negligence," and concluded that there had been an omission to take a plain means of saving the ship. The judgment is, I think, valuable in giving a warning against stating these cases with an assumption that subsequent damage is prima facie the result of the collision-in other words, that post hoc is propter hoc. If the City of Lincoln be accepted as good law, you have in it the high-water mark, as you have in the Flying Fish and in the Paludina, [1927] A.C. 16; 25 LI.L.Rep. 281, the low-water mark, of the doctrine of consequential damage.

My Lords, whether the burden of proving that the subsequent damage followed upon the collision lay upon the pursuers, or whether it was for the defenders to disprove the consequence-which seems to me rather a question of degree than of lawI cannot assent to the view of the Lord Justice-Clerk that it was for the defenders to prove their case "beyond all reasonable doubt." And I was glad to hear from Counsel for the pursuers that they did not put their case so high. The proof, if it had to be given by the defenders, was proof of the same kind as that accepted for ordinary matters in a Court of Justice. Neither can I agree with the Lord JusticeClerk that "the Baron Vernon was relegated to a choice of remedies." In my humble judgment, there was no choice to make, and none was made. A duty which was reasonably plain was omitted to be discharged.

My Lords, as I agree with the Lord Ordinary in his finding that it was due to the negligence of those on board the Baron Vernon that she moved from position No. 1 to position No. 2, so I agree with him that on the whole there was not negligence in the Baron Vernon getting from No. 2 to No. 3, and that this movement may be deemed the natural consequence of her being in No. 2. It is true that this particular movement might have been prevented if there had been a heavier anchor out astern, or if a tug had been employed to tow astern during the strongest part of the flood tide. It is also true that it does not seem to have occurred to anyone that if the Baron Vernon sheered inward she would move her bows or wedge her stem outward, as, unfortunately, she did. But at this time the harbour-master and his deputy were on the spot; and though they were not in charge of the ship, nor did the captain cease to be in charge, as the Lord Justice-Clerk seems to have thought, and though they gave no erders but only advice, still, I think that on the question of the direction in which the anchors should be laid and the number of anchors they might have given orders, and their advice, therefore, came with great weight. There was present also another adviser of nautical experience, Captain Burns, and all three gentlemen concurred in what was being done and in not requiring anything more. True it is that they had nothing to say as to the propriety of having a tug, and this may be said not

to concern them. But it is a point that no one of them recommended the employment of a tug; and, more important still, no one of them anticipated that any mischief would result from her stern swinging in. I think that the movement to No. 3 may be taken as the natural consequence of ber getting into position No. 2.

It has been suggested on behalf of the pursuers that, if your Lordships take this view as to the transition from No. 2 to No. 3, they are then entitled to say that they can recover in full notwithstanding that there may have been negligence on the part of their people in allowing the ship to move from No. 1 to No. 2. This is founded upon the statement made by one of the witnesses for the defenders to the effect that No. 2 was in itself a good position, the exact words being that from the point of view of the salvor the position was an extraordinarily favourable ore in my opinion." But to read this passage divorced from the context would be to misinterpret the evidence of the witness. In a sense No. 2 was a good position. It was outside, though only just outside, the dredged deep water channel; and, as the ship lay parallel with the bank, the obstacle to such navigation as might travel outside the deep water channel was reduced to the narrowest possible point, and the opposition to the tide with its consequent operation of scouring and silting was reduced to the lowest point.

It may be remarked in passing that it was a very dangerous position if the bulkhead were to give way. The real objection to it, however, is that, as the event showed, the position would not be preserved (I would rather say "would not than "could not ") and would therefore end in the fatal position No. 3. In this matter the pursuers seem to me in a dilemma. Either the transition from No. 2 to No. 3 could reasonably have been prevented-in which case their people were responsible for that transition or it could not have been prevented and is the natural consequence of the ship getting into position No. 2, and, this being so, the responsibility falls on those who allowed the ship to get from No. 1 to No. 2.

