ICLR: Appeal Cases/1956/ESSO PETROLEUM CO. LTD.

APPELLANTS; AND SOUTHPORT

CORPORATION RESPONDENTS. - [1956] A.C. 218

[1956] A.C. 218

[HOUSE OF LORDS.]

ESSO PETROLEUM CO. LTD. APPELLANTS; AND SOUTHPORT CORPORATION

RESPONDENTS.

1955 Oct. 17, 18; Dec. 12.

EARL JOWITT, LORD NORMAND, LORD MORTON OF HENRYTON, LORD RADCLIFFE and LORD
TUCKER.

Shipping - Collision, etc. - Stranding - Public navigable river - Ship refloated by jettison of oil - Damage
to foreshore by oil - Action by foreshore owners against shipowners - Claim based on trespass,
nuisance and negligence of owner's servants - Suggestion of faulty steering gear made at trial - Not
pleaded - Res ipsa loquitur - Onus of proof.

Shipping - Nuisance. Negligence - Onus of proof - Res ipsa loquitur. Trespass - Indirect act. Nuisance.
Practice - Pleadings - Omission - Reliance on, not pedantry. Admiralty - Assessor - Shipping - Admiralty
question in Queen's Bench Division - Need for assessor. Practice - Assessor.

An oil tanker was stranded in a river estuary and, to prevent her breaking her back, the master
jettisoned 400 tons of her oil cargo which the tide carried to a foreshore, occasioning damage.
[1956] A.C. 218 Page 219

The foreshore owners brought against the shipowners an action based on trespass, nuisance and
negligence, alleging that the stranding was caused by faulty navigation; the defence denied negligence.
At the hearing the shipowners' case was that the stranding was due to the tanker's stern frame being
cracked so that the steering gear was faulty, but they called no evidence to show how this condition
was caused. The trial judge held that they were not negligent as alleged in the statement of claim and
that the foreshore owners were not entitled to succeed either in nuisance, trespass or negligence. The
Court of Appeal held that the doctrine of res ipsa loquitur applied, and that the onus was on the
shipowners to explain why the steering gear went wrong and that, as they had not done so, they were
liable in negligence. On appeal to the House of Lords it appeared to be common ground that there
would be a good defence in any event unless negligence was established:-

Held, that since every allegation in the statement of claim was rightly decided by the trial judge in a
sense adverse to the foreshore owners, who had made no allegation of unseaworthiness, the
shipowners could not be held responsible because they did not negative a possible case which was not
alleged against them in the pleadings.

The Merchant Prince [1892] P. 179; 8 T.L.R. 430 distinguished.

Per Lord Radcliffe. I share the view of Denning L.J. that the shipowners were not responsible for a
private nuisance in any ordinary sense.

Semble, per Lord Radcliffe and Lord Tucker, trespass did not lie at all on these facts.

Decision of the Court of Appeal (sub nom. Southport Corporation v. Esso Petroleum. Co. Ltd. [1954] 2
Q.B. 182; [1954] 2 All E.R. 561) reversed.

APPEAL from the Court of Appeal (Singleton and Denning L.JJ., Morris L.J. dissenting).

This was an appeal by the appellant company, Esso Petroleum Co. Ltd., from an order of the
Court of Appeal dated June 3, 1954, which set aside a judgment of Devlin J. in its favour and
directed that judgment be entered for the respondents, the Southport Corporation, for an
amount of damages to be ascertained by the registrar of the Liverpool District Registry, with
costs in respect of damage by oil to the foreshore at Southport in the Ribble estuary.

The facts, stated by Earl Jowitt and Lord Morton of Henryton, were as follows: The action was
brought by the respondents, the owners of the foreshore, against the appellants, the owners of
the S.S. Inverpool, and against George McMeakin, her master, in respect of the damage
occasioned to the foreshore by the discharge of a quantity of oil from the Inverpool. Devlin J.,
after hearing the evidence, delivered judgment for the then defendants, the present
appellants, and Mr. McMeakin.
[1956] A.C. 218 Page 220

The Court of Appeal dismissed the appeal so far as Mr. McMeakin was concerned; and that
part of the decision of the Court of Appeal was not the subject of an appeal to the House of
Lords. The Court of Appeal allowed the appeal, giving judgment against the present
appellants.

The Inverpool was a small tanker of 680 tons gross. Her master and chief engineer were
experienced seamen, and she carried a crew of 11 hands all told. On December 3, 1950, she
left Liverpool at 7.30 a.m. on a voyage to Preston. She arrived at the Nelson Buoy at the
entrance to the Ribble estuary at 11.40 a.m. and waited there for the tide, high water at
Preston being at 5.17 p.m. She left the Nelson Buoy at 2.30 p.m. and made for the buoyed
channel. The wind was N.N.W. force 7 or 8, and the sea was moderately rough. Shortly after
leaving the Nelson Buoy she shipped some very heavy seas; and for some unexplained
reason her steering thereafter became erratic and she began sheering four or five points to
starboard and to port. The master decided, notwithstanding his knowledge of the defective
steering, to continue on his course towards Preston, although this involved the navigation of a
comparatively narrow and shallow channel.

On the south side of the channel there was a revetment wall about seven or eight feet wide
and about three to six feet above datum. When the Inverpool had passed Salter's Buoy she
took a heavy sheer to starboard and ran aground on the revetment wall. She was lying in a
dangerous position, and was in danger of breaking her back. The safety of the ship was at
stake and the lives of her crew were in peril. The engines were put full astern, but it was found
that the propeller was fouling some hard object, and the chief engineer feared that the main
steam pipe might fracture. This was reported to the master, who ordered the engineer to stop
the engines.

In those circumstances the master decided to discharge considerable quantities of the cargo
of oil to lighten the ship. The oil so discharged was carried by the action of the wind and tide
on to the premises of the Southport Corporation, the respondents to this appeal. They were
put to considerable expense in cleaning their premises from the oily discharge and brought
their action against the appellants, the owners of the Inverpool, and against her master to
recover such expenses.

By paragraph 1 of their statement of claim the respondents alleged that they were the owners
and occupiers of the foreshore
[1956] A.C. 218 Page 221

and the marine lake situate on part thereof in Southport; that the appellants were at all
material times the owners and had the management and control of the oil tanker Inverpool,
and that the second-named defendant (McMeakin) was at all material times the master of the
said tanker and the servant or agent of the appellants.

Paragraph 2 was as follows: "In the afternoon of December 3, 1950, the said oil tanker was
proceeding under the management, control and command of the second-named defendant
into the channel or estuary of the River Ribble with a cargo of about 850 tons of oil, when
owing to the negligent navigation, management and control of the said oil tanker, by the said
defendant, the said oil tanker struck the revetment wall on the southerly side of the said
channel and grounded on a sandbank behind the said wall, and after striking the said
revetment wall the said defendant caused approximately 400 tons of the said cargo of oil to be
discharged overboard from the said oil tanker into the waters of the said channel or estuary.
The oil so discharged became deposited on the said foreshore and in the said marine lake
and thereby caused damage to and created a trespass and/or nuisance upon the said
foreshore and marine lake, and the plaintiffs thereby sustained damage.

"Particulars.

