In a number of reports, Bullarra was 'ordered' to return directly to Fremantle for repairs, discontinuing her role in the search for the missing Koombana. On the one hand need for repairs seems like a logical reason, but there is a tone underscoring the word 'ordered', suggesting that there was more to the instruction than met the eye. Bullarra, as we recall, made the seminal discovery of oil and greasy water an almost invariable marker of where a steamer had gone down. Were there issues relating to this? There must have been issues surrounding the decision to depart Port Hedland into cyclonic conditions. But there was one further, more practical reason to return directly to Fremantle:
6 April, 1912.
The Bullarra has been ordered to
proceed to Onslow to meet the
Moonta for coal, thence she will
come direct to Fremantle for repairs.
She is due to reach the port on next
Friday.
The West Australian, Perth, Tuesday 15 April, 1913.
CATTLE OWNER'S CLAIM.
ACTION AGAINST SHIPPING CO.
VERDICT FOR THE PLAINTIFF.
INTERESTING JUDGMENT.
In the Supreme Court yesterday Mr. Justice
Burnside delivered his reserved judgment in
connection with the action in which Leslie
Gillespie, station owner, of Hillside Station.
near Marble Bar, sued the Adelaide Steamship
Co. for damages in respect to losses sustained
in a shipment of cattle from Port Hedland in March,
1912.
Plaintiff was represented by Mr. R. R. Pilkington, K.C.,
and Mr. Forman (instructed by Messrs. Gawler, Hardwick,
and Forman), and defendants by Mr. M. L. Moss, K.C.,
and Mr. J. Dwyer (instructed by Messrs. Moss and
Dwyer).
His Honour stated that on March 20,
1912, the s.s. Bullarra, owned by the
defendant company, left Port Hedland
on a voyage to Fremantle, having on
board a consignment of 191 head of
cattle, the property of the plaintiff. In
ordinary circumstances the voyage
occupied approximately 61 days. The
cattle were being carried under the terms
of a bill of lading partly printed and partly
in writing, and subject to conditions
endorsed thereon. After leaving Port
Hedland the steamer encountered a
hurricane and arrived at Cossack on
March 23 having sustained some damage
and considerable loss among the cattle.
On March 26 she again left Cossack and
proceeded to Broome, where she arrived
on March 29. Next day 132 of the cattle
were transhipped to the s.s- Gorgon,
and on April 8 120 were landed at
Fremantle and delivered to the plaintiff's agent.
Bullarra's consignment of 191 head of cattle was reduced to 120 - 71 less - by the time the consignment reached Fremantle. The sequence of events suggests that the battered Bullarra made Cossack three days late directly due to the cyclone. By this stage 59 head of cattle had perished. No attempts were made to land cattle at Cossack, but rather, Bullarra set off in search of the Koombana with the surviving cattle, which must have been held in appalling conditions, given the degree of damage sustained during the cyclone. Nine full days later after departure from Hedland, Bullarra arrived at Broome and transshipped the surviving cattle onto the SS Gorgon. The state of these wretched animals must have been such that a further 12 were to perish before reaching Fremantle.
When they were sold they realised £4 7s. 6d.
per head, equal to 2td. per lb. on an average
of 381 lb., when dressed as beef. The plaintiff,
who owned a station at Hillside near Marble Bar,
claimed damages from the defendants in respect
of the loss which he alleged he sustained in
respect of the cattle, and which loss he alleged
was attributable to a breach of the contract entered
into between himself and the company. He alleged
that the company abandoned their contract
and changed the voyage of the Bullarra, and
consequently he was entitled to damages.
The defendants denied that they abandoned the
contract or changed the voyage, or that the
plaintiff had suffered any loss for which in law
they could be held liable.
Clearly the decision by Captain Upjohn to depart Cossack in search of the sister ship Koombana was a 'change in the voyage' of the Bullarra beyond the effect of the cyclone.