It was suggested that if the Baron Vernon had been placed by those in charge of her in position No. 2 immediately after the collision and had then undergone the same misfortunes which she afterwards underwent, those in charge of her would not have been held guilty of negligence in so placing her, and her owners might have recovered for a total loss. This might have been so, because an error in judgment in a moment of sudden danger produced by a fault of the Metagama would not constitute negligence in those in charge of the Baron Vernon, as was decided in the Bywell Castle, 4 P.D. 219, and many similar cases by sea and land. In those circumstances there might have been no cause of complaint against those in charge of the Baron Vernon. They could not well help what happened. The complaint hero

Lord BLANESBURGH: My Lords, after a review of the unfortunate progress of the Baron Vernon from the moment when she found herself at rest in position No. 2 until she finally sank when in position No. 3, one is tempted to ask why it was that she ever sank at all. From a little after 9 o'clock on the Friday evening until 6 30 on the following Sunday morning she remained anchored in position No. 2, 14 miles below Glasgow, in the placid waters of the Clyde, undisturbed by wind or weather, not really seriously damaged by the collision, with steam on her engines and with all the salvage appliances of the river in the shape of tugs, anchors, pumps and tackle available for her service. And, notwithstanding this, at the end of it all she sank in the mud. Lord Phillimore has drawn attention to the statement of one of her owners to whom it seemed hardly conceivable that the vessel would become a total loss at their doors, as it were. The final disaster is indeed one which calls for some explanation. Did the respondents in charge of the vessel and in duty bound to minimise the injury due, in its origin, to the collision, really do their best in the circumstances?

The question is very insistent. Nor does it become less so when the nature of position No. 2 is recalled. It is described in unqualified terms of approval by Captain Melcalfe, a witness for the appellants. In his opinion, from the point of view of salvage, the Baron Vernon when so placed was in the most favourable position she could possibly be in, for the reason, which he gives, that she was lying up and down the tide, well out of the river traffic, and situated so that all salvage operations could be most conveniently carried out upon her. Nor does Captain Melcalfe stand alone here. His view is shared by Captain Munro, another witness for the appellants, who further indicates with reference to position No. 1 and position No. 2 that while there was no finality in either of them the two positions were alike in that they were both admirably adapted as bases from which, if need be, by means of anchors, proper moorings and the assistance, if necessary, of her own steam, the Baron Vernon might ultimately be placed in the most advantageous position available for salving with no further damage to herself. I read the evidence of both witnesses as amounting to this, that on the evening

of the collision there was, to all appearances, so little to choose between positions Nos. 1 and 2 in the above respects that had both of them been open to the master and pilot when the Baron Vernon was driven from her position on the south bank, either might without impropriety have been chosen.

My Lords, all of your Lordships are of the opinion, which I also share, that, while in their subsequent proceedings when she was in position No. 2 those in charge of the Baron Vernon, by acting on mistaken advice, may have brought about a disaster that with greater forethought was avoidable, their conduct for all that did not in the circumstances amount to negligence. The appellants accordingly gain nothing from the strong opinions on this subject held and expressed by their witnesses, and notably by the two to whom I have already referred. I find, however, implied in their evidence something which is very important in connection with another branch of the case, namely, that had it occurred to anyone that such a course was desirable, no reason is disclosed why at either high tide on the Saturday the Baron Vernon could not under her own steam have been again brought, as she had been on the previous night, to what I may call a position No. 1 on the north bank and have been there beached and protected by ropes, tugs and anchors by that time available. In other words, the loss of position No. 1 on the previous night was not final or irrevocable. It could have been recovered later had the attempt seemed to anyone to be worth while. It did not so seem, and no one is even now blamed for that view-and for the reason that position No. 2 seemed to all, and rightly, to be a position not of necessity but of choice.

Accordingly, the serious question between the parties really is whether the respondents are to be held in fault for the alleged omissions, neglects and errors of seamanship committed when the Baron Vernon was in that position and not before. These were the true causes of the final sinking, and it is unfortunate for the appellants that responsibility for them, as acts of negligence, is not, for the reason already given by your Lordships, imputable to the respondents. As I see it, the truth is that the loss of position No. 1 has in the development of the case been invested with an importance to which it had no claim. As I think, the taking up of that position by the Baron Vernon and its loss had in the result no influence on the chain of causation either in fact or in law. It was not until Mar. 18, 1925, nearly two years after the collision, that position No. 1 was set up as being specially favourable, and even then the amendment which introduced that statement went on to describe position No. 2 as a position from which the Baron Vernon could have been expeditiously salved-all in accord with the evidence of the appellants' witnesses to whom I have referred. But, my Lords, while this view of the

case would justify my adherence in its result to the judgment of the Second Division, I am conscious that it is a view which has commended itself to myself only. It behoves me therefore to express my opinion upon the question discussed by all your Lordships-the question, namely, whether the failure by the respondents to use the engines of the Baron Vernon while she remained in position No. 1 amounted to negligence to which are attributable, and not to the collision, all the consequences which followed.