"The second-named defendant was negligent in the navigation, management and control of the said
 oil tanker in that:- ..."

There followed particulars of alleged negligence of the master, and paragraph 3 of the
statement of claim continued as follows: "By reason of the said negligence in the navigation,
management and control of the said oil tanker and the acts and defaults hereinbefore
mentioned and the wrongful discharge of the said oil from the said tanker into the waters of
the channels or estuary of the said River Ribble, the said oil lodged and settled on the said
foreshore and in the said marine lake, and the plaintiffs have incurred much expense in the
removal and clearing and endeavour to remove and clear the said foreshore and marine lake
of the said oil and the reinstatement of the plaintiffs' said property to its former condition, and
have suffered loss and damage."

Particulars of the sum so expended by the respondents were then set out, and the claims
were for "(1) damages in respect of
[1956] A.C. 218 Page 222

such expense, loss and damage by reason of the matters aforesaid; (2) such further and other
relief as in the circumstances the court may see fit to award."

The appellants by their defence denied the alleged negligence, trespass, nuisance and
damage, and then set out fully their account of the events leading up to the discharge of oil
from the tanker - an account which was in substance accepted by Devlin J. The defence
ended with the following allegation: "In the premises it was necessary to discharge oil from the
Inverpool in order to protect the vessel and the lives of those on board her and such discharge
was carried out without negligence on the part of those on board the Inverpool."

On May 26, 1953, the appellants asked for further and better particulars of the statement of
claim. These were supplied on June 13, 1953. By that date the respondents had seen the
master's report. They knew that the steering of the Inverpool had become very erratic and
they knew also that when the vessel was examined, after the events of December 3, 1950, it
was found that there was a fracture of the stern frame and serious damage to the rudder; the
propeller had one blade broken off and three blades broken at the top. These facts were set
out in the particulars delivered on June 13, 1953, and the following sub-paragraph was added
by amendment to paragraph 2 of the statement of claim: "a. The said oil tanker was caused to
be navigated into and enter the said channel when the steering of the said oil tanker was
erratic and steering badly and when the helm could not be got over and was slow to move and
when having regard to these conditions it was dangerous to enter the said channel."

DEVLIN J. gave a reserved judgment, on October 28, 1953, as follows: In this case questions
of seamanship and navigation arise and, acting under the Judicature Act, 1925, s. 98, and
R.S.C., Ord. 36, r. 43, I have appointed one of the Elder Brethren of Trinity House to act as an
assessor and to advise me upon them. In Waddle v. Wallsend Shipping Co. Ltd.1 I called
attention to what seemed to me to be the undesirability of having questions of this sort tried by
a judge of the Queen's Bench Division sitting without assistance. The practice of sitting with
the Elder Brethren is always followed in the Admiralty Division, and if it is not followed in this
Division as well it is bound to lead to the belief that the result will not be as satisfactory as it

1 [1952] 2 Lloyd's Rep. 105, 131.

[1956] A.C. 218 Page 223

should be. I have therefore been advised by an Elder Brother, Commodore Hubbard, R.D.,
R.N.R., before arriving at my conclusions in this case, but I have not had his assistance during
the hearing. I hesitated in this case, as I did in Waddle v. Wallsend Shipping Co. Ltd.,1 to
adjourn the trial so that an assessor might be present because of the inconvenience to the
parties and their solicitors and counsel. But I doubt whether I shall in any similar case in the
future allow these considerations to deter me again.

The case concerns a small tanker called the Inverpool, belonging to the defendant company,
which stranded in the Ribble estuary on December 3, 1950; and the master, in order to refloat
her, discharged about 400 tons of fuel oil. The oil became deposited on the foreshore, which
belongs to the plaintiffs, the Southport Corporation, and entered the marine lake, a feature of
the foreshore. [His Lordship referred to the extent of the deposit and continued:] It became
necessary to close the marine lake for a time and also parts of the foreshore, and it has cost,
or will cost, the corporation a substantial sum to make good the damage.

The deposit of oil around the coast is, it is admitted, causing considerable anxiety, and it is
satisfactory to know that the authorities are not being inactive. At first sight, it may appear to
be unreasonable that shipowners whose servants cause such damage in order to save their
own property should not automatically have to pay for it. But Mr. Nelson, for the defendants,
submits that at common law there is no duty at all upon ships to avoid this type of damage. If
Parliament considers that further legislation is necessary for the protection of the public, no
doubt such legislation will be enacted. My duty is to apply the common law, and to examine
therefore the causes of action upon which the plaintiffs rely. These are trespass, nuisance and
negligence. The trespass, alternatively the nuisance, is said to arise from the bare fact that oil
was discharged on to the plaintiffs' property. The negligence is put under two heads: first, that
there was negligent navigation resulting in the stranding, and secondly, that it was
unreasonable and unnecessary after the stranding to jettison cargo. The charge of negligent
navigation rests, in the first instance, upon the fact of stranding, which obviously calls for an
explanation. The master's explanation is that it was due to a defect in the steering. The
plaintiffs contend that if this is true the defendants must show that the defect steering was not
their fault, and further, they say that
 1 [1952] 2 Lloyd's Rep. 105, 131.

[1956] A.C. 218 Page 224

with defective steering the vessel ought not to have entered the estuary.

Mr. Nelson disputes that there is any cause of action at all. It is not trespass, he says, because
there is no direct physical interference with the property of the plaintiffs. It is not a public
nuisance because the plaintiffs have suffered, not as members of the public, but as owners of
property. It is not a private nuisance because the oil did not emanate from an adjoining
property. It is not negligence because no duty was owed to the plaintiffs. If it was careless on
the part of the Inverpool to enter the estuary of the Ribble, it was not a foreseeable
consequence of that carelessness that she might strand and have to discharge oil which
would be carried by the wind and tide to the Southport foreshore. Thus Mr. Nelson argues that
the plaintiffs have not on any possible view of the facts any case at all. If they have a case in
trespass or nuisance, he submits a twofold defence. The first is that the plaintiffs enjoy their
property subject to the right of members of the public to navigate upon the seas, and they
cannot therefore complain of damage which is done to their property in the exercise without
carelessness of that right. Secondly, he relies upon the defence of necessity: in discharging
the cargo the ship, he contends, was doing no more than was reasonably necessary for the
safety of the crew and of the ship and cargo.

I think that it is convenient to begin by considering whether there is a cause of action in

nuisance. It is clear that to give a cause of action for private nuisance the matter complained
of must affect the property of the plaintiffs. But I know of no principle that it must emanate from
land belonging to the defendant. Mr. Nelson cited Cunard v. Antifyre Ltd.2 and I think that the
statement of the principle is put there as clearly and concisely as it can be. Talbot J. said3:
"Private nuisances, at least in the vast majority of cases, are interferences for a substantial
length of time by owners or occupiers of property with the use or enjoyment of neighbouring
property; and it would manifestly be inconvenient and unreasonable if the right to complain of
such interference extended beyond the occupier, or (in case of injury to the reversion) the
owner, of such neighbouring property." It is clear from that statement of principle that the
nuisance must affect the property of the plaintiff; and it is true that in the vast majority of cases
it is likely to emanate

2 [1933] 1 K.B. 551; 49 T.L.R. 184.

