H . o f L.] Ow n e r s o f t h e Me d i a n a v. Ow n e r s o f t h e Co m e t ; Th e Me d i a n a. [ H . o f L.
Solicitors fo r the p la in tiffs , H o lm an , B ird w oo d, and Co.
Solicitors fo r the defendant, K in g , W igg, and Co., agents fo r H . J. R ichardson, Newcastle.
H O U S E O F L O R D S . Feb. 12 a n d 13, 1900.
(Before the Lo r d Ch a n c e l l o r (Halsbury), Lords Ma c n a g h t e n, Mo r r is, Sh a n d, Ja m e s o f He r e f o r d, and Br a m p t o n.)
Ow n e r s o f t h e Me d i a n a v. Ow n e r s o f t h e Co m e t ; Th e Me d i a n a. (a)
O N A P P E A L F R O M T H E C O U R T O F A P P E A L I N E N G L A N D .
C o llisio n — I n ju r y to lig h ts h ip — H ir e o f substitute
—Damages.
Whenever by a w ro n g fu l act another person is deprived o f his pro pe rty, a c la im f o r damages m ay be sustained, an d such damages are not m erely no m in al, though no a ctu a l p e c u n ia ry loss m ay be proved.
The Mersey Docks and H a rb o u r B o a rd are charged by statute w ith the d u ty o f lig h tin g the ap
proaches to the M ersey, a n d m a in ta in f o u r lig h tsh ip s in constant use, and two in reserve to take the places o f the others when they need re p a ir o r in other emergencies. One o f the lig h t
ships, the C., was damaged by collision w ith the M., a steamship belonging to the appellants. The collision was ow ing to the negligence o f those in charge o f the M. The O., one o f the reserve lig h t
ships, took the place o f the C. w h ile her damages were rep aire d. The owners o f the M . p a id the cost o f the re p a irs a n d a ll other out o f pocket expenses, but the board made a c la im f o r the loss o f the use o f the lig h ts h ip C. w h ile she was under re p a ir, or f o r the hire o f the substitute. I t was a d m itte d th a t the O. w o uld not have been em
ployed i f she had not been actin g as substitute f o r the C.
H e ld {a ffirm in g the ju d g m e n t o f the cou rt below), th a t they were e n title d to recover s ub stantia l damages f o r the loss o f the use o f the C.
The Greta Holme (77 L . T. Rep. 231; 8 Asp. M a r.
L a w Cas. 317; (1897) A . C. 596) follow ed.
Th i s was an appeal from a judgm ent o f the Court of Appeal (Sm ith and C ollins, L .JJ.), who had reversed a judgm ent of P hillim ore, J. s ittin g in the A d m ira lty D ivision.
The case is reported in 80 L . T. Rep. 173 ;
8 Asp. Mar. Law Cas. 493; (1899) P. 127.
The action was brought by the respondents to recover damages in respect of a collision which occurred on the 23rd A p ril 1898 between the appellants’ steamship M e d ia n a and the respon
dents’ ligh tship Comet, which was then employed upon the Crosby station, off the river Mersey.
The respondents, the Mersey Docks and H ar
bour Board, the owners of the Comet and the O rion hereinafter mentioned, were a public body charged by A ct of Parliam ent w ith the duty of lig h tin g the approaches to the riv e r Mersey, and kept six lightships, four of which were always in use on fo ur stations, a fifth was kept to replace the lightships a t such tim es as they were being overhauled, and
the sixth was kept in the rive r Mersey in readiness to take the place of any ligh tship which m ight be damaged by collision or other accident. D uring the preceding tw enty-five years there had been twenty-three cases of damage by collision w ith lightships, in eleven of which i t was necessary to replace the ligh tship by the one kept in readi
ness in the rive r Mersey, and during the same period there had been fo u r cases in which i t was necessary to withdraw one of the lightships in consequence of damage not occasioned by collision.
The expense of m aintaining the sixth lightship, including interest on capital invested in her, was stated by the marine surveyor to the respondents to amount to about 10001. a year. The O rion, the sixth lightship, took the place of the Comet after she had been damaged by collision, and it was ad
m itted th a t during the seventy-four days on which she took the place of the Comet she was not re
quired fo r any other purpose.
The appellants adm itted th e ir lia b ility , subject to a reference to the d is tric t registrar assisted by merchants.
On the 3rd Dec. 1898 the appellants agreed w ith the respondents as to a ll the items o f th e ir claim except No. 8, loss of the use o f the ligh tship Comet, or h ire of the services o f the ligh tship O rio n on the station from the 23rd A p ril 1898 to the 6th J u ly 1898, seventy-four days a t 41. 4s., 3101. 16s. The appellants agreed th a t the amount claimed in respect of th is item was correct, i f such claim was recoverable.
