deck to the 'tween decks level of the platform on which some of the Arabs in the 'tween decks were working. In consequence of the breakage of the cases there was a considerable amount of petrol vapour in the hold. In the course of heaving a sling of the cases from the hold the rope by which the sling was being raised or the sling itself came into contact with the boards placed across the forward end of the hatch, causing one of the boards to fall into the lower hold, and the fall was instantaneously followed by a rush of flames from the lower hold, and this resulted eventually in the total destruction of the ship.

The owners contended (so far as material) that the charterers were liable for the loss of the ship; that fire caused by negligence was not an excepted peril; and that the ship was in fact lost by the negligence of the stevedores, who were the charterers' servants, in letting the sling strike the board, knocking it into the hold, and thereby causing a spark which set fire to the petrol vapour and destroyed the ship.

The charterers contended that fire however caused was an excepted peril; that there was no negligence for which the charterers were responsible, inasmuch as to let a board fall into the hold of the ship could do no harm to the ship and therefore was not negligence towards the owners; and that the danger and/or damage were too remote--i.e., no reasonable man would have foreseen danger and/or damage of this kind resulting from the fall of the board.
The three arbitrators made the following findings of fact:--
"(a) That the ship was lost by fire.
"(b) That the fire arose from a spark igniting petrol vapour in the hold.
"(c) That the spark was caused by the falling board coming into contact with some substance in the hold.
"(d) That the fall of the board was caused by the negligence of the Arabs (other than the winchman) engaged in the work of discharging.
"(e) That the said Arabs were employed by the charterers or their agents the Cie. Transatlantique on behalf of the charterers, and that the said Arabs were the servants of the charterers.
"(f) That the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated.
"(g) There was no evidence before us that the Arabs chosen were known or likely to be negligent.

The damages claimed are too remote. In an action of negligence the measure of damages is the same as in an action for breach of contract. The damages must be such as can reasonably be anticipated as the result of the negligent act.

In the present case the arbitrators have found that it could not reasonably have been anticipated that the negligent act of dropping the plank into the hold would have caused a spark. The damage was not the natural or probable consequence of the act. The charterers were not responsible for starting the spark which set fire to the ship.

Next, the exception of "fire always mutually excepted" in clause 21 relieves the charterers from liability. The exception covers fire caused by negligence. The language of the clause is general. The rule that the exceptions do not relieve the shipowner from liability for his negligence unless a term to that effect is clearly expressed does not apply to the charterer.

In considering whether an act is or is not an act of negligence, the Court is entitled to consider what a reasonable person ought to have anticipated. If the act is an act of negligence, all the damage that directly flows from it is recoverable. In the report in the Law Journal the words "who is guilty of negligence" are omitted, the passage reading: "I entertain considerable doubt whether a man is responsible for all the possible consequences that may, under any circumstances, arise in respect of mischief which by no possibility could he have foreseen, and which no reasonable person under any circumstances could be called upon to have anticipated."

Next, the charterers are not relieved by the exception of "fire." It is a well-established rule, for which it is not necessary to cite authority, that the exception would not relieve a shipowner from the results of a fire caused by negligence unless a stipulation to that effect were clearly expressed. The same rule applies to charterers. There is here no express term relieving the charterers from liability for their negligence. The result is that the respondents' ship has been destroyed owing to the negligence of the charterers' servants, and there is no express term relieving the charterers.

Assuming the Chief Baron to have been correctly reported in the Exchequer Reports, the difference between the two views is this: According to the one view, the consequences which may reasonably be expected to result from a particular act are material only in reference to the question whether the act is or is not a negligent act; according to the other view, those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable. This gets rid at once of an element which requires consideration in a chain of causation in testing the question of legal liability--namely, the foresight or anticipation of the reasonable man. In Smith v. London and South Western Channell B. said: 'Where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not . . . but when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.' And Blackburn J. in the same case said: 'What the defendants might reasonably anticipate is only material with reference to the question, whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence"'; and after referring to the various phrases used in connection with remoteness of damages he said: "But it must be remembered, to use the words of a well-known American author (Sedgwick), that ' the legal distinction between what is proximate and what is remote is not a logical one, nor does it depend upon relations of time and space; it is purely practical, the reason for distinguishing between the proximate and remote causes and consequences being a purely practical one.”

In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants' servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants' junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage, but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote.


WARRINGTON L.J.

The result may be summarised as follows: The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act. Sufficient authority for the proposition is afforded by Smith v. London and South Western Ry. Co., in the Exchequer Chamber, and particularly by the judgments of Channell B. and Blackburn J. In the present case it is clear that the act causing the plank to fall was in law a negligent act, because some damage to the ship might reasonably be anticipated. If this is so then the appellants are liable for the actual loss, that being on the findings of the arbitrators the direct result of the falling board.


SCRUTTON L.J.

The second defence is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. On this head we were referred to a number of well known cases in which vague language, which I cannot think to be really helpful, has been used in an attempt to define the point at which damage becomes too remote from, or not sufficiently directly caused by, the breach of duty, which is the original cause of action, to be recoverable. For instance, I cannot think it useful to say the damage must be the natural and probable result. This suggests that there are results which are natural but not probable, and other results which are probable but not natural. I am not sure what either adjective means in this connection; if they mean the same thing, two need not be used; if they mean different things, the difference between them should be defined. And as to many cases of fact in which the distinction has been drawn, it is difficult to see why one case should be decided one way and one another.

In this case, however, the problem is simpler. To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.

In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.