Ot. op Af p.] Py m a n St e a m s h ip Co. Li m. v. Hu l l & Ba r n s l e y Ra il w a y Co. [Ct. op Ap p. pre - existing defect in the tug. Similarly,
T a tte rs a ll v. N a tio n a l Steam ship Company L im it e d (5 Asp. Mar. Law. Cas. 206; 50 L . T.
Rep. 299; 12 Q. B. Div. 297) was a case where cattle caught foot-and-mouth disease from being placed on an infected ship which was not seaworthy for that purpose. A t the commence
ment of the voyage the ship was unfit for the purpose, and therefore the terms of the contract relied upon only related to the carriage of the goods upon the voyage, and the damage arose from the unsea worthy condition of the ship before the commencement of the voyage.
Cases of that kind were prayed in aid in support of the argument in the present case. I t seems to me they have no application to it.
Here the contract was for the use of a par
ticular dock which is described in the contract.
The shipowner was to use that dock at his own risk, and whatever the damage arose from while the vessel was in that dock, in my opinion, it is covered by clause 9, and the dock owner is exempted from liability.
I t is not a case of whether the shipowner has or has not to pay for block caps not provided in accordance with the contract. I t is not that case at all. I t is a case whether the dock company is liable for the damage to the ship by reason of not providing block caps which were suitable and of the requisite height.
In my opinion the exemption from damage is comprised in and entirely covered by clause 9, and
°n that ground the plaintiffs are not entitled to recover against the owners of the dock, and the appeal Bhould be dismissed.
Br a y, J.—I am of the same opinion.
W h at we have to do here is to construe clause 9 of the regulations having reference to the remaining clauses of the contract.
W e have had considerable argument as to what is a fundamental obligation, and as to-whether that includes cases where the liability is absolute, or where the liability is only to use reasonable
^are or all possible care. I think it is unnecessary t ° go into those considerations.
I will assume for the moment here that there was as to the graving dock, and as to the blocks, the duty, and, if you like, the absolute duty, to provide a fit dock and proper block caps put in proper position. I do not say that it is the construction of the contract, but for phe purpose of this case I am willing to assume
*t. I should, however, like to guard myself especially against saying that there was any absolute contract to provide a fit dock here,
■there was a warranty of some kind. For the Purpose of this case I assume it was as wide as Possible.
Wk'^en question which remains is this : Jihether clause 9 of the regulations is wide
?ou8h to exempt the defendants from a breach f contract in respect of that liability. The tauae begins in these words: “ The owner of a
®ssel using the graving dock must do so at his wh risk.” The words “ owner’s risk ” and the Waning of those words are now well known, par-
■cularly in the contracts of railway companies, ail way companies, in carrying goods, are under ortain obligations under the Railway and Canal cts, and they have to give a choice of two rates, h® rate is called the ordinary rate, and the other
is called the “ owner’s risk rate” ; and the owner’s risk rate covers what is meant by “ owner’s risk.”
I t means what it says. The clausejin question begins with the words I have read, and then it follows on explaining the meaning of those words, and making sure that they are to include every possible damage : “ Any accident or damage to a vessel going into or out of or whilst in the graving dock, whatever may be the nature of such accident or damage or howsoever arising.” I t is difficult to use wider words than those, and although undoubtedly we must see that the con
struction that we are proposing to put upon this clause is a clear construction, because ambiguous words are not sufficient, and the words must be clear in order tp exempt from a liability which would otherwise enure, yet it seems to me that these words are quite clear so far as regards the graving dock. Now, it is quite true that we must read the words “ graving dock ” as meaning something more than the dock itself in order to exempt the company here. I think the remaining words of the section are sufficient to show that, because the words “ any accident or damage ” follow the words that I have read. There is clause 13, which says : “ The owner of any vessel using the graving dock will be held responsible to the company should any person employed in con
nection with the vessel cut, destroy, or injure the walls, floor, or any of the blocks, machines, pitch boilers, cranes, tackle, or other appendages to the graving dock.” In my opinion, the words
“ graving dock ” in clause 9 include the graving dock and all its appendages. I do not think it is material to notice the exact position of these clauses. I cannot think that it could have been the intention of the parties that the defendants should be exempted from all liability for any defect in the dock in carrying on the business of the dock, and that, although they are exempt from that liability with regard to the dock, are yet to be liable in respect of such small things as these block caps.