3 [1933] 1 K.B. 557.

 [1956] A.C. 218 Page 225

from the neighbouring property of the defendant. But no statement of principle has been cited
to me to show that the latter is a prerequisite to a cause of action; and I can see no reason
why, if land or water belonging to the public, or waste land, is misused by the defendant, or if
the defendant as a licensee or trespasser misuses someone else's land, he should not be
liable for the creation of a nuisance in the same way as an adjoining occupier would be.

The plaintiffs rely on Smith v. Great Western Railway Co.4 as showing that oil emanating from
a chattel is sufficient to establish a cause of action in nuisance. It may well be that if the
nuisance emanates from the highway, whether it be a road or a waterway, the action is
properly laid for a public nuisance. In Benjamin v. Storr5 the plaintiff was given relief because
his light was blocked by vans standing in the highway outside his property and his property
affected by offensive smells from their dung. The channel which leads through the Ribble
estuary to the port of Preston is admittedly a public navigable river, and the nuisance in this
case emanated from there. I do not think that it matters that the navigable river does not adjoin
the property of the plaintiffs. An action for a public nuisance of this type cannot in principle
depend upon contiguity to the highway; it must depend upon whether the plaintiffs' property is
sufficiently proximate to the highway to be affected by the misuse of it.

I have considered nuisance first because it is a wider class than trespass. If there is an
unlawful interference with the plaintiffs' property, the question whether it is a trespass or a
nuisance depends upon whether or not it is a direct physical interference. I incline to the view
that in this case it is; but having regard to the views which I have expressed about nuisance I
think that it is unnecessary to enter into this matter, which is not covered exactly by precedent.
It may well be that it is one of those cases which are described in the books as a nuisance of a
particular kind analogous to trespass: see Jones v. Llanrwst Urban District Council,6 per
Parker J., and Nicholls v. Ely Beet Sugar Factory,7 per Farwell J.

In my judgment the plaintiffs have a good cause of action in trespass or nuisance subject to
the special defences raised by the defendants which I shall next consider.

On the first of these, if one seeks an analogy from traffic on land, it is well established that
persons whose property adjoins

4 (1926) 42 T.L.R. 391.

5 (1874) L.R. 9 C.P. 400.

 6 [1911] 1 Ch. 393, 402.

7 [1931] 2 Ch. 84, 87.

[1956] A.C. 218 Page 226

the highway cannot complain of damage done by persons using the highway unless it is done
negligently: Goodwyn (Goodwin) v. Cheveley,8 Tillett v. Ward9 and Gayler & Pope Ltd. v. B.
Davies & Son Ltd.10 These cases amplify the principle in Holmes v. Mather,11 which dealt
with collisions on the highway itself and which is the foundation of the modern practice
whereby a plaintiff in a running-down action sues for negligence and not for trespass to the
person. I know of no case in which the same principle has in terms been applied to collisions
in public navigable waters; but clearly it is so applied, for a plaintiff would not get very far in an
Admiralty action if he sued for trespass to a chattel. This suggests that the amplification of the
principle ought likewise to be applied in the case of property adjacent to public navigable
waters. Again, I know of no case which on its facts decides that in terms, though there are
dicta in The Swift12 - a rather different type of case - on which Mr. Nelson properly relied.

But there is hardly need to search for exact authority, for the point is covered by two dicta,
which may be obiter but which bear the great authority of Lord Blackburn and which lay down
the same rule on land and water. In Fletcher v. Rylands13 Blackburn J. said: "Traffic on the
highways, whether by land or sea, cannot be conducted without exposing those whose
persons or property are near it to some inevitable risk; and that being so, those who go on the
highway, or have their property adjacent to it, may well be held to do so subject to their taking
upon themselves the risk of injury from that inevitable danger." The judge then went on to say
that such persons could not recover "without proof of want of care or skill occasioning the
accident." In River Wear Commissioners v. Adamson14 Lord Blackburn said: "My Lords, the
common law is, I think, as follows:- property adjoining to a spot on which the public have a
right to carry on traffic is liable to be injured by that traffic. In this respect there is no difference
between a shop, the railings or windows of which may be broken by a carriage on the road,
and a pier adjoining to a harbour or a navigable river or the sea, which is liable to be injured by
a ship. In either case the owner of the injured property must bear his own loss, unless he can
establish that some other person is in fault, and liable to make it good."

8 (1859) 28 L.J.Ex. 298.

 9 (1882) 10 Q.B.D. 17.

10 [1924] 2 K.B. 75; 40 T.L.R. 591.

11 (1875) L.R. 10 Ex. 261.

12 [1901] P. 168, 173; 17 T.L.R. 400.

13 (1866) L.R. 1 Ex. 265, 286.

14 (1877) 2 App.Cas. 743, 767.

[1956] A.C. 218 Page 227

Lord Blackburn refers to injury by a ship. The principle is not, in my judgment, restricted to
direct injury, as when a ship strikes a pier, but is equally applicable to injury which is done
indirectly by a ship in the ordinary course of navigation. It covers injury done as the result of
the discharge of oil, if the discharge is a prudent measure of safety taken by the master of the
ship because of the vessel finding herself in distress without her fault. The Oil in Navigable
Waters Act, 1922, is not directly in point because it applies only to criminal offences, but it is
interesting to observe the test there laid down. Prima facie, it is an offence under the Act to
discharge oil in territorial waters; but it is a good defence if it was necessary to discharge the
oil by reason of the happening to the vessel of some accident. I think that the same test is
under the common law applicable in the case of civil proceedings; and that owners whose
property adjoins the sea, equally with owners whose property adjoins the highway, take the
risk of damage being done by users of the sea or of the highway who are exercising with due
care their rights of navigation or of passage. To the word "adjoin" I give the interpretation I
have already considered, i.e., the test is proximity and not contiguity.

Upon this view of the law it is unnecessary for me to consider in detail the alternative defence
of necessity, which is in some respects only a variant of the defence which I have already
considered. One of the earliest cases of necessity, Mouse's Case,15 was a case of jettison.
But the defence of necessity applies irrespective of the situation of the property damaged and
so of the principle I have just considered; on the other hand, I am not satisfied that it applies
(as it does under the principle I have just considered) if the only object whose salvation is at
stake is a ship. I am not prepared to hold without further consideration that a man is entitled to
damage the property of another without compensating him merely because the infliction of
such damage is necessary in order to save his own property. I doubt whether the court in such
circumstances can be asked to evaluate the relation of the damage done to the property
saved, by inquiring. for example, whether it is permissible to do £5,000 worth of damage to a
third party in order to save property worth £10,000. In the ordinary case of jettison the property
which is sacrificed is the property of a person who is interested in the venture, and an
equitable adjustment is made by the application of general averge. The same considerations
may not apply to the property

15 (1608) 12 Co.Rep. 63.

[1956] A.C. 218 Page 228

of a third party who has no stake in the venture which is being saved.

