Southport Corp v Esso Petroleum Co Ltd [1954] EWCA Civ 5

The tanker Inverpool stranded in the Ribble estuary. To refloat her, the master discharged about 400 tons of oil, which polluted Southport Corporation’s foreshore and Marine Lake. The Court of Appeal majority held the shipowners liable in public nuisance and negligence; the master was not personally liable.

Facts

The defendants owned the small steam tanker “Inverpool”, commanded by the second defendant, Captain McMeakin. On 3 December 1950 she left Liverpool with 736 tons of heavy fuel oil for Preston. After waiting at the Nelson Buoy for the tide, she proceeded towards the Ribble channel in rough but navigable weather.

Between the Gut Buoy and the Wall End Buoy, the vessel shipped two or three very heavy seas. Shortly afterwards her steering became erratic, sheering several points to port and starboard. At about 15.05 the engineer reported two violent blows on the propeller, sounding like metal hitting metal, while the stern was afloat mid-channel.

After passing Salter’s Buoy the vessel took a heavy sheer to starboard and grounded on the revetment wall, lying at right angles across it with her stern still in the channel. Attempts to go astern caused severe vibration, suggesting the propeller was fouling a hard object. The master considered the ship in extreme danger of breaking her back, with probable loss of life and the vessel.

To lighten her and get her off the wall, the master began discharging fuel oil from No. 1 tank at 15.25, later also from No. 3 tank. In total, over 400 tons were jettisoned. The ship eventually came off the wall and grounded on sand, later being refloated and surveyed. The survey revealed significant hull damage, a badly bent and fractured stern frame, and a broken propeller blade, with the others damaged.

The discharged oil was carried by the tide and deposited on Southport Corporation’s foreshore and into the Marine Lake. The deposit extended about 7½ miles, up to several inches thick and up to 100 feet wide in places. The Corporation had to close the Marine Lake and parts of the foreshore and incurred substantial clean-up costs.

Southport Corporation sued the shipowners and master, alleging that the oil discharge was a trespass or nuisance and also that it was caused by negligence, particularly negligent navigation and the decision to enter the channel with defective steering and to discharge the oil.

Devlin J dismissed the claim, holding that there was no proven negligence in navigation and that the captain’s decision to jettison oil was justified by necessity. He concluded that a defect in the steering, probably caused by a fractured stern frame, was not shown to be attributable to fault.

Issues

1. Nature of the cause of action

The Court of Appeal considered whether the claim properly lay in trespass to land, private nuisance, public nuisance, or negligence, and how the characterisation affected the burden of proof.

2. Trespass to land

The question was whether discharging oil into the estuary, later carried by the tide onto the Corporation’s land, amounted to a direct trespass.

3. Private nuisance

The court examined whether use of a ship at sea, rather than use of land, could ground an action in private nuisance.

4. Public nuisance and burden of proof

The main issue was whether discharging 400 tons of oil into the estuary constituted a public nuisance and, if so, whether the defendants had to justify it by proving unavoidable necessity, including showing that the grounding and steering failure occurred without their fault.

5. Negligence, res ipsa loquitur and the “Merchant Prince” rule

The court considered whether the unusual stranding and steering failure gave rise to an inference of negligence under the doctrine of res ipsa loquitur, and whether the principle from the collision case The Merchant Prince shifted the legal burden to the defendants to prove inevitable accident.

6. Duty of care to persons on shore

The court addressed whether those responsible for a ship owe a duty of care to owners and occupiers of adjacent shores.

7. Liability of owners and master

The final issue was whether liability, if any, attached to the shipowners, the master, or both.

Judgment

Characterisation of the claim

Denning LJ rejected trespass and private nuisance as the proper bases. Trespass required a direct physical act on the plaintiff’s land, whereas here the oil was discharged into the estuary and only consequentially reached the foreshore. Private nuisance required use of land; the defendants were using a ship at sea, not land.

He held that the discharge of a noxious substance such as oil into the sea, in circumstances where it was likely to be carried onto beaches to the prejudice and discomfort of Her Majesty’s subjects, amounted to a public nuisance at common law. A person suffering special damage beyond that of the general public, such as Southport Corporation with its foreshore and Marine Lake, could sue for damages.

