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[L.R.] 14 P.D. 64
[IN THE COURT OF APPEAL.]
THE MOORCOCK.
1889 Feb. 23, 25. LORD ESHER, M.R., BOWEN, and FRY, L.JJ.
Ship — Damage — Jetty in Tidal River — Vessel of necessity grounding — Implied
Representations by Wharfinger. —
The defendants, wharfingers, in consideration of charges for landing and storing the
cargo, agreed to allow the plaintiff, a shipowner, to discharge his vessel at the
defendants' jetty, which extended into the River Thames, where the vessel must
necessarily ground at low water. The bed of the river adjoining the jetty was vested in the
Conservators. The defendants had no control over the bed of the river, and had taken no
steps to ascertain whether it was or was not a safe place for the vessel to lie upon. The
vessel, on grounding, sustained damage from the uneven condition of the bed of the river
adjoining the jetty:—
Held , affirming the judgment of Butt, J., that the defendants were liable, for the use of
their premises by the plaintiff could not under the circumstances be had without the vessel
grounding, and the defendants must, therefore, be deemed to have impliedly represented
that they had taken reasonable care to ascertain that the bottom of the river adjoining the
jetty was in such a condition as not to cause injury to the vessel.
APPEAL by the defendants from a judgment of Butt, J.1 , by which they were held liable
for the damage sustained by the plaintiff's vessel whilst lying at their jetty.
The facts, which are fully set out in the report in the Court below1 , were shortly as
follows:
The appellants were wharfingers possessed of a wharf abutting on, and a jetty
extending into, the River Thames. The respondent was the owner of the steamship
Moorcock .
In November, 1887, it was agreed between the appellants and the respondent that the
vessel should be discharged and loaded at the wharf, and for that purpose should be
moored alongside the jetty where she would take the ground at low water.
No charge was made in respect of the vessel being moored alongside, or lying at, the
jetty, but the shipowner paid for the use of the cranes in discharging the cargo, and rates
were payable to the appellants on all goods landed, shipped, or stored.
Whilst the Moorcock was lying moored at the extremity of the jetty discharging her
cargo, the tide ebbed, and when she ceased to be waterborne, she sustained damage,
owing to the centre of the vessel settling on a ridge of hard ground beneath the mud.
Butt, J., came to the conclusion that there was no warranty by the wharfinger that the
place was safe for the vessel to lie in, and that the evidence negatived any express
representation by him that the place was suitable for the vessel, but the learned judge
held that as the use of the wharfingers' premises by the owner of the Moorcock required
that the vessel should take the ground when moored alongside the jetty, there was an
implied representation by the wharfinger that he had taken reasonable care to ascertain
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that the bottom of the river at the jetty was in such a condition as not to endanger the
vessel.
Finlay, Q.C. , and Hollams , for the appellants. There was no implied warranty that this
was a safe berth for the vessel to lie in, nor any implied representation that care had been
taken to ascertain the condition of the bottom of the river at the jetty. The owners of the
jetty were not bound to ascertain the state of the bed of the river, or to repair it, and no
duty was cast upon them towards the shipowner except that it may be conceded that they
ought not to allow a vessel to come there if they knew that there was a trap: Reg. v.
Williams. 2 There was no evidence of want of reasonable care. The wharfinger had no
reason to think that the place was not suitable, as another vessel of fully the same length
was lying safely at the jetty, and was shewn to the owner of the Moorcock at the time the
negotiations were going on with reference to the latter vessel coming there. The
wharfinger, as owner of the jetty, was only a licensee of the Thames Conservancy, in
whom the soil of the bed of the river was vested, and as the river is a public highway the
case is analogous to that of a warehouse adjoining a public road. The only duty cast upon
the owner of the warehouse would be not to invite a person to come to it if he knew that
it was in a dangerous state. [The case of the Mersey Docks Trustees v. Gibbs 3 was
referred to.] Feb. 25. Barnes, Q.C. , and W. S. Robson , for the respondent. The jetty could
not, in the ordinary course of business, be used without the vessel lying at it grounding at
low water. It must, therefore, be held to have been part of the contract that the owner of
the jetty had taken care to ascertain that the bed of the river adjoining the jetty was
reasonably safe for a vessel to lie on, or, at any rate, the shipowner was entitled to
warning if it was not safe: White v. Phillips. 4 [The following cases were cited: Curling v.
Wood 5 , Winch v. The Conservators of the Thames. 6 ]
Finlay, Q.C. , in reply.
