The decision just delivered by the Court of Appeal in "the case of Portigern will be received with satisfaction in mercantile if not in shipowning circles. "Who point of oppression in the matter of carriage conditions dictated by shipowners, has long been so acute, that any decision the opposite direction must needs be welcomed. We know, of course, the excuse put forward on behalf of the shipowners that it is only by a repudiation of liability for damage occasioned on board their ships that they can offer a cheap rate of freight. Asa matter of fact, however, whether the freight be low or high, shippers are allowed no option. -And until, at any rate; there shall -be afforded them a choice between the alternative of a contract in which the shipowners undertake safe delivery of merchandise, perils of the seas excepted, and of one in which all risks of whatever nature remain at the risk of the shippers, the widespread dissatisfaction with the Fresent condition of affairs will, in our opinion, continue to be amply justified.
The facts in the case of the Vortigern were follows:—Plaintifis, the shipowners, contracted to carry a cargo from Cebu, in the Philippines, to Liverpool. The contract implied, of course, the condition that the vessel should be seaworthy—so equipped that is to say, as to be fit for the voyage and its purposes, Amongst the various stipulations of non-liability for adverse contingencies during the voyage was an exception in respect of losses occasioned by the '*neplect, default, or error in judgment of the owners, pilot, master and crew, or other servants of the shipowners,"" Some such is a common or, indeed, invariable clause. It cannot, however, be set Up as an answer to the paramount or initial obligation to provide a seaworthy vessel. Now, it is well known that steamships bound on a long voyage with cargo, can hardly carry fuel supplies for the whole voyage. 'They cannot carry a cargo of merchandise and a cargo' of coal too. It is usual to break up the yoy-age into stages, the ship's bunkers being replenished at the commencement of each stage. Occasionally—too frequently, in fact—it turns out that for one reason or another, the coal supplies have been cut too fine, and the vessel has to keep up steam by using cargo or fittings to eke out or supply the place of coal. This is pretty much what happened with the Vortiqern. At any rate, she ran short of coal and burnt cargo to the tune of some £600' worth. Her stages were these:—Cebu to Labuan, Labuan to Colombo, Colombo to Suez Canal (or Colombo to Perim, Perim to Suez Canal; it is not qui lear which), and Suez Canal to Liverpool. Between Colombo and the Canal coal ran out, It would have been easy, and perhaps was intended, to replenish at Perim, but the captain, misinformed by the engineer as to the want ity left in the bunkers, ran past! erin, only to find, too late, that if steam was to be kept up it was necessary shovel cargo into the furnaces. On arrival of tke ship, consignees paid the freight less the £600 representing the cargo thus burnt, Plaintifis sued them in the Admiralty Court, and on Mr, Justice Barnes giving judgment against the ship, the case was carried by the owners to the Court of Appeal.
Plaintiffs did not seek to deny the-implied warranty of seaworthiness. What they denied was that they had failed to fulfil it." There was, said they, no obligation, og is well known, that the vessel should hi kept seaworthy during the whole voyage shipowners have fulfilled the warranty in supplying a vessel seaworthy at the commencement. And that the Vortigern was seaworthy at the commencement of the Tad safely completed the first stage of the voyage, and what happened fter-wards was beside the question of seaworthy mess. After completion of the first st: their liability had to be. tested solely by the terms of the contract, And if by a mistake of the engineer the captain was misled, and failed to replenish his bunkers when he ought to have_reple ed them, well, that was a case of" neglect, default, or error in judgment," from which the terms of the carriage' contract. relieved them. The Court, however, were unanimous in affirming the judgment of Mr. Justice Barnes. It was, said. they, the obligation of the shipowners to provide a ship properly equipped for the voyage contracted for, namely, Cebu to Liverpool. If for their own purposes they chose to break the voyage up into stages, they could not, by this means, cut down' their obligation to supply a vessel ini all respects seaworthy so as to limit its application to the first stage only. If in such a case as the present it could be established against the shipowners that the vessel was not at the commencement of the voyage seaworthy for the whole of it, then they could only displace such a plea, which would be a good one, by showing that the necessities of the case required the division of the voyage into stages, and that the vessel was in fact seaworthy at the commencement of each stage. Plaintiff, in view of the importance of the matter to shipowners, asked for a stay of execution pending an appeal to the House of Lords, but this was refused. The judgment, tending as it does not merely to protect the interests of cargo-owners, hut also to the increased safety of ocean trafic, is likely to be cordially received by the mercantile community. We fully expect, however, as another result, that it will be regarded in certain shipowning circles as demonstration of the necessity for the addition of a coping-stone to their wall of defensive exceptions: n:., the imposition of a declaration of non: warranty of seaworthiness. If so, the present judgment will prove, if we mistake not, a road towards reform, for it is entirely unreasonable to suppose that a stipulation s0 opposed to public policy would obtain the endorsement of the Courts. And it is not beyond the bounds of hope that the removal of such a coping-stone might be made the occasion for other reductions in the dimensions of a structure of contractual exceptions in respect of which complaints have long been eud and general—Economist.
Text read from the printed page and cleaned; old type leaves the occasional error.