The defence of necessity would therefore have called for close examination if in fact it had
been based solely on the saving of property and if in law I had thought that the plaintiffs' rights
of ownership in the foreshore were unqualified by their proximity to the sea. But apart from the
law, on which I have already expressed my view, the facts of this case, when examined, show
that the peril said to justify the discharge of the cargo is that the ship was in imminent danger
of breaking her back. The consequence of that would be not merely that the ship herself would
become a total loss, but that in the circumstances of this case the lives of the crew would have
been endangered. The safety of human lives belongs to a different scale of values from the
safety of property. The two are beyond comparison and the necessity for saving life has at all
times been considered a proper ground for inflicting such damage as may be necessary upon
another's property. I think, therefore, that if I am wrong in the application of the principle which
I have taken from Lord Blackburn, the defence in this case can equally well be put on the
ground of necessity.

It is, of course, an answer to either of these defences if the predicament in which the ship
found herself was due to her own negligence. Indeed, in the principle I am applying it is
necessary, as Lord Blackburn said, for the plaintiffs to prove negligence, and so my
examination of the law results in the conclusion that this action is to be treated in the same
way as any running-down or collision case in which the plaintiff alleges negligence. I do not
accept Mr. Nelson's submission that if the master was careless, nevertheless he could not
have anticipated this form of injury to the plaintiffs' property. The damage and nuisance that is
caused to the coast by oil on the water is well known. If done deliberately, it is punishable by
statute, and I think that that is a matter which should be well in the mind of the master of every
coastal tanker. He must be aware that if in an estuary he gets himself into a position where he
has to jettison oil, it is very likely to reach some part of the coast. In this case the master
accepted the likelihood of the oil reaching the Southport foreshore.

In saying that this case has to be treated as an ordinary case where negligence is alleged, I
must make one qualification. The plaintiffs allege on the authority of The Merchant Prince16
that the circumstances in which the stranding occurred shift the
 16 [1892] P. 179; 8 T.L.R. 430.

[1956] A.C. 218 Page 229

burden of proof and require the defendants to prove inevitable accident. It will be more
convenient to deal with this after the facts have been ascertained. [His Lordship stated the
facts and continued:] I turn back now to consider the matters in dispute. The charges that the
master ought not to have entered the channel or to have jettisoned after stranding cause me
little difficulty, and I can deal with them both broadly by saying that I see no reason to criticize
the decisions of the man on the spot and certainly none to condemn them as evidencing his
incompetence. The plaintiffs contend that the master, knowing before he entered the channel
that there was something wrong with his steering, ought to have anchored or turned about and
hove to or put back to sea. The master answered that in the weather at the time, to anchor
was impossible and to turn about more dangerous than to proceed. He recognized the danger
of proceeding into a narrow channel with defective steering gear; he weighed up the two evils,
he said, and considered that the lesser of the two was to attempt to get into sheltered water. I
should not without assistance be able to say whether the master made the right choice or not,
but I should feel able to say that his choice was not a careless or unskilful one, which would
be enough to dispose of the charge of negligence. In fact, the Elder Brother advises me that in
his opinion the master's decision was the right one, and I accept that advice. As to the
jettisoning, I consider, and the Elder Brother agrees with this, that the master's decision to
lighten his vessel cannot fairly be criticized.

The remaining point is much more difficult, because it has not proved possible to arrive at any
clear conclusion as to what caused the defect in steering. It remains, the master said, a puzzle
and a mystery to him. The plaintiffs say, therefore, that the defendants have failed to prove
that they were not responsible for the loss. I approach the problem by considering first what
relevant damage was found on the ship at her survey. [His Lordship reviewed the evidence
concerning the damage to the tanker, and continued:] I find that the fractured stern frame was
the cause of the vessel getting out of control; but on the evidence I am unable to say how it
was fractured.

In this state of the evidence Mr. Carpmael submits that the defendants must prove inevitable
accident. To do this they must prove the cause or causes of the accident, and, if they cannot
do that, they fail. He relies on The Merchant Prince.16 In that case the defentant ship when
under way ran into the plaintiff
 16 [1892] P. 179.

[1956] A.C. 218 Page 230

ship at anchor. Fry L.J. said17: "The burden rests on the defendants to show inevitable
accident. To sustain that the defendants must do one or other of two things. They must either
show what was the cause of the accident, and show that the result of that cause was
inevitable; or they must show all the possible causes, one or other of which produced the
effect, and must further show with regard to every one of these possible causes that the result
could not have been avoided." If there is a burden upon the defendants in the present case to
prove inevitable accident they have not, in my opinion, discharged it. They have not shown the
ultimate cause or causes; indeed, they have not set about the proof at all. I accept that on the
voyage in question the vessel showed no sign of any defect in her steering until 14.45, and I
am satisfied that until then the master knew nothing of it. But I cannot exclude the possibility
that there was some defect in her stern frame which made it liable to fracture. I think that the
proof of inevitable accident in such a case as this requires that the defendants should offer
some detailed evidence of the steps they took, by way of surveys and so forth, to make sure
that there were no discoverable defects in her structure; in short, they should prove that they
had exercised due diligence to make and keep her seaworthy. This they have not done.

I do not find The Merchant Prince18 an easy case to apply. One must distingush, I think,
between a case where inevitable accident has to be proved as a matter of defence and a case
of res ipsa loquitur. Take, for example, trespass to which inevitable accident may be a
defence. When the plaintiff proves the trespass (I am dealing now with the ordinary case and
not with trespass arising from use of the highway) his cause of action is complete, and the
defendant fails unless he proves his defence. But when the cause of action is negligence, the
plaintiff must prove negligence; res ipsa loquitur is a principle which helps him to do so. In the
classic statement of the rule by Erle C.J. in Scott v. London and St. Katherine Docks Co.19
one finds that it says no more than that the happening of an accident may in certain
circumstances itself be reasonable evidence of negligence; and when there is reasonable
evidence of negligence put forward by the plaintiff and no explanation put forward by the
defendant, the plaintiff is of course entitled to succeed. If the defendant offers a plausible
explanation consistent with his diligence, the

17 [1892] P. 189.

18 [1892] P. 179; 8 T.L.R. 430.

19 (1865) 3 H. & C. 596, 601.

 [1956] A.C. 218 Page 231

plaintiff is back where he was before and must show the greater probability of negligence. The
distinction is seen at once in pleading. In trespass the defendant must plead inevitable
accident: Hall v. Fearnley.20 In negligence he need only plead a denial: Rumbold v. London
County Council.21

The cases in which the res ipsa loquitur rule is elaborated were cited and applied by Langton
J. in The Kite,22 and more of them will be found in the judgment of Atkinson J. in Imperial
Smelting Corporation Ltd. v. Joseph Constantine Steamship Line Ltd.23 The rule as there
stated does not require from the defendant the sort of proof demanded by Fry L.J. The
Merchant Prince24 was not a case of trespass or anything of that sort, but one in which the
plaintiff alleged negligence and sought to prove it by offering the circumstances of the collision
as prima facie evidence. The case embodies a rule of long standing in Admiralty matters
involving a collision with a ship at anchor. It may be that it is properly to be regarded as a rule
of limited application. If I had to rely upon my own judgment, I should not be able to appreciate
the distinction which has been drawn between The Merchant Prince24 and The Kite25 in later
cases such as The Dageid.26

But I need not pursue these difficulties, because in relation to a decision of the Court of
Appeal they are impertinent, and because I think that I can without directly meeting them give
to the decision in The Merchant Prince27 all the effect which I am bound to give to it. That
decision does not enable the plaintiffs to succeed otherwise than upon a charge of negligence
which they have pleaded. The only negligence alleged in this case is against the master, who
is the second defendant, in respect of his navigation and management of the Inverpool in
relation to this voyage; the owners of the ship, the first defendants, are sued only as
answerable for the master's wrongdoing. I am satisfied that the master was not personally
negligent, and that he had not before 14.45 any reason to apprehend that there was any
defect in his ship. If the rule in The Merchant Prince27 requires him personally to prove what
the cause of the defect in the steering was, and I doubt that it does, then it cannot stand
against the decision of the House of Lords in

20 (1842) 3 Q.B. 919.

