CAWOOD, WHARTON & CO., LTD. v. SAMUEL WILLIAMS & SONS, LTD (THE "CAWOOD III.")

[1951] 1 Lloyd's Rep. 350

ADMIRALTY DIVISION.

Before Mr. Justice Willmer, sitting with Commodare R. L. F. Hubbard, R.D., Elder Brother of Trinity House.

Negligence-Damage to barge-Bad berth - Onus of proof - Contract between barge-owners and wharfingers - Obligation upon barge-owners to have barges available for loading by wharfingers - Implied term - Duty of wharfingers - Warning notice exhibited at wharf - Effect - Contract between defendant wharfingers and plaintiff barge-owners whereby defendants agreed to collect anthracite by rail and tip it into plaintiffs' barges at defendants' jetty - Plaintiffs' barge Cawood III moored against boom at defendants' jetty, part loaded and left unattended over week-end - Barge found sunk - Evidence that hull was pierced - Allegation by plaintiffs that damage was caused by bolts protruding from top side of boom, which by some means had turned over on its side - Probabilities - Printed clause attached to letters forming contract stating that defendants "will not in any circumstances . . . be liable for any loss damage or detention whatsoever howsoever whensoever or wheresoever occasioned in respect of any goods entrusted to or carried or handled by the [defendants] . . ." - Implication that contract was subject to term that jetty was in safe and proper condition for plaintiffs' barges to lie at and that presence of boom liable to cause damage constituted breach of that term - Whether such implied term negatived by warning notice exhibited at jetty and providing: All ships, vessels, barges with or without the cargoes laden therein, are allowed to lie at or off these premises upon the express condition that they do so solely at their own risk and that the company will not be responsible for any damage or loss, loss of life, personal injury or accident howsoever the same may be occasioned and even if so occasioned The "Cawood III." Adm. 351 by the negligence or breach of duty of their servants or agents or other persons for whose acts they might otherwise be responsible and owners of ships, vessels, and barges agree to indemnify the company against any of the foregoing claims including all costs and expenses by whomsoever made.

Contention by defendants that plaintiffs had done business with them for a number of years, that warning notices had habitually been displayed, and that accordingly terms of such notice should be impliedly read into contract -Extent of duty owed by wharfingers - Casualty of an unusual nature - Whether risk should have been foreseen -Effect of warning notice, bearing in mind plaintiffs' obligation under contract to have barge available for loading at defendants' jetty - Nature of warning conveyed by notice.