W. Burrell & Company v P. J. Tuohy, Secretary to The Commissioners of Kingstown Harbour, Continued in the Name of H. Williams, Secretary to The Said Commissioners

• Jurisdiction: Ireland
• Judgment Date: 04 February 1898
• Date: 04 February 1898
• Court: Queen's Bench Division (Ireland)

W. Burrell & Co.

and

P. J. Tuohy, Secretary to the Commissioners of Kingstown Harbour, continued in the Name of H. Wtlliams, Secretary to the said Commissioners (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Harbour Commissioners — Negligence — Harbour of refuge — Buoy — Defective welding of ring — Omission of adequate test.

A ship parted from her moorings in Kingstown Harbour during a strong gale, and sustained damage. In the opinion of the Judge who tried the case without a jury and of the Divisional Court the cause of the accident was that the ring to which the ship's cable was attached was defectively welded to the buoy, and broke off without any contributory negligence by the plaintiffs (the shipowners). The buoy had been in use a short time only. It had been purchased by the Harbour Commissioners from a first-class manufacturer, and the defect in the welding could not have been discovered by inspection, or by the ordinary test of hammering. It is not the practice of manufacturers to submit such rings to any test (though flaws are possible in the best workmanship) unless required to do so by the specification. But if so required (which is frequently but not universally done) they are tested by a public department in a well-known and recognised manner, analogous to the testing of cable chains. This precaution had not been taken by the Harbour Commissioners:—

Held, that the omission to apply such a test was actionable negligence on the part of the Commissioners, rendering them responsible for the result of the accident.

New Trial Motion.

The action was brought against the defendant (Secretary of the Board of Public Works in Ireland), as Secretary of the Kingstown Harbour Commissioners, to recover damages for injuries sustained by the plaintiffs' vessel while moored in Kingstown Harbour. The action was tried in the Trinity Sittings, 1897, by Lord Justice Holmes, without a jury; and His Lordship found in favour of the plaintiffs, and assessed the damages at £1870; and entered judgment for them accordingly.

The material facts, as well as the questions argued, are sufficiently stated in the judgments of Lord Justice Holmes (at Nisi Prius (1)) and of the Divisional Court.

Cur. adv. vult.

Ronan, Q.C., Henry, Q.C., and Blood, for the plaintiffs.

Campbell, Q.C., Wright, Q.C., and Conner, for the defendants.

Andrews, J.:—

This was an action for damages for injuries sustained in October, 1896, by a ship of the plaintiffs of 1449 tons register, and which injuries were occasioned, as they alleged, by negligence on the part of the defendants, who are the harbour authority of Kingstown Harbour, and have the control of that harbour and the mooring buoys therein. In October, 1896, the plaintiffs' ship

was moored in Kingstown Harbour, which is a harbour of refuge, by a cable attached to one of the ship's anchors, and another cable attached to a mooring buoy. During a full gale the ship parted from her moorings, and sustained the injuries complained of. The negligence of the defendants was, by the statement of claim, alleged to consist of negligent directions by their servants in relation to the mooring of the ship, and negligence in relation to the buoy, the mooring ring of which was alleged to be defective and insufficient for its purpose, and by the breaking of which the plaintiffs alleged that the ship parted from her moorings, and was injured. Besides traverses, there was a defence of contributory negligence on the part of the plaintiffs.

The action was tried by Mr. Justice (now Lord Justice) Holmes without a jury. The real questions at the trial were, first and mainly, as to the defendants' negligence in relation to the defective condition of the mooring ring of the buoy, and next as to contributory negligence on the part of the plaintiffs.

The learned Judge found:—

1. That the defendants were guilty of negligence in not having the mooring ring (in the finding called the “spindle”) of the buoy tested before it was used.

2. That this negligence was the cause of the in uries complained of.

3. That the plaintiffs did not contribute to the accident by negligence on their part; and he assessed the plaintiffs' damages at £1870, and gave judgment for them accordingly.