LORD ESHER, M.R. In this case the appellants made an agreement with the respondent
for the use of their wharf and jetty in such a manner as to enable them to earn money
from the respondent. The use of their wharf involved the use of the river adjacent to the
front of their wharf, for the owner of a vessel such as the Moorcock could not use their
wharf without mooring that vessel alongside the jetty. It is a necessary and an immediate
step to the earning profit by the use of the wharf that the vessel should be moored to the
jetty. The appellants do not charge directly for the use of their wharf, but they cannot
charge anything to anybody, or, under the circumstances, earn anything until the vessel
moors itself to their jetty. She is moored to the jetty in order that the wharf may be used
for the loading and unloading of goods into and from the vessel, and the appellants get
paid for the use of their wharf by charging in respect of the goods that lie on and cross
their wharf.
Such a vessel as the Moorcock could not be moored to this wharf without taking the
ground at low water on every tide; therefore, in order that the wharf may be used so that
the appellants may earn profit, a vessel must be moored to their wharf, and at the front of
it, under such circumstances that she must take the ground at every tide. Now the owners
of the wharf and the jetty are there always, and if anything happens in front of their wharf
they have the means of finding it out, but persons who come in their ships to this wharf
have no reasonable means of discovering what the state of the bed of the river is until the
vessel is moored and takes the ground for the first time.
What, then, is the reasonable implication in such a contract? In my opinion honest
business could not be carried on between such a person as the respondent and such
people as the appellants, unless the latter had impliedly undertaken some duty towards
the respondent with regard to the bottom of the river at this place. If that is so, what is
the least onerous duty which can be implied? In this case we are not bound to say what is
the whole of the duty. All we have got to say is whether there is not at least the duty
which the learned judge in the court below has held does lie on them and to be implied as
part of their contract. The appellants can find out the state of the bottom of the river
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close to the front of their wharf without difficulty. They can sound for the bottom with a
pole, or in any way they please, for they are there at every tide, and whether they can see
the actual bottom of the river at low water is not material. Supposing at low water there
were two feet of water always over the mud, this would make no difference. Persons who
are accustomed to the water do not see the bottom of the water with their eyes, they find
out what is there by sounding, and they can feel for the bottom and find out what is there
with even more accuracy than if they saw it with their eyes, and when they cannot
honestly earn what they are desiring to earn without this, it is implied that they have
undertaken to see that the bottom of the river is reasonably fit, or at all events that they
have taken reasonable care to find out that the bottom of the river is reasonably fit for the
purpose for which they agree that their jetty should be used, that is, they should take
reasonable care to find out in what condition the bottom is, and then either have it made
reasonably fit for the purpose, or inform the persons with whom they have contracted that
it is not so. That I think is the least that can be implied as their duty, and this is what I
understand the learned judge has implied, and then he finds as a matter of fact that they
did not take reasonable means in this case, and in that view also I agree. I therefore think
the appellants broke their contract, and that they are liable to the respondent for the
injury which his vessel sustained.
I should add that I do not think any of the cases cited are authorities governing this
case. This decision goes a step beyond any of them.
BOWEN, L.J. The question which arises here is whether when a contract is made to let
the use of this jetty to a ship which can only use it, as is known by both parties, by taking
the ground, there is any implied warranty on the part of the owners of the jetty, and if so,
what is the extent of the warranty. Now, an implied warranty, or, as it is called, a
covenant in law, as distinguished from an express contract or express warranty, really is in
all cases founded on the presumed intention of the parties, and upon reason. The
implication which the law draws from what must obviously have been the intention of the
parties, the law draws with the object of giving efficacy to the transaction and preventing
such a failure of consideration as cannot have been within the contemplation of either
side; and I believe if one were to take all the cases, and they are many, of implied
warranties or covenants in law, it will be found that in all of them the law is raising an
implication from the presumed intention of the parties with the object of giving to the
transaction such efficacy as both parties must have intended that at all events it should
have. In business transactions such as this, what the law desires to effect by the
implication is to give such business efficacy to the transaction as must have been
intended at all events by both parties who are business men; not to impose on one side
all the perils of the transaction, or to emancipate one side from all the chances of failure,
but to make each party promise in law as much, at all events, as it must have been in the
contemplation of both parties that he should be responsible for in respect of those perils
or chances.
Now what did each party in a case like this know? For if we are examining into their
presumed intention we must examine into their minds as to what the transaction was.
Both parties knew that this jetty was let out for hire, and knew that it could only be used
under the contract by the ship taking the ground. They must have known that it was by
grounding that she used the jetty; in fact, except so far as the transport to the jetty of
the cargo in the ship was concerned, they must have known, both of them, that unless the
ground was safe the ship would be simply buying an opportunity of danger, and that all
consideration would fail unless some care had been taken to see that the ground was
safe. In fact the business of the jetty could not be carried on except upon such a basis.
