SMITH, HOGG & CO., LTD. v. BLACK SEA & BALTIC GENERAL INSURANCE COMPANY, LTD.

(1939) 64 Ll L Rep 87

COURT OF APPEAL.

Before Lord Justice MacKinnon, Lord Justice du Parcq and Mr. Justice Macnaghten.

Charter-party-Unseaworthiness - General average-Charter of vessel for voyage from Soroka to Garston-Timber cargo (including deckload) loaded at Soroka, vessel sailing with list of five degrees-Decision to take on board more bunkers at Stornoway - Arrival at Stornoway with list to starboard of 15 deg.-16 tons of bunkers loaded, causing vessel to heel over to port - Vessel beached to prevent her sinking-Part of cargo lost and damaged-Claim by shipowners for general average contribution from cargo - Counterclaim by defendant insurance company (as guarantors for cargo) for loss and damage to cargo-"The shipowner shall not be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the shipowner to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds and all other parts of the ship in which goods are carried fit and safe for their reception, carried and preservation. The shipowner shall not be responsible for loss or damage arising or resulting from: Act, neglect, or default of the master, mariner, pilot, or the servants of the shipowner in the navigation or in the management of the ship" -Whether due diligence exercised by shipowners-Onus of proof-Evidence of instability-Cause of loss.