In m y opinion the decision of Bailhache, J.
was right.
A ppeal dismissed.
Solicitors for the plaintiffs, B o tte re ll and Roche, for B o tte re ll, Roche, and Tem perley, West Hartlepool.
Solicitors for the defendants, D avenport, Cunliffe, and Blake, for Moss, Lowe, and Co., H ull.
MARITIME LAW CASES.
K .B . Div.J Ma t s o u k is v. Pe ie s t m a n a n d Co. [K .B . D iv .
HIGH COURT OF JUSTICE.
K IN G ’S B E N C H D IV IS IO N . Feb. 2 and 3,1915.
(Before Ba il h a c h e, J.)
Ma t s o u k is v. Pe ie s t h a n a n d Co. (a) Contract to b u ild ship— D elivery w ith in specified
time— Exceptions— Delay— Force majeuie— Via major— Coal strike— In d ire c t effect o/—Break
down of machinery.
B y an agreement in w ritin g dated the 21st Feb. 1912 the defendants agreed to b u ild a steamer fo r the p la in tiff and deliver her on or before the 28th Feb.
1913. The agreement contained (inter alia) the follow ing clause : “ I f the said steamer is not delivered entirely ready to purchaser a t the above- mentioned time, the builders hereby agree to pay to the purchaser fo r liquidated damages, and not by way of penally, the sum of 101. sterling fo r each day of delay and in reduction of the prices s tip u lated in this contract, being excepted only the cause of force majeure and (or) strikes of workmen of the bu ild in g yard where the vessel is being bu ilt, or the workshops where the machinery is being made, or at the ivorks where steel is being manufactured fo r the steamer, or any works of any sub
contractor.”
The steamer was not delivered t i l l the 22nd Aug.
1913, and in order to get delivery the p la in tiff paid under protest the f u ll price without any deduction fo r delay. Owing to the coal strike of 1912 there was a delay of seventy days and a further delay of seven days on account of a breakdown of machinery and a shipw rights' strike. There was also some delay due to bad weather, to the absence of men attending football matches, and attending the funeral of their manager. The p la in tiff claimed as damages or money had and received by the defendants to his use 17501, or 101. per day fo r everyday's delay in delivery after the 28th Feb.
1913.
Held, that the words force majeure covered the delay occasioned by the consequential results of the coal strike and also breakdown of machinery, but d id not include the other matters claimed.
C O M M E K C IA L C O U E T .
Action tried by Bailhache, J.
The plaintiff, Jean Garaseime Matsoukis, of Roumania, claimed damages for delay in the delivery of a steamship built by the defendants at their yard in Sunderland at the request of the plaintiff.
The plaintiff pleaded that, by an agreement in writing made between the Bank of Athens, as agents for the plaintiff, and the defendants, the Matter agreed to build a steamer and deliver her at Sunderland afloat and ready for sea on or before the 20th Feb. 1913. I t was provided that if the Bteamer was not delivered entirely ready at the time mentioned the defendants were to pay to the plaintiff the sum of 101. for each day of delay and in deduction of the price stipulated in the contract. He said the defendants did not deliver the steamer on the date agreed, and failed to deliver her until the 22nd Aug. 1913. The plaintiff paid the price stipulated for in the
(o )E ep o rte d by Leo n a k d O. Thomas, E sq , B a riiste r-a t-L a w .
contract without deduction in respect of the delay under protest in order to get delivery of^
the steamer, and he claimed as damages, or as money had and received, 17501., being 101. per day for every day’s delay in delivery after the 28th Feb. 1913, and, in addition, 5181. interest at 5 per cent.
