MacNamara v Owners of the Steamship "Hatteras"

• Jurisdiction: Ireland
• Judgment Date: 29 July 1933
• Date: 29 July 1933
• Docket Number: (1930. No. 28.)
• Court: Supreme Court (Irish Free State)

Supreme Court.

(1930. No. 28.)

MacNamara v. Owners of the S.S. "Hatteras."

MICHAEL MacNAMARA & Son

Plaintiffs

and

THE OWNERS OF THE STEAMSHIP, "HATTERAS,"Defendants, (No. 2)

Shipping - Bill of lading - Subject to the provisions of the Harter Act - American contract - Construction - Clause of exemption from liability for loss or damage - Loss arising from "negligence, fault or failure" in proper loading or stowage - Loss arising from "faults or errors in the management of the vessel" - Faulty stowage - Foreign law - How construed - Expert evidence.

Trial of Action.

This action had previously been decided by Meredith J. on the 26th November, 1930. The parties had, to save expense, agreed to state the facts in the form of a Special Case. Meredith J. had answered the two questions of law submitted in the Special Case in favour of the plaintiffs (reported [1931] I. R. 73). These two questions of law were as follows:—

"1. Whether, on the true construction of the said bills of lading, and in the absence of negligence as alleged on the part of the defendants, their servants, or agents, the defendants are liable for the damage caused to the plaintiffs' tobacco by vermin as aforesaid.

2. Whether, on the true construction of the said bills of lading, the defendants are exempt from liability for the damage caused to the plaintiffs' tobacco by vermin as aforesaid, notwithstanding negligence as alleged on the part of the defendants, their servants, or agents."

The defendants had appealed from the decision of Meredith J. to the Supreme Court, and that Court had held that the bills of lading were American contracts, and as such should be construed by American law, and that that law must be proved or admitted before the Court would be competent to decide the questions of law submitted in the Special Case. The Supreme Court therefore discharged the order of Meredith J. and remitted the Special Case to him to be determined accordingly (reported [1931] I. R. 337).

The Special Case, therefore, now came again before Meredith J. in pursuance of the order of the Supreme Court.

At this hearing expert evidence was given as to American law, and this evidence is sufficiently referred to in the judgment of Meredith J. Mr. Lucius Fairchild Crane was the expert called on behalf of the plaintiffs, and Mr. Arthur John Barrett K.C. was the expert called on behalf of the defendants. The facts have been summarised in the headnote, and are fully stated in the report of the previous hearing ([1931] I. R. 73).

The defendants appealed to the Supreme Court (2) from so much of the order of Meredith J. as answered the first question of law submitted in the Special Case in the affirmative.

Defendants, who were shipowners, by two bills of lading (which were similar) agreed to carry certain hogsheads of leaf tobacco from the port of Norfolk, U.S.A., to the port of Dublin, and there to deliver same to the plaintiffs in good order and condition. The bills of lading stated that the shipments were subject to all the terms and provisions of, and all the exemptions from liability contained in, the Harter Act, an Act of Congress of the United States of America. That Act, by sect. 1, provides that it shall not be lawful for the owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading any clause whereby he shall be relieved from liability for loss or damage, "arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery" of merchandise committed to his charge, and any words or clauses of such import inserted in bills of lading shall be null and void and of no effect. Each of the bills of lading provided that neither the vessel, her owner, nor agent should be liable for loss or damage resulting from (inter alia) inherent vice, nature, defect, or change of character in the goods, and that "except when caused by negligence on the part of the vessel," neither the vessel, her owner, nor agent should be liable for loss or damage resulting from (inter alia) taint from any other goods, or vermin. It was admitted: 1, that the hogsheads of tobacco had been delivered to the defendants in good order and condition and were so shipped, but that on arrival at the port of Dublin they were found to be damaged by vermin, which had penetrated into the hogsheads during the voyage; 2, that certain bales of rabbit skins had also been shipped and had been stowed in the same part of the vessel as the hogsheads of tobacco, and were on arrival at Dublin found to contain vermin of the same species; and 3, that the vermin were not due to, or caused by, anything inherent in the hogsheads of tobacco, but came from the rabbit skins. The plaintiffs sued the defendants for damages for breach of contract contained in the bills of lading, and, alternatively, for negligence. The defendants relied on the clause in the bills of lading exempting them from liability for loss or damage resulting from vermin except when caused by negligence on the part of the vessel. The plaintiffs contended that the clause was invalid since there was excepted out of that clause only loss or damage caused by negligence, whereas the Harter Act required the shipowner to accept liability for loss or damage arising not only from "negligence" but also from "fault or failure" in the proper loading, stowage, etc., of the merchandise. Both parties concurred in stating two questions of law in the form of a Special Case for the opinion of the Court.