My Lords, this aspect of the case has been so fully dealt with by your Lordships who have preceded me that I can express my own conclusion upon it very briefly. I observe, at the outset, that the fundamental difference here between the Lord Ordinary and the learned Judges of the Second Division is a legal one. In the opinion of the Lord Ordinary it was necessary only for the appellants, on this point, to make out a prima facie case of negligence against the respondents. That done, it lay upon the respondents to establish that the use of the engines not only might but would or must have been of no avail. If this is correct in point of law then it cannot, I think, be disputed, that, assuming a prima facie case of negligence to have been made, the respondents did not succeed in proving what was required of them. On the other hand, the view of the Second Division on this point is well expressed in the judgment of the Lord Justice-Clerk where he says that the onus was on the appellants to prove affirmatively that precautions, e.g., the use of the engines, should have been taken which were neglected and that these precautions if taken would probably have been effective. If this proposition be correct in point of law, then the Lord Ordinary as I read his judgment would not dissent from the view that the appellants had not succeeded in affirmatively establishing what was thereby required of them.

Now, for myself, my Lords, taking the well-known case of Davis v. Garrett, 6 Bing. 716, and later authorities which have followed it, as guides, I would prefer to state the true rule in a form which lies, perhaps, between these opposing views. These authorities, I think, show that it is not sufficient for the appellants in a case like the present merely to show, as the Lord Ordinary seems to have thought, that the negligence and the injury that might flow from it did exist. It was necessary for them and here I choose a form of words somewhat more definite than that employed by the Lord Justice-Clerk-in addition to show that the injury would in ordinary course flow from negligence. If less is shown the act of negligence must be regarded as otiose-as inoperative to cause or contribute to the subsequent injury.

Now, my Lords, this is for me a critical matter. I am in agreement, if I may say so, with Lord Dunedin in the view which he has expressed with reference to the evidence

on this point of the master and the pilot of the Baron Vernon. The case of the respondents is, I think, prejudiced by that evidence. But, nevertheless, the appellants have not, in my judgment, succeeded in showing that if her engines had been kept going there was more than a remote possibility, a mere chance, that the Baron Vernon might thereby have been prevented from slipping. With the further help of tugs, yes but without a tug, no. Here the appellants suffer, and I think rightly suffer, for their delay in raising this question, a delay which has indefinitely aggravated the difficulty of ascertaining with any precision the exact position of the Baron Vernon at the time and the details of the other factors which affect the result.

On the whole case, therefore, I am of opinion with the noble Viscount on the Woolsack that this particular charge in relation to position No. 1 has failed, as have all the others. Accordingly I also am for dismissing the appeal.

The appeal was by a majority dismissed.

Bill of lading-Damage to cargo (skins) by water-Finding that water entered by hole in waste pipe from crew's washhouse; that hole was caused by negligence of member of crew Act, neglect, or default... in the management of the ship "-Surrender of statutory immunity-Whether to be inferred by needless repetition in bill of lading of another statutory immunity-Unseaworthiness Whether "reasonably fit to be worked in the way which might ordinarily be expected" Australian Sea Carriage of Goods Act, 1924, Schedule, Arts. IV (2) (a), V.

In this case the owners of nine bales of opossum skins, laden on board the Norwegian motor vessel Touraine, claimed from the owners of the Touraine damages for injury to the skins sustained while the goods were being conveyed from Australia to Hamburg. The defendants denied liability.

Mr. C. R. Dunlop, K.C., and Mr. L. F. C. Darby (instructed by Messrs. Waltons & Co.) appeared for the plaintiffs; Mr. G. P. Langton, K.C., and Mr. J. St. Clair Lindsay (instructed by Messrs. W. A. Crump & Son) represented the defendants.