21 (1909) 25 T.L.R. 541.

22 [1933] P. 154; 49 T.L.R. 525.

 23 [1940] 1 K.B. 812, 827; 56 T.L.R. 461.

24 [1892] P. 179.

25 [1933] P. 154.

26 (1947) 80 Ll.L.Rep. 517, 522.

27 [1892] P. 179.

[1956] A.C. 218 Page 232

Woods v. Duncan,28 which lays it down that if a defendant can satisfy the court that he
personally was not negligent, he does not have to explain how the accident occurred.

There can be no doubt that, apart from any principle that may be derived from The Merchant
Prince,29 the rule laid down by Lord Blackburn, which I am applying, requires the plaintiffs to
prove negligence and not the defendants to prove inevitable accident. For the reasons which I
have given the plaintiffs have failed to prove negligence and accordingly there must be
judgment for the defendants.

The COURT OF APPEAL held, by a majority, that the doctrine of res ipsa loquitur applied and
that the onus was on the appellants to explain why the steering gear went wrong; as they had
not done so, they were liable in negligence. They affirmed the judgment of Devlin J. in favour
of the master.

H. I. Nelson Q.C. and G. B. H. Currie for the appellant company. This case turned on a charge of
negligence against the master only imposing a vicarious liability on the shipowners. In an action based
on negligence a defendant is only bound to rebut the negligence alleged. Here, since no case of
trespass or nuisance was made out, it is a plain case of negligence. The Court of Appeal affirmed the
judge's finding that the master was not negligent and accordingly they should have dismissed the
appeal instead of deciding against the shipowners on an issue which was not raised in the pleadings.

The master has been acquitted of creating a public nuisance, which is an indictable misdemeanor. Such
a charge could not be supported against the shipowners on the ground that they sent the ship to sea
with defective steering gear as a result of which someone discharged oil into the sea. Further, on the
question of interfering with the user of a public highway, a navigable channel is a public highway but the
sea is not normally a highway. The shipowners are not responsible for a private nuisance in any
ordinary sense. As to trespass, it did not lie at all on the evidence.

The onus of showing negligence lies on the party alleging it, although where the doctrine res ipsa
loquitur applies the burden may temporarily shift to the defendant, but, even then, when

28 [1946] A.C. 401; 62 T.L.R. 283; [1946] 1 All E.R 420n.

29 [1892] P. 179.

[1956] A.C. 218 Page 233

the defendant has given an explanation and all the evidence has been heard, the ultimate test is: Has
negligence been proved against him? This applies to all cases: see Woods v. Duncan1; The Dageid2;
Imperial Smelting Corporation Ltd. v. Joseph Constantine Steamship Line Ltd.3; Joseph Constantine
Steamship Line Ltd. v. Imperial Smelting Corporation Ltd.4 If the effect of The Merchant Prince5 is as
the respondents contend it was wrongly decided. There is a difference between the authorities in
relation to negligence on land and negligence at sea because at sea there are external elements to
contend with.

K. S. Carpmael Q.C. and A. E. Baucher for the respondent corporation. The allegation of nuisance at
the end of paragraph 2 of the statement of claim is not to be read as alleging that the nuisance resulted
from the negligence previously pleaded, viz., the negligence of the master. The exoneration of the
master did not therefore import the exoneration of the shipowners. All the foreshore owners knew about
was the oil damage. They did not know of the steering damage, which was solely within the knowledge
of the shipowners, and accordingly they could not plead it. There was nothing about the damaged stern
frame in the defence.

It was for the defendant shipowners to show that the faulty steering was not due to any negligence on
their part. Vessels if properly navigated do not go aground on a revetment wall in weather such as this.
The shipowners alone knew anything of the upkeep of the ship and they chose to say nothing about the
stern frame until it was mentioned in evidence. After that the foreshore owners were allowed by the
judge to argue their case so as to raise the argument based on The Merchant Prince.6 It was for the
shipowners to prove how the occurrence happened and to show that it was due to inevitable accident.
They did not discharge this onus. The stern frame may have been in an unsound condition at the start
of the voyage so that it was damaged by seas which would not have damaged a sound stern frame.
The foreshore owners having made out a prima facie case of negligence against the shipowners in
regard to a ship within their sole control, the onus then fell on the shipowners.
 1 [1946] A.C. 401, 409; 62 T.L.R. 283; [1946] 1 All E.R. 420n.

2 (1947) 80 Ll.L.Rep. 517.

3 [1940] 1 K.B. 812; 56 T.L.R. 461; [1940] 2 All E.R. 46; (C.A.) [1940] 2 K.B. 430; 56 T.L.R. 882; [1940] 3 All E.R. 211.

4 [1942] A.C. 154; 57 T.L.R. 485; [1941] 2 All E.R. 165.

5 [1892] P. 179; 8 T.L.R, 430.

6 [1892] P. 179, 189.

[1956] A.C. 218 Page 234

This is not a case like Bolton v. Stone7 since here all the relevant facts were not known. Reliance is
placed on Carmarthenshire County Council v. Lewis.8 Barkway v. South Wales Transport Co. Ltd.9
applies the same principle.

As to trespass, see per Devlin J.10 Jones v. Llanrwst Urban District Council11 applies. There is no real
difference between the case of faecal matter in that action and oil in the present action. See also per
Singleton and Denning L.JJ. in the present case.12 Smith v. Great Western Railway Co.13 illustrates
the position when one sues in nuisance. The present case is analogous to that of a driver who drives
his car against a shop front. It is a trespass and it is for him to establish a justification for his action.

In summary, although the statement of claim and particulars are not in ideal form, the matter comes
down in the end to a pleading point. If Devlin J. had not acquiesced in the respondents' case being put
as it was they would have had to apply for leave to amend and, if necessary, for an adjournment, but he
went on with the case and every point was argued, as appears from his judgment. In effect it is as if he
had given leave to amend to bring the case within the terms of the writ. It was wrong for him to say at
the end of his judgment that the case put forward by the respondents was not pleaded. When the case
started they did not know that the appellants were going to say that the broken stern frame caused the
trouble. The decision of this matter should not turn on a point of pleading and the remarks of Singleton
L.J.14 were amply justified. The onus is on the appellants to show how the accident happened and it
should remain on them. They did not attempt to discharge it.