The adm itted items of claim covered a ll the actual out o f pocket expenses to which the re
spondents were p u t by reason of the substitution of the O rio n fo r the Comet, and the only question in dispute was whether the respondents were e ntitle d to be paid fo r the loss of the use o f the Comet during the seventy-four days during which she was under repair, or were entitled to hire of the O rio n which took her place. I t was contended on behalf of the appellants th a t inasmuch as the w ork of the Comet was performed by the O rion, another of the respondents’ lightships, which would not have been otherwise employed, the respondents sustained no loss or damage in respect of th e ir not being able to use the Comet, and th a t they were not entitled to any hire fo r the use of the O rio n as they expended no extra money and sustained no loss or damage through not having the use o f her owing to the collision, and th a t it was im m aterial whether she waB m erely la id up at anchor in the riv e r Mersey, as it was stated she generally was, or placed on an anchorage as a ligh tship , and, fu rth e r, th a t i f the claim was adm itted, the respondents would actually, through the happening of the collision, obtain a p ro fit which they would not otherwise have received, and th a t they could not legally do so.
I t was contended on behalf o f the respondents th a t they were entitled to compensation fo r the loss of the use of the Comet whether or not they could in fa ct show any actual loss or expense, and, fu rth e r, that, inasmuch as they had spent moneys in anticipation in providing a spare lig h t
ship to replace others damaged by collision, they were e ntitle d to remuneration fo r the use of the O rio n when she was replacing the Comet.
The reference was heard before the d is tric t registrar on the 8th Dec. 1898, and by his report, dated the 12th Dec. 1898, he allowed the item No. 8.
"»> Reported b y O. E. Ma l d e n, Esq., B a rris te r-a t-L a w .
Yo l. IX ., N. 8. G
H . o f L.] Ow n e r s o f t h e Me d i a n a v. Ow n e r s o f t h e Co m e t ; Th e Me d i a n a. [ H . o fL.
The appellants carried in notice of objec
tio n to the registrar’s report, and P hillim ore, J.
allowed the objection, but his decision was reversed by the C ourt of Appeal as above mentioned.
J. W alton, Q.C. and H o rrid g e appeared fo r the appellants, and contended th a t the case of The G reta Holm e (77 L. T. Rep. 231; 8 Asp. M ar. Law Cas. 317; (1897) A. C. 596), upon which the court below relied, was distinguishable. The respon
dents were p ut to no additional expense by having to use the O rion, and therefore they are not entitled to any compensation. They cannot be allowed to make a p ro fit out of it. The case of The C ity o f P e k in g (63 L . T. Rep. 722; 6 Asp.
M ar. Law Cas. 572; 15 App. Cas. 438), before the Judicial Committee of the P rivy Council, is exactly in point. They also cited
The C larence, 3 W m . B o b . 283 ; The M u n s te r (1899) P. 129, n ;
The E m e ra ld , 80 L . T . B ep. 178, n ; 8 A s p . M a r.
L a w Cas. 498, n . ; (1899) P . 130, n.
Carver, Q.C., B . A s p in a ll, Q.C., and M a u ric e H i ll, who appeared fo r the respondents, were only called upon to distinguish the case of The C ity o f P e k in g (u b i sup.).
A t the conclusion of the arguments th e ir Lord- ships gave judgm ent as follows :—
The Lo r d Ch a n c e l l o r (H alsbury).—M y Lords: This case, I th in k, is really governed by the. principles laid down by this House in The G reta H olm e (u b i sup.), in which it was pointed out th a t the respondents were de
prived by the negligence of the appellants of the use of th e ir dredger, and were entitled to the damages awarded. L ord W atson pointed out in th a t case th a t the result of the w ith drawal o f the dredger from its ordinary work was the accumulation o f a considerable amount of s ilt which in its e lf was an in ju ry sounding in damages. T hat decision has a much wider appli
cation than has been assigned to it by the appel
lants’ counsel, and L ord Herschell in terms stated the proposition, and I may say th a t I m yself intended to lay i t down, th a t where by a man’s w rongful act something belonging to another was injured or taken away, a claim fo r damages may be sustained, and th a t the damages in such a case are not merely nominal. Damages are not neces
sarily nom inal because they are sm all in amount.
