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Zittrain Torts Playlist Spring 2013

In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd.

Headnote

Should defendants be directly liable for their negligence, even if the type of damage was not reasonably foreseeable? Stevedores (dockworkers) employed by the defendant accidentally knocked over a wooden plank while moving cargo on plaintiff's ship. The fallen plank somehow created a spark, which ignites the ship's flammable cargo. Plaintiff's entire ship is destroyed as a result.

1

In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd.

Court of Appeal, 1921. [1921]. 3 K.B. 560, [1921] All E.R. 40.

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[The owners of the ship Thrasyvoulos sought to recover damages from the defendants who chartered the ship. The contract of charter was read to hold the defendant charterers responsible for damage caused by fire due to their negligence. Dockworkers [#7479]Stevedores, for whose conduct the defendants were responsible, were moving benzine from one hold to another by means of a sling. The stevedores had placed wooden boards across an opening above one hold to make a temporary platform to facilitate the transfer. "When the sling containing the cases of benzine was being hoisted up, owing to the negligence of the stevedores the rope by which the sling was hoisted or the sling itself came in contact with the boards, causing one of the boards to fall into the hold, and the fall was immediately followed by a rush of flames, the result being the total destruction of the ship."

3

The case was heard by arbitrators who found "that the fire arose from a spark igniting petrol vapour in the hold; that the spark was caused by the falling board coming into contact with some substance in the hold; . . . [and] that the causing of the spark could not reasonably have been anticipated from the falling of the board though some damage to the ship might reasonably have been anticipated." Damages were set at almost £200,000.

4

Subject to the court's opinion on the law, the arbitrators decided that the owners were entitled to recover the full loss from the charterers. The court was required to accept the arbitrator's findings. Although the case arose in the contract context, none of the three opinions mentions this point, and all rely on tort cases in their analyses.]

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BANKES, L.J.

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. . . According to the one view, the consequences which may reasonably be expected to result form a particular act are material only in reference to the question whether the act is or is not a negligent act; according to the other view, those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable. Sir F. Pollock in his Law of Torts, 11th ed., pp. 39, 40, refers to this difference of view, and calls attention to the fact that the late Mr. Beven, in his book on Negligence, supports the view founded on Smith v. London and South Western Ry. Co. . .

7

In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendant's servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellant's junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote.

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. . .

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For these reasons I think that the appeal fails, and must be dismissed with costs.

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SCRUTTON, L.J.

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. . .

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The second defense is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. . . To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. once the act is negligent, the fact that its exact operation was not foreseen is immaterial. . . In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.

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Appeal dismissed.

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[The concurring opinion of WARRINGTON, L.J. is omitted.]