H. I. Nelson Q.C. in reply. The case for the appellants always was that owing to the heavy weather the
ship suddenly became unmanageable. This was their case throughout. The respondents were aware of
the fracture to the stern frame by June 13, 1953. As to the onus of proof, see Imperial Smelting
Corporation Ltd. v. Joseph Constantine Steamship Line Ltd.15 Whether or not the doctrine of res ipsa
loquitur applied at any

7 [1951] A.C. 850, 859-860; [1951] 1 T.L.R. 977; [1951] 1 All E.R. 1078.

8 [1955] A.C. 549; [1955] 2 W.L.R. 517; [1955] 1 All E.R. 565.

9 (1950) 66 T.L.R. (Pt. 1) 597, 599; [1950] 1 All E.R. 392, 394.

10 Ante, p. 225.

11 [1911] 1 Ch. 393, 402-403; 27 T.L.R. 133.

12 [1954] 2 Q.B. 182, 194, 196, 197; [1954] 2 All E.R. 561.

13 (1926) 135 L.T. 112, 113; 42 T.L.R. 391.

14 [1954] 2 Q.B. 182, 192.

15 [1940] 1 K.B. 812, 827.

 [1956] A.C. 218 Page 235

stage of the proceedings, the appellants have given an explanation and it was found by the judge that
they were guilty of no negligence.

Their Lordships took time for consideration.

Dec. 12. EARL JOWITT [having stated the facts]: My Lords, it is obvious that a well-found ship, if
properly navigated, would, in the absence of abnormal circumstances, not have run aground on the wall
and would not have got herself into such difficulties that it became necessary to discharge a
considerable part of the oil which constituted her cargo.

What, then, were the circumstances which made this course necessary? [His Lordship stated the
circumstances of the grounding as set out by Devlin J. and continued:] The action which the
respondents brought against the appellants, the owners of the Inverpool, and against Mr. McMeakin
(her master) was based upon trespass, nuisance and negligence.

Devlin J. decided that the fact that it was necessary to discharge the oil in the interest of the safety of
the crew afforded a sufficient answer to the claim based upon trespass or nuisance. I agree with him in
this view and think it unnecessary to consider whether, had this fact not been established, the cause of
action in trespass or nuisance would have succeeded.

There remains the question of negligence. The statement of claim alleged that there had been
negligence in the navigation of the Inverpool whereby she grounded on the revetment wall, and that her
master had taken no sufficient steps to prevent such grounding. It further alleged that the discharge of
the oil was unnecessary and unreasonable, and that the master ought under the circumstances to have
obtained the assistance of a pilot or of tugs. All these allegations were disposed of adversely to the
plaintiffs, the present respondents, by the findings of the trial judge.

There remained, however, one further allegation which was added to the statement of claim by
amendment: namely, that it was negligent to cause the Inverpool to enter and navigate the channel
when it was known that her steering was erratic. Devlin J. disposed of this suggestion as follows1: "The
plaintiffs contend that the master, knowing before he entered the channel that there was something
wrong with his steering, ought to have anchored or turned about and hove to or put back to sea.

1 Ante, p. 229.

[1956] A.C. 218 Page 236

The master answered that in the weather at the time, to anchor was impossible and to turn about more
dangerous than to proceed. He recognized the danger of proceeding into a narrow channel with
defective steering gear; he weighed up the two evils, he said, and considered that the lesser of the two
was to attempt to get into sheltered water. I should not without assistance be able to say whether he
made the right choice or not, but I should feel able to say that his choice was not a careless or unskilful
one, which would be enough to dispose of the charge of negligence. In fact, the Elder Brother advises
me that, in his opinion, the master's decision was the right one, and I accept that advice."

It follows, therefore, that every allegation in the statement of claim, and the particulars thereunder, was
decided by the judge in a sense adverse to the respondents.

Mr. Carpmael relied upon the doctrine of The Merchant Prince,2 and claimed that it was for the
appellants to prove how the accident happened. He rightly asserted that they had not explained how it
came about that the stern frame had fractured. The facts in the case of The Merchant Prince3 were
that, under weather conditions by no means exceptional and in broad daylight, a ship under way had
collided with a ship at anchor. The court decided that under these circumstances the onus lay on the
colliding ship to negative the charge of negligent navigation which had been made against it. The
defendant in such a case, to discharge the onus thus cast upon him, must show that the accident was
inevitable. In that particular case the steering wheel had become jammed, and in consequence of this
jamming the collision took place. The question for determination was whether it had become jammed
through some negligence on the part of the defendants' servants. Butt P. came to the conclusion that
the owners of the Merchant Prince had shown that there had been no negligence, and as in this view
the accident was inevitable he decided in favour of the defendants. This decision was reversed in the
Court of Appeal. That court pointed out that the steering gear was connected with the rudder by a stud-
link chain; and that if the chain was allowed to become too tight it would not work, and if it was allowed
to become too loose it was liable to kink. The court decided that the probable cause of the jamming was
that the chain had been allowed to become too loose with the result that two of the links kinked as they
went

2 [1892] P. 179, 189; 8 T.L.R. 430.

3 [1892] P. 179.

[1956] A.C. 218 Page 237

round the leading wheel. The chain was a new one, and in a new chain links are liable to stretch. This,
in the view of the Court of Appeal, was a danger which ought to have been foreseen and could have
been guarded against. It followed, in the opinion of the Court of Appeal, that the defendants had failed
to show that the accident was inevitable, and accordingly, as the defendants had not discharged the
onus which was upon them, judgment was entered for the plaintiffs.
My Lords, I do not think that the respondents in this case can derive any assistance from the decision in
The Merchant Prince.3 No one has ever suggested that the fracture of the stern frame, which caused
the steering of the Inverpool to become defective, was in any way caused or contributed to by the
negligence of those in charge of the navigation of the ship. There was, and there could be, nothing
analogous to the improper adjustment of the chain; nor was there any allegation of unseaworthiness
made in the statement of claim: throughout the course of the case no question was directed to the
master or chief engineer in any way bearing on the question of unseaworthiness; and the case made
against the present appellants at the trial rested entirely on their responsibility for the acts of the master
as their servant.

If the plaintiffs' case had been put in the alternative, either that there was some navigational error or
that the ship was unseaworthy, the case would no doubt have been developed on wholly different lines.
Had any such case been made, the ambit of discovery would have been enlarged and the theory
advanced by the Elder Brother that the Inverpool may have broken her stern frame against the bed of
the channel would have been explored. It is idle to speculate what would have happened if such a case
had been made.

In the present case every allegation of negligence has been answered by the finding of the judge, and
there was no allegation of unseaworthiness. That being so, I do not think that the present appellants,
the owners of the Inverpool, can be held responsible because they did not negative some possible case
which had never been alleged against them in the pleadings or made against them in the course of the
trial.

For the reasons I have given I am in favour of allowing the appeal and restoring the judgment of Devlin
J.

I merely desire to add that I am in entire agreement with the observations of Devlin J. in regard to the
assistance of the

3 [1892] P. 179.

[1956] A.C. 218 Page 238

Elder Brother. In the present case he did not have that assistance during the hearing, but obtained it
after the trial was concluded. He indicated that in similar cases in the future he would take steps to
secure the presence of an Elder Brother to act as assessor during the trial.

I should like to express my concurrence with this expression of intention. If a judge comes to the
conclusion that the case is one in which he would profit by the presence of an assessor, it is manifestly
more satisfactory that this assistance should be available during the trial rather than after its
completion.

