This was a claim for the value of sugar damaged by sea water while in transit from Apia roadstead to Apia wharf. In January 1952, a quantity of sugar was consigned by the Sydney branch to the Apia branch of the plaintiff, and carried in the Waikawa, a ship belonging to and operated by the defendant. A number of endorsements were added to the bill of lading by a series of rubber stamps, one of these reading: 'To roadstead only - lighterage to be at risk and expense of consignee.'

The Waikawa arrived in Apia harbour on 6 February 1952, and the sugar was brought ashore during the early afternoon of 7 February. The method of conveying cargo from the roadstead to the shore was to load it at the ship's side into lighters which were then towed ashore by launch. The defendant was the lighterage contractor under licence from the High Commissioner. On the way ashore, 77 bags of sugar, which were then in possession of the defendant as lighterage contractors for carriage to the shore, were damaged by sea water. This sugar was condemned as unfit for consumption and was ordered to be dumped. The plaintiff's claim represents the value of the sugar destroyed.

Held: Judgment for the plaintiff.

Examination of the lighter after the sugar had been unloaded disclosed that there was sea water in it to a depth of 10 inches, due to the springing of a leak in the first seam, where the caulking had been displaced for some 2 or 3 feet on the port side. Evidence was given that when the lighter was almost fully loaded, and almost ready to start its journey to the shore, it suffered two or more heavy bumps against the side of the Waikawa. The inference is that these bumps caused the leak in the lighter, which had made previous trips ashore that same day without taking on any water. On 7 February the mean wind speed was 2.3 knots, and the highest gust, at 14 knots, did not occur until 18h55, some hours after the sugar was brought ashore. The operation of discharging cargo from the Waikawa into the lighters proceeded without interruption during the day, indicating that those responsible saw nothing in the weather conditions which justified even a temporary stoppage of the work.

The question of the seaworthiness of the lighter is more difficult to answer. It was inspected in September 1951, and it was reported that the hull was in good order, and with constant supervision should last indefinitely. No further careful inspection appears to have been made between that date and the afternoon of 7 February, though the foreman made a practice of briefly examining the lighters after they were baled out each working morning, and did so on the morning in question. It is possible that a weakness had developed, although it is difficult to say with certainty. The lighters are all strongly built, and the lighter in this case was no exception. To protect it from damage due to bumping against the hull of the ship being discharged or against the wharf, the lighter was furnished with stout wooden fenders, and in addition two old truck tyres were hung over each side of the craft.

Notwithstanding the steps taken to provide protection from damage arising from bumping against the side of the ship, it is clear that on 7 February damage did result, involving the ruin of the cargo being carried. Moreover, such damage was sustained when weather conditions were normal, or at least less severe than the lighters were expected at times to face. The definition of seaworthiness given in Carver on the Carriage the Carriage of Goods by Sea, 9th ed, pp 84-86 is as follows:

The ship must be fit in design, structure, condition and equipment to encounter the ordinary perils of the voyage ... . What is meant is that she must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage, having regard to all the probable circumstances of it. To that extent the ship-owner undertakes absolutely that she is fit; and ignorance is no excuse.

In Halsbury's Laws of England, 2nd ed, vol XXX, p 64, the requirements of unseaworthiness are set out as follows:

To render the ship seaworthy for the purpose of the voyage she must, at the time of sailing, be in a fit state, as to repairs, equipment, and crew, and in all other respects, to encounter ordinary perils of the voyage at the particular season in question. She must, therefore, be tight, staunch, and strong, and furnished with all tackle and apparel necessary for the intended voyage. Thus, there is a clear breach of this condition if, at the time of sailing, she is in a leaky state, or insufficiently ballasted, or if her sails are rotten, or boilers defective, or if her ground tackle is inefficient. Moreover, the condition is broken, although the ship may be in a present state of fitness at the moment of sailing if, by reason of a latent defect or internal weakness existing at that time, she will be rendered unfit in the future for the due completion of her voyage.

Applying these definitions, the Court is compelled to conclude that at the commencement of its voyage to the shore the lighter was not fit to encounter the ordinary perils of the voyage, and was accordingly unseaworthy at that material time. There is no evidence that the craft was called upon to face any unusual peril, or any weather conditions other than were normal for that time of year; in fact, there is direct evidence from the defendant's own witnesses to the contrary. As the lighter was unable to cope with normal conditions without sustaining damage of vital importance to the cargo, it was not seaworthy within the generally accepted legal definition of that term.

It is admitted that the defendant was, at all material times, a common carrier. The defendant is accordingly liable for all loss or damage which may happen to the goods carried, while they are in its hands as carrier, unless it is able to establish one or more of certain defences, of which the defendant sets up two: (1) that the loss or damage was due to an act of God; (2) that the express contract between the parties relieves the defendant of liability. It is to be observed, however, that the defendant is not entitled to rely on either of those defences if the loss or damage was due to the unseaworthiness of the ship - in this case lighter - when it commenced its voyage. The shipowner undertakes, when it accepts cargo for carriage by sea, that its ship will be seaworthy; and in the event of a breach of that condition it is liable for the resultant loss or damage.

The principle to be applied where an 'act of God' is pleaded was authoritatively stated by James LJ in Nugent v Smith (1876) 1 CPD 423, 444: 'A common carrier is not liable for any accident as to which he can show that it was due to natural causes, directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him.' In Pandorf v Hamilton 17 QBD 675, Lord Esher MR defines an act of God thus: 'in a mercantile sense, it means an extraordinary circumstance which could not be foreseen, and which could not be guarded against'.

Not only must the casualty have occurred independently of human action, but it must have been an event which the shipowner could not have avoided, or guarded against, by any means which it could reasonably have been expected to use. Here, the swell or surge in the harbour was no greater than normal. The likelihood of the lighter bumping against the ship's side had been foreseen. The necessity for providing against damage from such collisions had been fully recognised by the defendant and its servants. The defence based on an act of God must fail.

The defendant submits that it is relieved from liability by reason of the terms and conditions of the bill of lading under which the goods were shipped from Sydney, in particular the endorsement quoted earlier in this judgment, and cll 2 and 9 which are set out in full in the statement of defence. Much confusion has been caused in the argument and during the hearing of the case generally by a failure to appreciate the fact that the defendant appears in two capacities: that of the owner and operator of the Waikawa, and that of lighterage contractor. In so far as the Court is able to decipher the terms of the bill of lading under the mass of purple lettering plastered on the document by means of rubber stamps, it appears to represent a contract to carry the cargo from Sydney to Apia roadstead. It is a contract between the plaintiff and the defendant in its capacity as shipowner, and has no reference whatever to the further voyage of the cargo from Apia roadstead to the shore. But the plaintiff's claim concerns only the latter journey, which by the defendant's endorsement on the bill of lading is specifically exempted from the provisions of the original carriage contract from Sydney to Apia roadstead. It is thus unnecessary to decide whether the Carriers Act 1948 (NZ) applies to the contract evidenced by the bill of lading, or whether the Rules in the Schedule to the Carriage of Goods by Sea Act 1924 (Imp) (the Hague Rules) are to be incorporated therein, as in the document provided. No written contract was entered into by the parties in respect of the loading and carriage of the cargo from roadstead to shore.

There is thus no special agreement between the parties whereby the defendant is relieved of its common law liability as a common carrier in respect of the carriage of the cargo from the roadstead to the shore. The damage to the cargo was caused during this journey, and the event by reason of which the damage was sustained was not an act of God. Independently of the finding of unseaworthiness of the lighter, therefore, the defences raised fail, and the plaintiff is entitled to succeed.