The Special Case had already come before Meredith J. who had decided both questions in favour of the plaintiffs (reported [1931] I. R. 73), but on appeal the Supreme Court had held that the bills of lading were American contracts, and as such should be construed by American law, and that that law must be proved or admitted before the Court would be competent to decide the questions of law submitted in the Special Case, and the Supreme Court had, therefore, discharged the order of Meredith J. and remitted the Special Case to him to be determined accordingly (reported [1931] I. R. 337).

On the second hearing of the Special Case:

Held by the Supreme Court, reversing Meredith J., in answer to the first question submitted, that according to American law as proved in evidence, the exemptions from liability in the bills of lading were valid, and therefore, in the absence of negligence on the part of the defendants, they were not liable for the damage caused to the plaintiff's tobacco.

Held also by Meredith J., in answer to the second question submitted (no appeal being taken in respect of this question), that the defendants were not exempt from liability by virtue of sect. 3 of the Harter Act, which relieves a shipowner from responsibility from damage or loss resulting from"faults or errors in navigation or in the management of the vessel," since there was no fault or error in navigation, and faulty stowage was not a fault or error in the management of the vessel.

Cur. adv. vult.

Meredith J. :—

In order to avoid the expense of a trial of issues of fact which may be immaterial, a Special Case has been stated by counsel in this action for the purpose of obtaining from the Court a decision on certain questions of law. The facts which the Court is asked to assume for the purpose of its decision on the questions of law are stated in the Special Case as follows:—

1. That the defendants, the owners of the said steamship"Hatteras," are the United States Shipping Board.

2. That the said steamship is a general cargo ship regularly trading between ports in the United States of America and (inter alia) ports in the Irish Free State.

3. That the defendants by two bills of lading, both dated the 28th day of October, 1927, agreed (subject to the conditions therein contained) to carry 10 hogsheads and 59 hogsheads, respectively, of leaf tobacco (therein stated as having been "received on board in apparent good order and condition") per the said steamship from the port of Norfolk, United States of America, to the port of Dublin, and there to deliver same to the plaintiffs in like good order and condition.

4. That the plaintiffs are the indorsees of the said bills of lading to whom the property in the goods therein mentioned has passed.

5. That the said 69 hogsheads of tobacco were delivered to the defendants at the port of Norfolk, United States of America, in good order and condition, and were so shipped in the said steamship.

6. That the said steamship proceeded to the port of Dublin (via the port of New York), and arrived in Dublin on or about the 27th day of November, 1927.

7. That on arrival at the port of Dublin the said 69 hogsheads of tobacco were found to be damaged by vermin, which had penetrated into the hogsheads during the voyage.

8. That 21 bales of rabbit skins, which had been shipped at the port of New York in the said steamship and stowed in the same part of the said ship as the said 69 hogsheads of tobacco, were on arrival at the port of Dublin found to contain vermin of the same species.

9. That the said vermin were not due to or caused by anything inherent in the said hogsheads of tobacco but originated in and came from the said rabbit skins.

I gave my decision on the questions of law raised in the Special Case as far back as November, 1930, and the defendants appealed. When the appeal came on for hearing before the Supreme Court the Court took the point that the contract was an American contract and that the matters in issue should be determined in accordance with American law. So the case was sent back to me for rehearing. As a result I have had the advantage of hearing the case very ably argued by counsel on both sides, and in addition I have had the advantage of having American law expounded to me by eminent American lawyers; the expert in American law produced as witness for the defendants giving...