The parties also knew that with regard to the safety of the ground outside the jetty the
shipowner could know nothing at all, and the jetty owner might with reasonable care know
everything. The owners of the jetty, or their servants, were there at high and low tide, and
with little trouble they could satisfy themselves, in case of doubt, as to whether the berth
was reasonably safe. The ship's owner, on the other hand, had not the means of verifying
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the state of the jetty, because the berth itself opposite the jetty might be occupied by
another ship at any moment.
Now the question is how much of the peril of the safety of this berth is it necessary to
assume that the shipowner and the jetty owner intended respectively to bear — in order
that such a minimum of efficacy should be secured for the transaction, as both parties
must have intended it to bear? Assume that the berth outside had been absolutely under
the control of the owners of the jetty, that they could have repaired it and made it fit for
the purpose of the unloading and the loading. If this had been the case, then the case of
The Mersey Docks Trustees v. Gibbs 7 shews that those who owned the jetty, who took
money for the use of the jetty, and who had under their control the locus in quo, would
have been bound to take all reasonable care to prevent danger to those who were using
the jetty — either to make the berth outside good, or else not to invite ships to go there
— either to make the berth safe, or to advise persons not to go there. But there is a
distinction in the present instance. The berth outside the jetty was not under the actual
control of the jetty owners. It is in the bed of the river, and it may be said that those who
owned the jetty had no duty cast upon them by statute or common law to repair the bed
of the river, and that they had no power to interfere with the bed of the river unless under
the licence of the Conservators. Now it does make a difference, it seems to me, where the
entire control of the locus in quo — be it canal, or be it dock, or be it river berth — is not
under the control of the persons who are taking toll for accommodation which involves its
user, and, to a certain extent, the view must be modified of the necessary implication
which the law would make about the duties of the parties receiving the remuneration. This
must be done exactly for the reason laid down by Lord Holt in his judgment in Coggs v.
Bernard 8 , where he says “it would be unreasonable to charge persons with a trust further
than the nature of the thing puts it in their power to perform.” Applying that modification,
which is one of reason, to this case, it may well be said that the law will not imply that
the persons who have not the control of the place have taken reasonable care to make it
good, but it does not follow that they are relieved from all responsibility. They are on the
spot. They must know that the jetty cannot be used unless reasonable care is taken, if not
to make it safe, at all events to see whether it is safe. No one can tell whether
reasonable safety has been secured except themselves, and I think if they let out their
jetty for use they at all events imply that they have taken reasonable care to see whether
the berth, which is the essential part of the use of the jetty, is safe, and if it is not safe,
and if they have not taken such reasonable care, it is their duty to warn persons with
whom they have dealings that they have not done so. This is a business transaction as to
which at any moment the parties may make any bargain they please, and either side may
by the contract throw upon the other the burden of the unseen and existing danger. The
question is what inference is to be drawn where the parties are dealing with each other on
the assumption that the negotiations are to have some fruit, and where they say nothing
about the burden of this kind of unseen peril, leaving the law to raise such inferences as
are reasonable from the very nature of the transaction. So far as I am concerned I do not
wish it to be understood that I at all consider this is a case of any duty on the part of the
owners of the jetty to see to the access to the jetty being kept clear. The difference
between access to the jetty and the actual use of the jetty seems to me, as Mr. Finlay
says it is, only a question of degree, but when you are dealing with implications which the
law directs, you cannot afford to neglect questions of degree, and it is just that difference
of degree which brings one case on the line and prevents the other from approaching it. I
confess that on the broad view of the case I think that business could not be carried on
unless there was an implication to the extent I have laid down, at all events in the case
where a jetty like the present is so to be used, and, although the case is a novel one, and
the cases which have been cited do not assist us, I feel no difficulty in drawing the
inference that this case comes within the line.
FRY, L.J. I agree. I will only add that the considerations which weigh much with me in
coming to the conclusion that there was the implication which the learned judge had relied
on, are that the Conservators were under no obligation to remove the saddle-back, or
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shingle, or stone, which did the injury, and that the defendants had the means of
examining the bottom of the river and neglected to do so.
Appeal dismissed.
Solicitors for appellants: Hollams, Son, & Coward.
Solicitors for respondent: T. Cooper & Co.
E. S. R.
1. Reported 13 P. D. 157.
2. 9 App. Cas. 418.
3. Law Rep. 1 H. L. 93.
4. 33 L. J. (C. P.) 33.
5. 16 M. & W. 628.
6. Law Rep. 7 C. P. 458; 9 C. P. 378.
7. Law Rep. 1 H. L. 93.
8. Ld. Raym. 909 (918); 1 Sm. L. C. 9th ed. 201 (216).
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