The term “ nom inal damages ” is a technical one which negatives any real damage, and means nothing more than th a t a legal rig h t has been infringed in respect to which a man is entitled to judgm ent. B u t the term “ nom inal damages ” does not mean small damages. The whole region o f inq u iry into damages is one o f extreme d iffi
culty, and you cannot lay down any fixed principle to a ju ry as to the amount of compensation which ought to be given. Take the most fa m ilia r and ordinary case. How is anyone to measure pain and suffering caused by an accident in terms of moneys counted P By a manly m ind pain and suffering, when passed, are soon forgotten, but the law recognises th a t as a topic upon which damages may be given. In this particular case the broad proposition is th a t the respondents were deprived of th e ir vessel. I purposely do not use the words the use of th e ir vessel. For the wrongdoer has no rig h t to inquire what or whether any use would have been made of the vessel o f which the respondents were deprived. Suppose, fo r example,
someone went into my house and took away a chair and retained i t fo r some months, could any
one say th a t I as owner am entitled to no repara
tio n on the ground th a t I have other chairs or th a t I was not in the h abit of s ittin g upon th a t p articular chair P The ju ry ’s task is often a d iffi
cu lt one in cases of th a t character, and an a rbi
tra to r or ju ry often has to take an a rtific ia l hypothesis; such as in the case to which I have referred what it would cost to hire such a chair.
The broad principle applicable to th is appeal is quite independent of the p articular use which the respondents would make of the Comet. I t is wholly different from a case o f special damage, where you have to ascertain the specific loss of p ro fit or other advantage which would otherwise have accrued. Where special damage is alleged you must show precisely the nature and extent of the in ju ry sustained, and the person liable must have an opportunity of inq uiring into the details before the case comes into court In the case, however, of general damage no such principle applies, and the ju ry have only to give a proper equivalent fo r the unlaw ful withdrawal of the particular subject-m atter. That broad p rin ciple comprehends this and many other cases, and the ju ry may assess damages which are not nom inal damages though the amount may be triflin g . I t appears to me, therefore, th a t what the learned Lords in The G reta Holme intended to point out—and Lord Herschell gives expression to i t in plain terms—was th a t the unlaw ful keep
ing back what belongs to another person is a ground fo r real and not nom inal damages. I put aside the question o f trespass, involving high
handed procedure or insolent behaviour, and other cases which have been held to e ntitle to aggra
vated and punitive damages. The principle of assessing damages must be the same in a ll forms of the unlaw ful detention of another man’s pro
perty. That seems to me so plain th a t I have been puzzled to learn th a t in the A d m iralty C ourt the loss of the use of th is vessel has been treated as something fo r which no money damage can be allowed. I am glad th a t such a principle has not been affirmed in your Lord- ships’ House, as i t seems to me inconsistent and unreasonable.
The only d ifficu lty I have had is in connec
tio n w ith the decision in the P rivy Council in The C ity o f P eking (u b i sup.). B u t I have, I th in k, discovered a clue to the real grounds of the judgm ent in th a t case. I t is to be observed, in the firs t place, th a t there is a d ifficu lty in understanding the decision of the Judicial Com
m ittee w ithout the report of those persons who had to assess the damage. T heir report, so fa r as quoted, is not a model of clearness. The principle of tbe decision in The C ity o f P eking appears to be th a t you could not be paid fo r the detention o f the damaged vessel when allowance was already made fo r the use of the substituted one, because you would be paid twice over. I f th a t is the real principle of the decision i t is not incon
sistent w ith but is on the same lines as the jud g ment of the C ourt of Appeal in the present case.
W hether the question was raised as to the absolute use o f the vessel I am not able to say. Therefore, to my mind, th a t case affords no d ifficu lty in a rrivin g at the conclusion th a t the judgm ent ought to be affirmed, and I move your Lordships accordingly.
M ARITIME LAW CASES.
43 H. o f L.] Ow n e r s o f t h e Ga n n e t v. Ow n e r s o f t h e Al g o a ; Th e Ga n n e t.Lord Ma c n a g h t e n. — M y L ord s: I concur.
I took p art in the hearing of The C ity o f P eking, but I cannot pretend to remember very accurately whether th is question was or was not directly raised. M y impression, however, d istin ctly is th a t the present question was not involved in th a t case.
In th a t case the parties adm itted th a t the sub
stituted service was provided a t the expense of the wrongdoers, and th a t there had been no loss of p ro fit whatever. They claimed an extravagant sum fo r demurrage on the a uthority of The B la ck P rin c e (Lush, 568), but th e ir Lordships had no hesitation in rejecting th a t claim , because th a t would have been paying them twice over. I observe th a t The C ity o f P eking was not cited in the Court of Appeal.
Lord Mo r r is.—My Lords : I am of the same opinion. I th in k th a t th is case entirely comes w ith in the principle in The G reta Holm e, which overruled the principles o f previous cases as regards the mode of assessing damages.