LORD NORMAND. My Lords, it is unnecessary for me to add anything on trespass and nuisance. I
agree with my noble and learned friends, whose opinions I have had the advantage of reading, that the
real issue in the appeal is that of negligence.

On negligence the appellants' first and main contention was that the Court of Appeal have travelled
beyond the negligence alleged by the respondents. The respondents' pleadings show (1) that the
owners and master of the ship were charged with the same negligent acts or omissions, for which the
owners would be liable vicariously and the master directly, if they were proved; (2) that all these acts
and omissions were errors in the navigation of the ship; (3) that they began when, and not before, the
ship was about to enter the channel of the river Ribble on her way to Preston; (4) that after the
respondents had seen the master's report, which disclosed that the stern frame had been fractured, the
rudder damaged, and the propeller blades broken, they amended their pleadings by adding an
allegation of negligence in navigating the vessel into the channel when the steering was erratic. These
were the allegations which the respondents set out to prove. There was no notice in the pleadings of
any other cause of action, such as that the appellants negligently sent the vessel to sea in an
unseaworthy condition.

The function of pleadings is to give fair notice of the case which has to be met so that the opposing
party may direct his evidence to the issue disclosed by them. In fact the evidence in the case was
concerned only with the negligence alleged. The result was that the master of the vessel was acquitted
by Devlin J. of the negligence alleged, and the logical consequence was that the owners were also
acquitted by him.

The majority of the Court of Appeal, however, held that the onus lay on the owners to show that the
accident which caused the damage was inevitable, and to do this it would have been
[1956] A.C. 218 Page 239

necessary to show that no reasonable care which they might have taken would have avoided the
damage. As the appellants had made no attempt to lead evidence to discharge this onus, the majority
of the Court of Appeal found them liable in damages.

I do not wish to speculate on what might have been alleged, nor on what evidence might have been
adduced by either side on other allegations, nor on how the onus might have shifted in consequence of
other allegations and evidence. Confining myself to the actual allegations of negligence and to the
evidence in the case, I find the conclusion inevitable that, since the master has been acquitted of the
faults alleged against him, the owners must also be acquitted. I wish to associate myself with the
observations of my noble and learned friend, Lord Radcliffe, on the value of the pleadings. To condemn
a party on a ground of which no fair notice has been given may be as great a denial of justice as to
condemn him on a ground on which his evidence has been improperly excluded.

I would allow the appeal.

LORD MORTON OF HENRYTON. My Lords, this appeal arises out of an action in which the
respondents were plaintiffs and the appellants, as owners of the Inverpool, and one George McMeakin
as master of that vessel, were defendants. The events leading up to the action have already been
stated by my noble and learned friend on the Woolsack.

The first submission of counsel for the appellants was that, having regard to the pleadings and to the
fact that the Court of Appeal affirmed the judgment of Devlin J. in favour of the master, that court should
also have affirmed the judgment of the learned judge in favour of the appellants, instead of deciding
against them on an issue which was not raised by the pleadings. This submission leads me at once to a
consideration of the pleadings, in order to see exactly what were the issues raised thereby.

[His Lordship stated the material parts of the pleadings and continued:] My Lords, I have set out the
pleadings in detail in order to show that no complaint was made of any act or default on the part of the
appellants, either in the original statement of claim or at the time when the respondents had the
opportunity of amending it with full knowledge of the facts already mentioned. As against the master, it
was alleged that he had been negligent, that his negligence was the cause of the discharge of oil from
the tanker, that such discharge had resulted in "a trespass and/or nuisance" and had caused damage to
the respondents. It
[1956] A.C. 218 Page 240

was sought to make the appellants liable only on the ground of vicarious responsibility for the acts and
defaults of the master.

All the attacks upon the master's conduct were fought out before Devlin J. and they all failed. The
victory of the master destroyed the only ground upon which the respondents by their statement of claim
had sought to cast liability upon the appellants. Counsel for the respondents then sought to make a
case of which no hint appeared in the pleadings. They contended that in the circumstances the onus
was upon the defendants in the action to prove inevitable accident, and they quoted the observation of
Fry L.J. in The Merchant Prince4: "The burden rests on the defendants to show inevitable accident. To
sustain that the defendants must do one or other of two things. They must either show what was the
cause of the accident, and show that the result of that cause was inevitable; or they must show all the
possible causes, one or other of which produced the effect, and must further show with regard to every
one of these possible causes that the result could not have been avoided." Counsel submitted that the
defendants had not discharged this burden; for instance, the stern frame might have been in an
unsound condition when the tanker started her voyage, and might have been fractured by heavy seas
which would not have fractured a sound stern frame. This argument failed before Devlin J. but
succeeded with the majority of the Court of Appeal. Devlin J., after referring to The Merchant Prince,5
said6: "That decision does not enable the plaintiffs to succeed otherwise than upon a charge of
negligence which they have pleaded. The only negligence alleged in this case is against the master,
who is the second defendant, in respect of his navigation and management of the Inverpool in relation
to this voyage; the owners of the ship, the first defendants, are sued only as answerable for the
master's wrongdoing." Having acquitted the master of negligence, he dismissed the action. From that
decision the present respondents appealed and the majority of the Court of Appeal held that the burden
lay upon the present appellants to show that they had exercised proper care and that they had failed to
discharge that burden. The court therefore directed that judgment be entered against the present
appellants for an amount of damages to be ascertained but affirmed the judgment of Devlin J. in favour
of the master. My Lords, it may well be that the
 4 [1892] P. 179, 189.

5 [1892] P. 179.

6 Ante, p. 231.

[1956] A.C. 218 Page 241

respondents' case might have been pleaded in such a way as to cast upon the present appellants the
burden of proving that they had exercised proper care. In that event, as my noble and learned friend on
the Woolsack has said, the case would no doubt have developed on different lines. The respondents,
however, as I have already pointed out, had pleaded negligence of the master, and trespass and
nuisance and damage resulting from such negligence; as against the appellants, they chose to rely only
upon the responsibility of the owners for the master's negligence.

In this state of the pleadings it seems to me to follow that the Court of Appeal, having affirmed the
judgment of Devlin J. in favour of the master and having thereby acquitted the master of any
negligence, should also have affirmed his judgment in favour of the present appellants.

My Lords, I do not regard the first argument of counsel for the appellants as a merely technical one. I
think that the course taken by the majority of the Court of Appeal cast upon the appellants a burden
which they should not have been called upon to shoulder and caused substantial hardship to them. In
my opinion, counsel's first argument ought to succeed, and I would allow the appeal.

LORD RADCLIFFE. My Lords, I think that this case ought to be decided in accordance with the
pleadings. If it is, I am of opinion, as was the trial judge, that the respondents failed to establish any
claim to relief that was valid in law. If it is not, we might do better justice to the respondents - I cannot
tell, since the evidence is incomplete - but I am certain that we should do worse justice to the
appellants, since in my view they were entitled to conduct the case and confine their evidence in
reliance upon the further and better particulars of paragraph 2 of the statement of claim which had been
delivered by the respondents. It seems to me that it is the purpose of such particulars that they should
help to define the issues and to indicate to the party who asks for them how much of the range of his
possible evidence will be relevant and how much irrelevant to those issues. Proper use of them
shortens the hearing and reduces costs. But if an appellate court is to treat reliance upon them as
pedantry or mere formalism, I do not see what part they have to play in our trial system.

