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

(1940) 67 Ll.L.Rep. 253

HOUSE OF LORDS.

Before Viscount Maugham, Lord Atkin, Lord Wright, Lord Romer and Lord Porter.

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 5 deg.- Decision to take on board more bunkers at Stornoway-Forepeak pumped out on entering Stornoway to improve steering - Arrival at Stornoway with list to starboard of 15 deg. - Sixteen 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, carriage 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.