v.

LINE

1905 The presence of the hard substance in the sea-cock, and the MCFADDEN consequent incursion of the sea-water through it, was an ordiBLUE STAR nary" peril of the sea." Further, the defects in the packing of the valve-chest and in the closing of the sluice-door were "accidents of navigation." In The Southgate (1), where the defendants' engineer improperly left open a circulating-pump delivery-valve in the side of the ship whereby a quantity of sea-water entered the ship and damaged the cargo whilst the ship was lying at her moorings engaged in loading, Gorell Barnes J. expressed a strong opinion, though he declined to decide the point, that the damage was an accident of navigation. So, too, in The Carron Park (2), where the cargo was damaged whilst the ship was still loading by water which came through a valve negligently left open by the shipowners' servants, it was held that the damage came within an exception by which the shipowners were not to be responsible for any neglect or default of their servants "during the voyage." So in The Glenochil (3) it was held that the exception in the Harter Act of "faults or errors in the management of the vessel" was not limited to the period during which the vessel was at sea.

Bailhache, in reply. The extent of the obligation which the shipowner undertakes, under the implied warranty of fitness to receive the cargo, is not cut down by the incorporation of the provisions of the Harter Act in the bill of lading. It has been held in America that neither the provisions of s. 2 of that Act, which prohibit the shipowner from inserting in his bills of lading a clause exempting him from the obligation to use due diligence to make the vessel seaworthy, nor those of s. 3, which exempt him from loss resulting from faults or errors in navigation or in the management of the ship if he has exercised due diligence to make her seaworthy, raise any implication that the law has relieved him from the duty of furnishing a seaworthy ship: The Carib Prince. (4) But if the Court is disinclined to follow that decision, and if the incorporation of the Harter Act is to be treated as limiting the defendants' duty to the exercise of due diligence, here due diligence was not in fact exercised. The

(1) [1893] P. 329.

(2) (1890) 15 P. D. 203.

(3) [1896] P. 10.

(4) (1898) 170 U. S. 655.

1905

ข. BLUE STAR LINE.

fact that the packing of the valve-chest was forced out, without any extraordinary pressure and after the joint had been made MCFADDEN but a short time, points to the conclusion that it must have been carelessly made at the outset. And to satisfy the provisions of that Act it is necessary to shew, not merely that the shipowner has personally exercised due diligence, but that his servants have done so also: Dobell v. Steamship Rossmore Co. (1) There was also negligence in not fitting down the sluicedoor properly. Under these circumstances it becomes unnecessary to consider whether the facts of the case come within any of the exceptions of the bill of lading.

CHANNELL J. I have to consider whether upon the facts of this case the shipowners are responsible for the damage to the plaintiff's cotton. Mr. Bailhache rests his case upon a breach of the implied warranty of seaworthiness, or rather of the implied warranty that the vessel is fit for the reception of the goods and for carrying them upon the voyage in question. Now I think it is clear that, apart from the Harter Act, that warranty is an absolute warranty; that is to say, if the ship is in fact unfit at the time when the warranty begins, it does not matter that its unfitness is due to some latent defect which the shipowner does not know of, and it is no excuse for the existence of such a defect that he used his best endeavours to make the ship as good as it could be made. And there is also another matter which seems to me to be equally clear-that the warranty of seaworthiness in the ordinary sense of that term, the warranty, that is, that the ship is fit to encounter the ordinary perils of the voyage, is a warranty only as to the condition of the vessel at a particular time, namely, the time of sailing; it is not a continuing warranty, in the sense of a warranty that she shall continue fit during the voyage. If anything happens whereby the goods are damaged during the voyage, the shipowner is liable because he is an insurer except in the event of the damage happening from some cause in respect of which he is protected by the exceptions in his bill of lading. His liability for anything happening after the ship has sailed depends, not (1) [1895] 2 Q. B. 408.

1905

v.

BLUE STAR
LINE.

Channell J.