In my view, the trial turned upon the issue of negligence. It is true that the fact that the oil spread itself
over the respondents'
[1956] A.C. 218 Page 242

foreshore was the subject of alternative claims in nuisance and in trespass. So far as nuisance goes, I
share the view of Denning L.J. in the Court of Appeal that the appellants were not responsible for a
private nuisance in any ordinary sense. What was done may possibly have constituted a public
nuisance from which the respondents suffered special damage; but since it seems to be conceded that
it would be a defence to such a claim to show that the discharge of oil was reasonably necessary to
prevent loss of life in the ship's crew unless the appellants' own carelessness had brought about the
danger of that loss, the essential issue comes round again to one of negligence. As to trespass, I am
not prepared to say that I think that the appellants' action did constitute a trespass at all. Certainly I do
not regard such decisions as Jones v. Llanrwst Urban District Council7 and Smith v. Great Western
Railway Co.8 as having any real bearing on the circumstances of this case in which the oil was
jettisoned at sea, committed to the action of wind and wave, with no certainty, so far as appears, how,
when or under what conditions it might come to shore. But the issue of trespass was only touched upon
before us, presumably because it was common ground that there would again be a good defence
unless negligence were established.

As to the proof of negligence, I can summarize my view as follows. The respondents might have
undertaken to make good their claim in more than one way. One way would have been to follow the line
taken in The Merchant Prince,9 upon which so much of the argument in this case has turned. That
would have meant relying on the view that the mere fact that the ship had grounded on the training wall
at all was evidence of negligence, and calling upon the appellants to discharge the onus of disproof
thus placed upon them. I do not think that we have sufficient material to enable us to say with certainty
whether such an opening attack would have succeeded. Running a ship on to the training wall of a
channel in the conditions of weather which prevailed at the time of the accident is at any rate not the
same thing as running into a stationary vessel in the Mersey. But, assuming that the event was itself
prima facie evidence of negligence and that the respondents had so framed their case, I do not doubt
that the majority of the Court of Appeal were right in saying that the appellants would not have
displaced that evidence

7 [1911] 1 Ch. 393; sub nom. Isgoed Jones v. Llanrwst U. D. C., 27 T.L.R. 133.

8 (1926) 135 L.T. 112; 42 T.L.R. 391.

 9 [1892] P. 179.

[1956] A.C. 218 Page 243

by merely showing that their failure in navigation was due to a failure in the steering apparatus of the
ship. They would have had to go further and show that they had not omitted any reasonable precaution
to ensure that failures did not occur in their steering apparatus or in their control of the steering.

But the point is that the respondents did not undertake to make good their case on these lines. It is
quite clear from the particulars which they were invited to furnish, and which they furnished, that they
decided to rely on certain actions of the master in his navigation of the ship. He was careless, they said,
in taking his ship into the channel when its steering apparatus was working so badly and/or when its
stern frame, rudder and propeller had sustained damage. Knowing what he did about the conditions, he
ought to have stayed outside, or called for a pilot or tug, or had the damage inspected and remedied
before going in, or at any rate managed to navigate so as not to run into the wall. There were further
grounds of complaint relating to the master's decision to jettison the oil, challenging the necessity or
propriety of that decision. I find it impossible to read the statement of claim and the particulars without
coming to the clear conclusion that, while the respondents were announcing it to be one of their heads
of complaint that the master had brought his ship into the channel with defective control of steering,
they were not putting it forward as a ground of complaint that the appellants, the shipowners, had
allowed their ship to be at sea in such a defective condition. And that is what they now wish to complain
of.

The respondents called evidence in chief, expert evidence, in support of their heads of claim. In their
turn the appellants called their evidence upon these heads. The trial judge, after weighing the evidence,
came to the conclusion that the respondents had not made good their case on any of the particulars.
There, he thought, the case ended, and I am of the same opinion. I think it quite wrong that the
respondents should, nevertheless, be entitled to say that the appellants must lose because they did not
cover at the trial a range of evidence, how the stern frame came to break, the condition of the steering
apparatus, the measures taken by the appellants to ensure that their ship and gear were in good order,
which the respondents by their own pleading had excluded from the trial.

I am not unmindful that the respondents' counsel told us that he had conducted his case throughout on
the lines of The
[1956] A.C. 218 Page 244

Merchant Prince9 decision, although there did not seem to be unanimity between him and counsel for
the appellants as to the stage at which what I will call The Merchant Prince9 argument first appeared
during the hearing. In my view, where the question is, as here, as to sufficiency of evidence, the state of
the pleadings is of more importance than the way in which the case is shaped in argument. It is clear
that no application was made to the trial judge to amend the pleadings by altering or extending the
particulars, and it is equally clear from what he says at the close of his judgment that he did not regard
himself as having expressly or impliedly authorized any such amendment. That being so, I am of
opinion that the appellants called as much evidence as was required of them to defend themselves
from the charges of negligence that were made in this case.

I agree that the appeal should be allowed.

LORD TUCKER. My Lords, I agree that having regard to the issues raised in the pleadings it was not
open to the Court of Appeal to substitute for the judgment of the trial judge in favour of the defendants a
judgment in favour of the plaintiffs based upon the failure of the defendants to prove that the Inverpool
was seaworthy when she left Liverpool on December 3, 1950.

I desire only to add a word or two about the alleged cause of action in trespass. I am inclined to agree
with Denning L.J. that trespass does not lie on the facts of this case, as the discharge of the oil was not
done directly on to the foreshore but outside in the estuary. Furthermore, it would seem from the
decision in Sharrod v. London and North Western Railway Co.10 that even if trespass would lie against
the master, it would not have been available against the defendant company. Apart, however, from such
considerations as these it is, in my view, well settled that, in actions between users of the highway and
between the occupier of premises adjoining the highway which have been damaged by a person
lawfully using the highway, the person who has suffered damage cannot recover in trespass in the
absence of negligence on the part of the person who has caused the damage: see per Lord Blackburn
in River Wear Commissioners v. Adamson,11 where he says: "My Lords, the common law is, I think, as
follows:- Property adjoining to a spot on which the public have a right to carry on traffic is liable to be
injured by that traffic. In this respect there is no difference between a shop,

9 [1892] P. 179.

10 (1849) 4 Exch. 580.

11 (1877) 2 App.Cas. 743, 767.

[1956] A.C. 218 Page 245

the railings or windows of which may be broken by a carriage on the road, and a pier adjoining to a
harbour or a navigable river or the sea, which is liable to be injured by a ship. In either case the owner
of the injured property must bear his own loss, unless he can establish that some other person is in
fault, and liable to make it good." This was the principle applied by McCardie J. in Gayler & Pope Ltd. v.
B. Davies & Son Ltd.12 in rejecting the contention that the plaintiffs in that case could succeed in
trespass in the absence of negligence.

Appeal allowed.

Solicitors: Thomas Cooper & Co.; Sharpe, Pritchard & Co.

F. C.

12 [1924] 2 K.B. 75; 40 T.L.R. 591.