Plaintiffs claimed in respect of nine bales of opossum skins shipped under bills of lading dated Oct. 2 and Oct. 5. They said that the bales were shipped in apparent good order and condition by Messrs. A. G. Watson on board the defendants' motor

vessel Touraine at Sydney to be delivered at Hamburg unto order. The following was a term of the bill of lading:

This bill of lading is to be read and construed as if every clause therein contained which is rendered illegal or null and void by the Australian Sea Carriage of Goods Act, 1924, had never been inserted therein or had been cancelled and eliminated therefrom prior to the execution thereof and is issued subject to all the terms and provisions of and to all the exemptions from liability contained in such Act.

Plaintiffs said that it was provided by the above Act that the carrier was bound, before and at the beginning of the voyage, to exercise due diligence to make the ship seaworthy, properly to equip the ship, and to make the holds and all other parts of the ship in which goods were carried fit and safe for their reception, carriage, and preservation; further, by Art. III (2):

Subject to the provisions of Art. IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

The Touraine left Sydney on Oct. 6, 1926, and arrived at Hamburg on or about Nov. 21. Plaintiffs said that the defendants failed to deliver the bales in good order and condition but delivered them in a damaged and a wet condition. This damage was not caused by any of the perils excepted by the bills of lading and did not arise or result from any of the causes mentioned in Art. IV (2) of the Schedule to the Sea Carriage of Goods Act, 1924. The bales had been loaded, stowed, carried and kept in a compartment in the after part of the Touraine on the main deck. This compartment was situated between the main and shelter decks. Upon the shelter deck immediately above the compartment in which the skins were stowed were the crew's quarters, and a 2-in. drain pipe from the sailors' washroom, which passed through the compartment in which the bales had been stowed to the side of the ship, was fractured and salt water had thereby found its way to the skins and had damaged them.

Plaintiffs said, further, that by reason of the above-mentioned matters the Touraine before and at the beginning of the voyage was unseaworthy and was not properly equipped and was not fit and safe for the reception, carriage and preservation of the skins.

The defendants did not admit that they failed to deliver the bales of opossum skins in good order and condition or delivered them in a damaged or wet condition. Alternatively, if (which was not admitted) they failed to deliver the bales in good order and condition and delivered them in a damaged or wet condition, defendants denied that they thereby committed any breach of contract or duty. They denied that the Touraine was unseaworthy or was rot properly equipped or was not fit or safe

for the reception, carriage and preservation of the skins before or at the commencement of the voyage.

Alternatively, defendants said that the bills of lading provided as follows:

"

(c) The carrier shall not be accountable for the condition of goods shipped under this bill of lading nor for any loss or damage thereto, whether arising from failure or breakdown of machinery, insulation or other appliances, refrigerating or otherwise, or from any other cause whatsoever whether arising from a defect existing at the time of the commencement of the voyage or at the time of shipment of the goods or not . . .

(e) Loss or damage resulting from any of the following causes or perils is excepted, viz. perils of the seas or navigation of whatsoever nature or kind and howsoever caused; any accidents to or defects latent or otherwise in hull, tackle, boilers or machinery, refrigerating or otherwise, or their appurtenances (whether or not existing at the time of the goods being loaded or the commencement of the voyage) provided reasonable means have been taken to provide against such defects and unseaworthiness, and any other cause beyond the control of the carrier.

In the further alternative they said that it was a term of the bills of lading that 'This bill of lading is issued subject to all the exemptions from liability contained in the Sea Carriage of Goods Act, 1924. This Act in the Schedule provided by Art. IV (1):--

Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the Iship in which goods are carried fit and safe for their reception, carriage and preservation...

By Art. IV (2) :—

Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from-(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;

(c) Perils, dangers and accidents of the sea or other navigable waters; . . . (p) Latent defects not discoverable by due diligence; (q) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier....

Defendants said that if the bales were delivered in a damaged or wet condition (which was denied) the defendants were not liable therefor by reason of the aforesaid exemptions from liability contained in the bills of lading and in the Act.

