F Kanematsu & Co Ltd v The Shahzada

For the reasons which have been given I am of opinion that this Court has no jurisdiction to entertain this action. But since the merits of the case have been litigated before me and my view on this point may be held to be erroneous I propose, briefly, to express the conclusions which I have reached on the other issues in the case.

In so far as the claim for damages is based upon the allegation that due diligence was not exercised in caring for the goods whilst they were at Glebe Island and Pyrmont no substantial question of law arises; there is no doubt that the plaintiff would be entitled to recover upon proof of this allegation in any competent court. But it is not so clear that the plaintiff would be held entitled to damages, merely, in respect of deterioration in the goods occurring during the period of delay consequent upon the collision. No doubt the plaintiff considered that it was entitled to recover damages in respect of any loss resulting from this delay but the statement of claim as originally drawn did not, in my view, make such a claim and it was not until the evidence had been concluded that such a claim was expressly added. As already indicated the plaintiff maintained that the question of the shipowner's liability should, in the circumstances of the case, be determined on the basis that he was a common carrier of the goods in question. This result was said to flow from the rescission by the plaintiff of the contracts of carriage after it had been discovered, on 20th October 1952, that the goods had been improperly stowed on deck. In support of this contention reliance was placed on the decision in Hain Steamship Co. Ltd. v. Tate & Lyle Ltd. [1] and on the passage already referred to in Scrutton on Charter Parties and Bills of Lading, 16th ed. (1955), p. 298. In the case referred to the House of Lords was concerned with the position of a cargo owner who, with full knowledge that the ship upon which his goods were being carried had, in breach of the contract of carriage, deviated from the contract voyage, had expressly waived the breach. The result of the waiver, according to their Lordships, was that the contract of carriage remained in full force and effect notwithstanding the deviation. In the action the cargo owner had sought the return of moneys deposited on account of a liability to make a general average contribution and, in the result it was held that it was not entitled to recover such moneys. In the present case it seems to have been assumed that the case is an authority for the proposition that where there has been a deviation, or other fundamental breach of a contract of carriage, the cargo owner will remain bound by all the terms of the contract and the shipowner will be entitled to rely upon any relevant term of the contract for his protection unless the contract is rescinded. But the decision in that case in no way detracts from the rule that where, unknown at the time to a cargo owner, there has been a wrongful deviation, the shipowner is not entitled to rely upon the exceptions prescribed by the rules under the Sea Carriage of Goods Act. In such a case he will not escape liability for loss of or damage to cargo, unless he can show that the loss or damage was occasioned either by an act of God or by the Queen's enemies or as the result of inherent vice in the goods and, in addition, that such loss and damage would have occurred even if there had been no deviation (see Joseph Thorley Ltd. v. Orchis Steamship Co. Ltd. [2] ; James Morrison & Co. Ltd. v. Shaw, Savill & Albion Co. Ltd. [3] ; A/S Rendal v. Arcos Ltd. [4] ; Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [5] ). "Practically", as the learned authors of Scrutton on Charter Parties and Bills of Lading, 16th ed. (1955), p. 298, observes, "proof of the second proposition is hardly possible as regards any cause of loss except inherent vice of the goods."