upon there being a breach of a warranty that the ship shall MCFADDEN Continue fit, but upon his position as carrier. So, too, it is clear that the warranty of the ship being fit to encounter the perils of the voyage does not attach before she sails and while she is still loading her cargo. There is, of course, no warranty at the time the goods are put on board that the ship is then ready to start on her voyage; for while she is still loading there may be many things requiring to be done before she is ready to sail. The ordinary warranty of seaworthiness, then, does not take effect before the ship is ready to sail, nor does it continue to take effect after she has sailed: it takes effect at the time of sailing, and at the time of sailing alone. But Mr. Bailhache contends that the warranty with which we are here concerned, namely, that the ship was fit to receive the goods, differs in this respect from the warranty of fitness to encounter the perils of the voyage: he says that it is a continuing warranty, meaning thereby a warranty that the ship shall continue fit throughout the period of loading. Now there is very little authority about the warranty of fitness to receive the cargo; but when one comes to consider it as a matter of principle, I do not think there is much difficulty about it. In my opinion one must apply the rule which one would have to apply to the warranty of seaworthiness when the voyage is in stages. When a voyage is in stages the warranty is that the ship on starting on each particular stage is fit for that stage. Thus, if she is going to stop at an intermediate port, she must have sufficient coals to take her to that port, but she is not bound to have sufficient coals to take her the whole voyage. It is treated as a separate warranty for each stage of the voyage. I think one must apply exactly the same rule to the loading stage of a vessel whilst she remains in her port of loading. I think the warranty is that at the time the goods are put on board she is fit to receive them and to encounter the ordinary perils that are likely to arise during the loading stage; but that there is no continuing warranty after the goods are once on board that the ship shall continue fit to hold the goods during that stage and until she is ready to go to sea, notwithstanding any accident that may

v.

BLUE STAR

LINE.

Channell J.

happen to her in the meantime. And the reason for so 1905 holding is precisely the same as that which exists with respect MCFADDEN to the warranty of fitness to encounter the perils of the voyage; as soon as the goods are on board they are in the custody of the carrier, and he is liable for any accident which then happens because he is an insurer of them unless he is protected by some clause in his bill of lading. In that view of the matter, then, I proceed to consider whether the facts of the present case shew a breach of the warranty of fitness to receive the cargo. If there was such a breach, I think it is clear that the exceptions in the bill of lading would not apply to exempt the defendants from liability; for primâ facie words of exception are intended to exempt the shipowner only from his liability as a carrier, and not to affect the warranty that would otherwise be implied. An intention to exclude the warranty must be indicated by express words, and there are no such express words here. Now it is suggested by the plaintiff that there was a breach of the warranty in respect of each of the three apertures through which the water came. The sluicedoor in the bulkhead was left insufficiently screwed down, and if it had been left in that condition before the goods were loaded I think that that fact would have amounted to a breach of the warranty; for it was an aperture which in the ordinary state of things ought to have been closed except when it was being used, and it was imperfectly closed. It was not obviously left open, and was consequently a source of danger. Thus it is a breach of warranty of seaworthiness to go to sea with a porthole which is improperly closed but is believed to be closed, and which is in such a position that the defect cannot be remedied immediately and in time to prevent the damage being done: Dobell v. Steamship Rossmore Co. (1) But here the opening and imperfect closing of the sluice-door only took place the day before the damage happened, and long after the goods were on board. Therefore, in my opinion, it cannot amount to a breach of the warranty as I have interpreted it. The same observations apply to the insufficiently closed seacock. It was intended to be closed and was apparently closed, (1) [1895] 2 Q. B. 408.

V.

BLUE STAR

LINE.

Channell J.

1905 and was consequently in a dangerous condition. But that MCFADDEN state of things also was brought about after the goods were on board, and consequently was not a breach of the warranty. Then we come to the defective packing of the valve-chest. It may be that that is a defect which points to a certain amount of negligence on the part of the man who packed the joint, but it is immaterial for the present purpose to consider whether there was negligence or not, for, as I have already said, the warranty is, apart from any consideration of the Harter Act, an absolute warranty. The result shews that in fact there was a defect, in the sense that the packing was not as good as it ought to have been. It resisted the pressure during the three hours that the tank was being hardened up, but was insufficient to resist the subsequent pressure. That defect, unlike those in the sluice-door and the sea-cock, existed before the plaintiff's goods were loaded. Whether a particular defect is sufficiently substantial to amount to a breach of the warranty must in all cases be a question of fact; but it is a question of fact which must be determined by certain rules. And the rule applicable to the present case is, I think, correctly stated in a passage in Carver on Carriage by Sea, s. 18, where it is said that a vessel "must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it. To that extent the shipowner, as we have seen, undertakes absolutely that she is fit, and ignorance is no excuse. If the defect existed, the question to be put is, Would a prudent owner have required that it should be made good before sending his ship to sea had he known of it? If he would, the ship was not seaworthy within the meaning of the undertaking." Applying that to this case, I cannot doubt that any prudent owner, if he had known that the joint would not resist something more than a three hours' pressure, would have at once ordered the joint to be remade. Therefore, it seems to me that I must hold that the defect was a substantial one, and that as it existed before and at the time of the loading of the goods it amounted to a breach of the warranty, unless the incorporation of the Harter Act in the bill