B y their points of defence the defendants admitted that the steamer was not delivered until the 22nd Aug., but they denied that any breach of the agreement was committed, and that the delay was wholly due to causes within the exception clause of the contract, which was as follows:
I f th e steam er is n o t d e live re d e n tire ly re a d y to p u rchase r on o r be fore th o 2 8 th Feb. 1913, th e b u ild e rs he reby agree to pa y to tb e pu roha ser fo r liq u id a te d damages, and n e t b y w a y o f p e n a lty , th e sum o f 101. fo r each da y o f de la y, and in d e d u ctio n o f th e p ric e s tip u la te d in th is c o n tra c t, be in g exoepted o n ly the cause o f fo rce m a je ure , s trik e s o f w o rkm e n o f th e b u ild in g y a rd w here th e vessel is b e in g b u ilt, o r th e w orkshops w here th e m a ch in e ry is be in g made, o r a t th e w o rks w here steel is b e in g m a n u fa ctu re d fo r th e steam er, o r a n y w o rk s o f a n y B u b -co n tra cto r. I n case o f s trik e s o r a n y cause o f de la y, a3 above, tb e b u ild e rs are to advise im m e d ia te ly tb e pu rchase r, a n d a t th e b e g in n in g o f th e s trik e .
Among the items causing the delay were the following: Bad weather caused sixteen days’
delay, shipwrights’ strike two days, breakdown of machinery in Sunderland works three and three- quarter days, delay in supply of materials eleven days, football matches and holidays seven days, funeral of a M r. Knox one day, miners’ strike 182 days, making a grand total, according to the defendants, of 222 days.
Hudson, K .C . and D u nlo p, for the plaintiff, cited
N ic h o ls v. M a rs la n d (1876) 2 E x . D iv . 1 ;
N uge nt v. S m ith (1876) 3 A sp . M a r. L a w Cas. 198 ; 1 C. P . D iv . 423.
Roche, K.C . and Le w is Noad, for the defen
dants, cited the following cases :
Y ra su v. A s tr a l S h ip p in g C om pany (1904) 9 Com.
Cas. 100 ;
Re Lockie a n d Craggs (1901) 9 A sp. M a r. L a w Cas. 296.
Ba il h a c h e, J.— This action waB brought by M r. Matsoukis, who is a Roumanian gentleman, against Messrs. Priestman and Go., who are ship
builders in this country, on a contract to build a ship, which is dated the 21st Feb. 1912. The action was tried before myself and a City of London special jury, and there was one question of fact left to them. I t waB th is : Assuming that M r. Priestman was entitled to an allowance for the delay occasioned indirectly by the Welsh coal strike,. how much time ought he to ba allowed in respect of this ?
The jury found in respect of this he should be allowed seventy days. The total amount of the delay was 175 days; seventy from 175 leaves 105. H e was to be liable for this in any case, but for the fact that there were two other exceptions, in respect of which I think he is entitled to time. This is in respect of the ship
wrights’ strike and breakdown of machinery.
Allowing seven days for this, this would bring the total amount which was due to 9801. A question of interest has been agreed between the
MARITIME LAW CASES.
6 9K.B. Drv.]
Ma t s o d x is r . Pe ie s t m a n a n d Co. [K.B. Div.parties at 20l., and this is the only question which has been agreed between the parties.
The only question about which I have found a great deal of difficulty in the case is whether the consequential result of the Welsh coal strike, which, according to the verdict of the jury, delayed the vessel by seventy days, can be said to be covered by exceptions in the contract.
The contract is to deliver the Bhip on the 28th Feb.
1913, and unless M r. Priestman can bring this Welsh coal strike within the exceptions, then he is not entitled to the allowance of the seventy days which the jury by their finding have given him.
The question turns upon the construction of the contract. The contract says that if the steamer is not delivered on the due date, the plaintiff agrees to be paid as liquidated damages 10Z. a day in deduction of the price stipulated in the contract.
Then comes the clause, which is written in English, it is true, but obviously by a gentleman who is not fam iliar with English idiom, but, still, it is plain enough. I t goes on to except the cause of force m ajeure, strikes of workmen in building yard where the ship is being built, or in the machinery shops, or works of sub-contrac
tors ; and the question is, what is the meaning of the words force m ajeure in the contract.