Denning LJ stated that once public nuisance and causation were proved, the legal burden shifted to the defendant to justify or excuse the interference. The defendants sought to rely on necessity, asserting that jettisoning oil was required to save lives and the ship when she was on the revetment wall, but Denning LJ emphasised that no one can rely on a necessity produced by his own default. The defendants had to prove that the necessity was unavoidable and that they had committed no negligence giving occasion to it.

Failure of steering and unexplained defect

The evidence showed that the vessel’s steering had behaved normally up to the point when she shipped heavy seas; thereafter it became erratic. The lower court had found that a fractured stern frame caused loss of control, but could not identify how or when the fracture occurred, beyond excluding the heavy seas themselves as a sufficient cause if the frame were sound.

Singleton LJ viewed the grounding on the revetment wall as an unusual accident unlikely to occur if proper care were taken, particularly as other vessels completed the passage safely in the same conditions. He applied Chief Justice Erle’s test in Scott v London and St. Katherine’s Docks Co:

“There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

He also cited Lord Justice Bucknill in The Llanover, who said:

“It is not sufficient for a ship to say: ‘My steering gear has jammed and therefore I can do nothing.’ I think the burden is cast on her of showing that the jamming could not have been avoided by the exercise of reasonable care and skill on her part, or at least that she used all reasonable care and skill to prevent the jamming of the gear, and that it might reasonably have jammed for a cause which they could not have prevented by the exercise of reasonable care and skill.”

Singleton LJ held that, on the facts, there was evidence pointing to negligence in relation to the condition of the stern frame or sternpost. The defendants had produced no survey history or evidence of inspection, and no convincing explanation consistent with due diligence. In his view the plaintiffs had given evidence pointing to negligence which had not been answered.

Denning LJ developed this analysis both in nuisance and negligence. On public nuisance, he treated the grounding and discharge as akin to trespass in their effect on the burden of proof. The defendants could only avoid liability by proving that the discharge was an unavoidable necessity arising “utterly without [their] fault” and that they had committed “no negligence to give occasion to the hurt”, drawing on cases such as Weaver v Ward, Dickens v Watson, Tarry v Ashton, Wringe v Cohen and Sadler v South Stafford Tramways.

On negligence, Denning LJ applied the rule in The Merchant Prince. Where a moving ship collides or runs aground in circumstances where, if in proper control, she ought to keep clear, the legal burden is on her to prove inevitable accident or to show that any defect (such as jamming of steering gear) occurred without fault and could not have been prevented by reasonable care and skill. He considered this principle applicable more generally to vehicles (such as lorries or horse-drawn carts) that go out of control.

He concluded that the Inverpool’s steering should not have failed and that the defendants had not shown that the fracture of the stern frame occurred without their negligence, whether through latent defect or lack of proper survey and inspection. The failure to explain the defect in a manner consistent with diligence meant that the defendants had not discharged the burden upon them.

Res ipsa loquitur

Denning LJ added that even if the legal burden technically remained on Southport Corporation throughout, the doctrine of res ipsa loquitur applied. The steering failure and subsequent grounding were events which, in the ordinary course, would not have happened if proper care had been used in managing and maintaining the vessel. In the absence of an adequate explanation, negligence should be inferred.

Pleadings and scope of negligence

The defendants argued that they faced only an allegation of negligent navigation by the master, not negligent inspection or maintenance by the owners. Devlin J had been influenced by that view. Denning LJ disagreed, holding that the plaintiffs had made out a prima facie case of negligent navigation by showing the vessel’s grounding on the wall, and that the defendants themselves had ambiguously pleaded that the propeller had struck “some object”, without disclosing the fractured stern frame.

Denning LJ noted that in The Merchant Prince the pleadings had also only alleged negligent navigation, yet the owners were held liable because they failed to prove inevitable accident regarding the steering defect. He concluded that omissions in the plaintiffs’ pleadings could not avail defendants whose own reticence had concealed material facts.

Duty to persons on shore

Singleton LJ expressly rejected the submission that shipowners owe no duty to persons on shore:

“There is a duty to act reasonably — in other words, a duty not unnecessarily to do an act which any reasonable person in charge of a ship would know to be likely to cause injury to those on shore.”