They further alleged that if the Bullarra did
deviate from the usual course of the voyage
it was necessary for the safety of the ship and
the preservation of the cattle, and was authorised
by the terms and conditions of the bill of lading,
and that they were not responsible for the
consequences thereof.
Neatly side-stepping the glaring issue of subjecting the cattle to a further 3 days at sea, over and above 3 days in port, heading in the opposite direction to Fremantle (to Broome), in search of the Koombana.
In giving his judgment it was firstly necessary
for him to determine the nature of the contract,
which primarily was to carry the cattle from Port
Hedland to Fremantle and there deliver. The
conditions on the bill of lading exempted the
shipowner from all liability in respect of the
carriage of goods during the voyage, and in
the construction of the contract thus evidenced,
the exemptions from the obligations were always
to be construed strictly, and in cases of uncertainty
against the person for whose benefit they were
introduced.
We have seen this tendency in previous posts favouring the coastal shipowners at the expense of shippers.
A shipowner was justified irrespective of the
exemptions contained in the bill of lading
in making a departure from the usual
course of the voyage contemplated by the
contract, in the interests of the ship and
her cargo, if in the opinion of the master
it was necessary and prudent to do so.
In the exercise of his discretion the master
was bound to consider every material
circumstance, danger, distance, accommodation,
expense, time, and so forth, and the shipowner
was not responsible for the consequences of such
a departure merely because an unfortunate result
might indicate an error of judgment on the part of the
master. A departure from the usual course of the
voyage might be so great as to amount to an entirely
different voyage and to indicate the intention of the ship
owner to abandon the original voyage.
The priority was to find the missing Koombana and it was Captain Upjohn's decision - 'necessary and prudent to do so'. No doubt it was not long before the management of the Adelaide Steamship Company received mutterings from the cattle owner, which might have been a factor prompting the recall of the Bullarra, and the transshipment to the SS Gorgon.
Where that was the case the liability of the
ship-owner in respect of any loss thereby
occasioned was to be ascertained under the
ordinary law relating to carriers by sea,
irrespective of any limitations contained in
the terms and conditions of the original
contract. If the goods were ultimately
delivered at the place of destination, the ship
owner, nevertheless. was liable for any loss
occasioned by delay or otherwise, notwith
standing any stipulation or conditions in the
original contract. Guided by those principles
he had to determine whether, on the facts of
the case, there was a departure only
from the usual course or voyage, and for a
proper purpose, or whether the whole course
of the voyage was so changed as to amount
to an abandonment of the original voyage.
The search for Koombana was clearly an abandonment of the original voyage! An understandable one, but abandonment nonetheless.
It was not suggested that the Bullarra was
unseaworthy at the port of her original
departure, but it was contended that on her
arrival at Cossack she had become in that
condition. He was satisfied from the testimony
of Captain Upjohn, the master, and of Captain
Crossley, the then first officer, that no prudent
seaman would have thought of continuing the
voyage to Fremantle in the condition that the
Bullarra was in when she arrived at Cossack.
She had lost her funnel, and her compasses
were seriously affected, whilst the cattle
fittings below were completely demolished.
The ordinary course of the voyage to Fremantle
was beset with danger from rocks and sunken reefs,
and at that period the absence of lights, and from
the North-West Cape to Fremantle at that time of
the year the state of the sea, which might reasonably
be expected to be encountered, would be such as
to render the absence of efficient cattle fittings below
a source of great danger to the stock carried.
But none of this prevented the Bullarra departing Cossack for a three day search for the Koombana heading in the opposite direction to Fremantle!
It was alleged also that the damage done to the engines,
tanks, and pumps was so serious as to render it impossible
to proceed on the voyage with safety, whilst the shortage
of fresh water and fodder would have endangered the lives
of the remaining cattle. He thought that the master was
justified in delaying at Cossack to ascertain the condition
of his vessel, and, if necessary, to make such a departure
from the ordinary course of his voyage as he deemed
necessary in the interests of the ship and cargo, and that
the defendant company was not responsible for any loss
occasioned thereby.