M r. Hudson has argued for the plaintiff that the words force m ajeure can never in any circum
stances cover the strike or consequence of a strike, and that in particular they cannot do it in this case because, if I take the whole of the clause and read it together, I ought to find that strikes are a special cause of exception, and that I ought i? these strikes are excluded by the fact that strikes are specifically referred to in the clause.
M y own opinion about the matter has fluctuated a great deal in the case, although the clause as it 8tands seems simple enough. The words force m ajeure are not words which are appropriate to an English contract, and they are not common in au English contract. They are taken from the yode of Napoleon, and they were inserted in this contract by a Roumanian gentleman or by his advisers, who no doubt were fam iliar with the words as used in the Code of Napoleon and as used on the Continent. W e have had the opinion
knowledge everybody was expecting that such a disaster as a national strike would be avoided.
f ™ ' ~ », o m u lu« opinion ci a Belgian lawyer, and he says the words as understood in Belgium and on the Continent .«can a cause you cannot prevent or avoid and for
which you are not responsible.
M r. Hudson argued that the words practically
™eant the same as vis m ajor, which in substance
™eans very nearly the same as act of God. In 7 construction of the words I am influenced
° Botne extent by the fact that they were nserted by this foreign gentleman, who was miliar with the meaning of the words upon tbo Continent.
B ut J am not sure that on this account I should th en*;‘Bed or bound to give them the full meaning atf^ uave on the Continent. I am not going to tempt to give any definition of the words force
^ ajeure. But I am quite satisfied I ought to give cm a meaning which is more extensive than the yeaning we give to the words “ act of God,” or can ^ 0r<^8 vis m ajor. The trouble is how much Was . extend tll.e meaning ? I think the strike a , anticipated in this sense, that it was obvious nke might take place, although it was common
The strike took place.
The result was that, aB far as M r. PriestmaD was concerned, the yards from which he had con
tracted to get his materials for other ships, not this one, got very much behindhand in their supplies. We all know that shipbuilding in ship
yards can only be done upon certain ways or berths, and M r. Priestman had four berths, but had other ships to build besides this, and he had in contemplation to build this ship in berth No. 2, after another ship numbered No. 239.
The result of the coal strike, and his inability to obtain materials and coal, was th is : Ship No. 239 occupied the berth for a great deal longer than it otherwise would have done. The result was that the berth was detained, and that the plaintiff’s ship could not be laid down in the berth until some time in October. As a matter of fact, it was not laid down until December. Now, could, under such circumstances, the delay be described as coming under the words fo rc e m ajeure if it had been a direct result of the coal strike P
The delay was caused by the general dislocation not only in all of M r. Priestman’s business, but all businesses in the North of England, such as that of makers of steel plates and things of this kind, and a general dislocation of the whole businesses in the North of England. In my opinion— although, as I say, my opinion has fluctuated from time to time during the arguments in the case—I think I should be right in saying, justified in saying, that, under the circumstances, this strike constituted a case of force m ajeure.
I f I were to give the words force m ajeure the full meaning which the Belgian gentleman said they had on the contract, there would be no doubt about it at all. I think the events which hap
pened, this calamity of a universal coal strike, could completely dislocate all the businesses in the North, and so, by delaying the building of the ship in front of the plaintiff’s ship, could come within the reasonable meaning of the words force m ajeure.
1 think, therefore, M r. Priestman to this extent is absolved from delay. This delay did not operate directly on the plaintiff’s ship, and if it had been a case of building a ship which is to be built at a berth in turn, I should have had great doubt whether the words fo rc e m ajeure could be held to apply to a case of this kind. But, having regard to the way in which the ship was built and to the berthing, and to M r. Priestman’s right to carry on his business that way, I think I am justified in holding that the defendants are entitled to be absolved.
Then M r. Priestman wanted an allowance in
Then M r. Priestman wanted an allowance in