On his view, if the defendants’ negligence in relation to the vessel’s condition or management led to the necessity to discharge oil, they could not rely on necessity as a defence, and were liable in negligence.

Nuisance and trespass defences

Singleton LJ considered that, even if the claim were framed in nuisance or trespass, a defence of necessity would in principle apply, but not where the necessity flowed from the defendants’ own negligence. He chose, however, to decide the case on negligence.

Liability of owners and master

Devlin J had expressly acquitted the master of negligence in navigation. The Court of Appeal majority accepted that there was no personal negligence on his part on the pleaded issues. No distinction had been drawn at trial between the owners and the master, but Singleton LJ indicated it was preferable that judgment be entered against the owners only.

On the final application, the court allowed the appeal as against the owners, Esso Petroleum Co Ltd, entering judgment for the plaintiffs with damages to be assessed, but dismissed the appeal as against the master, McMeakin.

Dissent

Morris LJ dissented. He accepted that negligence would ground liability and that negligence would also defeat any reliance on necessity. However, he emphasised that the plaintiffs had themselves chosen to frame the case as one of negligent navigation, management and control by the master, and had not alleged that the vessel was ill-found when she sailed.

Reviewing the evidence, Morris LJ agreed with Devlin J that the captain’s decision to jettison oil when stranded on the wall was justified, and that entering the channel after the steering first became erratic was not shown to be negligent. He considered it a reasonable inference that the damage to the stern frame and subsequent steering failure were caused in some way by the heavy seas and conditions encountered, possibly by contact with the bed of the channel, rather than by any prior defect known or discoverable by reasonable care.

He distinguished The Merchant Prince on the basis that there a moving ship had collided with a stationary vessel in broad daylight, raising a clear prima facie case of fault and pleading of inevitable accident by the defendants. In the present case, the litigation had from the outset proceeded on a different footing, with the plaintiffs specifying particular respects in which they alleged negligent navigation by the master. Those allegations had been fully investigated and rejected. In his view, it was not fair or correct to hold that the defendants failed because they had not disproved some other form of negligence not alleged. He would have dismissed the appeal and upheld Devlin J’s decision.

Implications

The decision is an important authority on several points:

• Discharge of oil into the sea in circumstances where it is likely to foul beaches can constitute a public nuisance at common law. Persons suffering special damage, such as coastal authorities, can bring civil actions to recover clean-up costs.
• In public nuisance (and, by analogy, in certain negligence cases such as ships or vehicles going out of control), once the nuisance or dangerous occurrence is shown and linked to the defendant, the legal burden can shift to the defendant to prove unavoidable necessity or inevitable accident. Mere assertion that machinery failed (e.g. steering gear) is insufficient without proof that reasonable care and skill could not have prevented the failure.
• The doctrine of res ipsa loquitur applies where a vessel, under the defendant’s management, grounds or loses steering in circumstances where such accidents do not ordinarily occur with proper care. Failure to provide a convincing, non-negligent explanation justifies an inference of negligence.
• Shipowners and those responsible for ships owe a duty of reasonable care not to cause foreseeable injury to coastal landowners and occupiers by acts such as unnecessary discharges of oil. Necessity may excuse emergency measures, but not where the emergency was created by the defendant’s own fault.
• The case illustrates how pleading strategies can interact with the allocation of the burden of proof. Although Morris LJ warned against expanding defendants’ obligations beyond the plaintiffs’ pleaded case, the majority applied broader principles derived from collision and nuisance authorities to shift the burden to shipowners on matters within their peculiar knowledge, such as survey and maintenance history.

Overall, the case strengthens the ability of coastal authorities and landowners to recover damages from shipowners whose vessels, through unexplained failures, pollute adjacent shores, and clarifies the relationship between public nuisance, negligence, and the doctrines of inevitable accident and res ipsa loquitur.

Verdict: The Court of Appeal (Singleton and Denning LJJ; Morris LJ dissenting) allowed the appeal against the shipowners, Esso Petroleum Co Ltd, and entered judgment for Southport Corporation with damages to be assessed, holding the owners liable. The appeal against the master, George McMeakin, was dismissed.

Source: Southport Corp v Esso Petroleum Co Ltd [1954] EWCA Civ 5