Lord Sh a n d.—M y Lords : I entirely concur w ith the m otion of the Lord Chancellor. I t was established th a t the O rion was kept expressly fo r the purpose of meeting such a contingency as happened. I t appears th a t no fewer than eleven cases have occurred during the last tw enty-five years in which a substitute has been called fo r to replace lightships damaged by collision on the Mersey. I f the Mersey Commissioners had hired a ship fo r the purpose of doiug the duty fo r which th is sixth vessel was kept, there could be no answer to the claim fo r the cost of hire. I t seems to me, therefore, i f there be no answer in th a t case neither can there be any to this.
Lord Ja m e s o f He r e f o r d.—M y L o rd s: I en
tire ly concur. I th in k th a t there is a distinction between the case at the bar and the one deter
mined by the P rivy Council arising from the fact th a t in this case there has been expense incurred in providing the very remedy supplied in order to get rid of the effect o f the act of the wrongdoer, while in The C ity o f P e king there was no expense incurred in order to remedy the in ju ry .
Lord Br a m p t o n.—M y Lords : I am of the same opinion. I desire to say one word w ith regard to the O rion, which was the substituted vessel b u ilt and maintained a t great expense so th a t the respondents m ight have the means ready to obviate the inconvenience or danger which m ight arise from such a m isfortune as befell the Comet.
As between themselves and the wrongdoer, they were under no obligation whatever to use the O rion. They m ight have hired a vessel, in which case the lia b ility fo r the hire would have been clear. W hy should the appellants claim a rig h t to have the services of the O rion gratuitously ? They m ight as well claim the services of the skilled workmen employed by the respondents who happened a t the moment to be idle. T hat cannot be the law. In my opinion the services of the O rio n in th is case ought to be paid fo r in the shape o f damages.
Judgm ent appealed fr o m affirm ed, and appeal dismissed w ith costs.
Solicitors fo r the appellants, T. Cooper and Co., fo r H i l l , D ickin so n , D ickinso n, and H i ll, Liverpool.
Solicitors fo r the respondents, Bowcliffes, B a w lc , and Co., fo r A . T. S quarey, Liverpool.
[H. o f L.
A p r i l 1 and 3, 1900.
(Before the Lo r d Ch a n c e l l o r (Halsbury), Lords Ma c n a g h t e n, Mo r r is, Da v e y, Br a m p t o n, and Ro b e r t s o n, w ith N autical Assessors.)
Ow n e r s o f t h e Ga n n e t v.Ow n e r s o f t h e Al g o a ; Th e Ga n n e t. (a)
C o llisio n — Second anchor lig h t—“ A t o r near the stern ” — R egulations f o r P reve ntin g C ollisions a t Sea 1897, a rt. 11.
I t is n o t a compliance w ith a rt. 11 o f the R e gu la
tions f o r P re ve n tin g C ollisions a t Sea 1897, w h ich provides th a t a ship o f 150ft. o r upw ards in length shall, when a t anchor, c a rry a second anchor lig h t “ a t o r ne ar the stern o f the vessel,” to e x h ib it a lig h t a t a distance o f 120/f.
fr o m the stern. W here the lig h ts o f a vessel are not exhibited in the p o sitio n re q u ire d by the c o llis io n reg ulation s i t is necessary f o r her to establish beyond a ll doubt th a t the lig h t was in such a p o s itio n th a t i t ought to have been seen by the other vessel before the cou rt w i ll fin d the oth er vessel i n f a u l t f o r bad look-out.
Th is was an appeal from a judgm ent o f the C ourt of Appeal (Sm ith, W illiam s, and Romer, L .JJ.), reported in (1899) P. 230, who had varied a deci
sion of B u ckn ill, J. s ittin g in A d m iralty.
On the 19th Nov. 1898, at about 4 a.m., the screw steamship Algoa of 7575 tons gross register was at anchor in the river Elbe o ff Brunshausen.
The wind was south-easterly and fresh, and the weather was gloomy. The tide was the firs t of the flood. The Algoa, which was 455ft. long, was swinging to her anchor very slowly, owing to the sluggish tide and the direction of the wind.
She was heading across the channel to the north
ward, w ith her starboard side up the river, and her stern about 200 yards from the south shore. She had at the tim e a globe anchor lig h t hanging in the forestay forward, 38ft. from the deck, and a second lig h t a ft, hanging on the inside of the foreshroud o f the port main rigging, 20ft. from the deck and 120ft. from the stern.
Under these circumstances the Gannet, a steam
ship of 1246 tons gross register, coming down the rive r on a voyage from Ham burg to London, ran into her and struck her on the starboard side, about 20ft. forw ard of the mainmast, doing con
siderable damage.
The owners of the A lgoa brought an action against the owners of the G annet fo r the damage
The owners of the A lgoa brought an action against the owners of the G annet fo r the damage