The defendants then moved this Court to enter the judgment for them, on the grounds that the learned Judge was wrong in finding as he did, and that his findings were without evidence to sustain them, and against evidence and the weight of evidence, and that he should have given judgment for the defendants, or that this Court should make an order for a new trial. The question mainly argued before us was that which had constituted the principal contention at the trial, viz. whether there was sufficient

evidence of negligence on the part of the defendants in relation to the defective condition of the mooring ring of the buoy.

When an action is tried by a Judge without a jury, the question whether his findings, and the judgment given by him at the trial, should be disturbed, is not altogether the same as if the question arose in an action tried by a jury; but it lies at least on the party who seeks to disturb them to make out to the satisfaction of the Court that the Judge at the trial was wrong. If authority for so apparently obvious a proposition be required, I may refer to the case of the Colonial Securities Trust Company v. Massey (1). If the question before the Court relates to the sufficiency or the weight of the evidence given at the trial, due and reasonable regard should be had to the fact that the Judge at the trial before whom the evidence was given, was in a better position to estimate its sufficiency and weight than the Court is, which, in most cases, as in the present case, has before it what practically can only

be a more or less abbreviated report, taken from the Judge's notes. Referring to the learned Judge's report, I shall now proceed to examine the evidence on the first question.

It was proved, beyond dispute, at the trial of this action that the mooring ring of the buoy, to which one of the ship's cables was attached, in accordance with the defendants' own by-laws, had a very substantial defect, which was not, however, discoverable by external inspection, nor, as I will assume, by the ordinary test of sounding it with a hammer to ascertain its tone. The defect arose from insufficient welding of the ring where it broke. It was received by the defendants in January, 1896, the buoy (with the ring as part of it) having been ordered in 1895 from a firm of high reputation, but to be made according to a specification which did not specify that it was to be tested. James Maxton, a consulting engineer and naval architect, one of the plaintiffs' witnesses, said he had inspected the broken ring; that the metal had not been welded properly; and that the defective welding

could easily have been detected by testing. J. M'William, another of the plaintiffs’ witnesses, and a surveyor to Lloyds, who had also examined the broken ring, said:—“A considerable section of it was not welded at all, 5 inches long by 3 quarters wide. This left it weak. It could not have been seen before the fracture. It was, however, an illformed weld, such as would lead anyone to suspect it. It would have been detected at once if it had been tested.” Caleb Smith, a maker of buoys, and another witness for the plaintiffs, said he had examined the fracture. “It was caused by faulty welding. The flaw was 7/8 of an inch, and extending right across. That portion had never been welded. The defect might have occurred by a little dirt having got in. The metal is not good, and the workmanship is rough. I am sure the defect could have been discovered.” In cross-examination he said:—“In all mooring buoys for public dock yards testing is generally included in the specification, and it is then sent to a public testing machine. Any person that wishes to get a good ring of this kind can specify that it be tested, and it is then tested under the authority of the Board of Trade. This is very generally done in specifications, but it increases the price.” Samuel Smith, foreman of the last witness, and a witness for the plaintiffs, said—“The interior (of the ring) is not welded. When the skin is gone it comes to the flaw, and a sudden jerk snaps it. Rings of this kind are tested, if it is specified.” In cross-examination he said:—“You could not see the bad welding when it is closed. It is not always specified that it be tested.”

The following evidence was given on this part of the case on behalf of the defendants:—Frederick J. Dick, assistant engineer to the Board of Works (who are in fact the defendants), said—“The buoy was ordered in 1895 from Bellamy & Co. That firm has a high reputation in this class of work. It was ordered and delivered according to specification. There was no indication to lead me to the conclusion that there was anything wrong. It looked rough forging, but there was nothing to indicate that it was weak forging. I saw the ring after it was broken. There is a small internal defect in the welding. If I had known that the ring had the defect which is now apparent, I would not have allowed it to be used at all. The strain during the storm would vary from eight to twenty tons. That would be the total strain on both cables.” In cross-examination he said:—“I did not ascertain that the ring had been tested in any way. It was not specified to be tested, as that is an unusual practice. In lieu of a test we leave a large margin of safety.”

The manager for Bellamy & Co. (called T. W. Ogan in the report) said—“The buoy and ring were made under my supervision. It was done with care and skill, and made of the best iron. The rings are examined, and tested with hammers. If a special test is...