If (which was denied) the Touraine was before or at the beginning of the voyage unseaworthy or not properly equipped or was not fit or safe for the reception, carriage or preservation of the bales and the same were thereby damaged, reasonable means were taken to provide against such Unseaworthiness and/or the said damage and/or the unseaworthiness was not caused by want of due diligence as aforesaid on the part of the carrier. If (which was not admitted) the drain pipe was fractured, such fracture was caused during the voyage by a member of the crew negligently poking the pipe with an iron rod in order to clear away obstruction which blocked up the pipe after the Touraine had left Sydney.

In the further alternative the bills of lading provided as follows:

(g) The carrier will not be accountable to any extent or under any circumstances whatever for furs nor in the case of any other goods beyond the value of £5 per cubic foot nor exceeding £100 for any one package unless the value thereof shall have been declared at the time of shipment and the bills of lading signed with a declaration of the nature and value of the goods appearing thereon and extra freight in respect of same agreed upon and paid.

(v) Weight, measurement, contents, condition, quality and value unknown. Any reference in the margin of the bill of lading to weight, measurement, contents, condition, quality or value is shipper's statement inserted for the purpose only of estimating freight and involves no admission by the ship of the correctness thereof.

The value of the skins was not declared at the time of shipment nor were the bills of lading or any of them signed with a declaration of the nature or value of the skins nor was extra freight in respect thereof agreed upon or paid, and defendants said that they were not liable for the alleged damage to the skins or were not liable to pay in respect thereof more than £5 per cubic foot or more than £100 for each package.

Thursday, Dec. 15, 1927.

JUDGMENT.

Mr. Justice HILL, in giving judgment, said: This is a claim made under five bills of lading in respect of bales of opossum skins shipped in Sydney in October, 1926, for delivery in Hamburg and delivered damaged. The damage was by water, whether fresh or salt is immaterial. It was water which entered the strong room in which the skins were stored from without. The defendants say the damage was caued by negligence for which they are not responsible. That is the first question to be decided. Plaintiffs, while denying

such cause, say that the cause was the unseaworthiness or unfitness of the ship. That is the second question. If the defendants fail on these points, they say that (a) they are not liable at all for furs (and that depends on the bill of lading read in the light of the Act) or (b) they are liable only to the limited extent per bale fixed by the Act. The Act applicable is the Sea Carriage of Goods Act, 1924, of the Australian Commonwealth.

I have come to a clear conclusion as to how the damage was caused. The skins were the only cargo stored in the strong room. The strong room was aft and between the main and shelter decks. Above it at its far end was the sailors' washhouse. This washhouse was on the shelter deck. It had a cement floor. Waste water was carried from the floor of the washhouse to the ship's side by a lead pipe which passed through the strong room. There was a hole in the cement communicating through a hole in the shelter deck with the upper end of the pipe which was fitted with a flange to the under side of the shelter deck. At the lower end the pipe was fitted with a flange to a hole in the ship's side, which was fitted with a storm valve. There were two bends in the pipe. The upper one was 8 sharp bend a little below the upper end of the pipe. The pipe and also a pipe from the W.C. adjoining the washhouse were cased in with wooden casing the object of which was to protect the pipes from injury. On the floor of the strong room were scuppers leading to the bilges. The only access to the strong room was by a trunk hatchway opening on the poop deck. Before the skins were loaded there was no sign of moisture in the strong room. During the voyage, before the ship reached Aden, some scraping was done in the trunk way, and the skins were shifted to the fore part of the strong room and thereby brought nearer to the pipe. At this time nothing wrong was noticed. There was no water in the strong room. At Hamburg the skins were found wet and very seriously damaged. There was water on the floor of the strong room, sufficient to have shifted the dunnage wood. The scuppers were choked and water had to be baled out. The water had entered the strong room by a hole or crack in the lead waste pipe at the bend a little below the shelter deck. The water had come from the washhouse.

It is in my judgment improbable to suppose that this hole or crack existed before the voyage began. It must have come into existence during the voyage. The washhouse was in regular use. It contained a shower bath. It also contained basins which seem not to have been used. But the sailors brought into the washhouse pails of fresh water and there washed themselves and sometimes their clothes. The pails were emptied on to the floor. The wood casing in the strong room was not water tight. Had the hole or crack in the pipe been in existence during the