It beggars belief that the A.S.C. could claim all of the above and yet Captain Upjohn went to sea in a battered steamer with injured cattle in search of the Koombana, during a period of unsettled weather!!
But, in determining what was the purpose for which the
voyage was made from Cossack to Broome he had not
been able to accept without qualification the suggestion
that it was for the sole purpose of making the ship seaworthy.
Didn't take much to fathom this one!
He was not satisfied that the damage to the engineroom
and fittings was so serious as to be beyond the competency
of the engine-room staff to remedy. Neither in his opinion
was the quantity of coal, 220 tons, insufficient for the
remainder of the journey, and he was not convinced
that whatever difficulty existed with regard to water and
fodder it presented an insurmountable obstacle to
proceeding on the journey south.
The priority, for which there might have been subsequently significant regret, was for Bullarra to find her lost sister ship. To hell with the cattle bellowing below!!
There was no satisfactory evidence of any inquiry
having been made with regard to the possibility of
replenishing the deficiency in those supplies on the
way down, either at intermediate ports, at from passing
steamers, and the absence of such inquiry was, in his
opinion best explained by the telegrams which passed
between the defendant company and their agent and
the master, and the subsequent movements of the
steamer.
He concluded that the search for the SS Koombana
was the main object which determined the movements
of the Bullarra thenceforward. The Koombana, which
was also owned by the defendant company, was four
days overdue on the journey from Port Hedland to
Broome. and her absence was causing grave anxiety.
The timely arrival of the s.s. Gorgon at Broome enabled
the defendant company so far to complete their contract
with regard to the cattle as to secure their ultimate delivery
at Fremantle.
The truth at last!
It was clear that the Bullarra was intended
to and did continue her search for the
Koombana, and that the original voyage
was so completely changed as to amount
to an abandonment. Therefore, in the opinion
of his Honour the plaintiff was entitled to such
damage as he might have sustained by
reason of the change of the voyage, the
exceptions in the bill of lading being in no
way applicable to such circumstances. It
was necessary for him, his Honour, to
ascertain what was the condition of
the cattle at the port of shipment, then
at Cossack Roads on March 23, and what
would have been their condition at Fremantle
on April 2, when they would probably have
reached their destination had the voyage not
been changed.
In point of number 191 were shipped and nine
were consumed on board ship: for those nine
the defendants admitted their liability. The
hurricane accounted for 50, and 132 were
transhipped to the Gorgon. Twelve died on
the way down, and 120 were delivered. He
concluded that 38 were killed outright during
the hurricane, and 12 died before the Bullarra
reached Broome from injuries received during
the storm.
The nine consumed must surely have come from those that perished in the ordeal. I cannot imagine a further nine being sacrificed to keep the crew well fed.
The nine consumed must surely have come from those that perished in the ordeal. I cannot imagine a further nine being sacrificed to keep the crew well fed.
He was of opinion that had the Bullarra remained
at Cossack till March 28 and then come slowly
south they would still have succumbed, so that
their loss was entirely due to the act of God.
Setting out in search of the Koombana was certainly not going south 'slowly'..
For the loss of those 50 cattle the defendant
company could not be held liable. Then there
remained the number put on board the Gorgon
at Broome. The evidence was that they had much
recovered from the effects of the hurricane when
they arrived there.
In battered cattle pens?? I doubt it!! 12 had died for Pete's sake - hardly a testimonial for 'recovery'.
They had however to come back over the journey,
and he thought that their extended stay on board
the vessel in those waters eventually accounted
for the 12 that died on the Gorgon. In those
circumstances he considered that the defendants
should be held responsible for the loss of five out
of the 12. Then there arose the question as to the
probable condition in which the Bullarra would have
landed the cattle at Fremantle as compared with the
actual condition of the stock when landed.
I have the distinct impression that Courts favoured the powerful coastal shipping companies.
After careful consideration he had concluded
that except for the extended stay in the tropics
the cattle would have averaged on landing about
450 Ib., and it was on that basis that he estimated
the defendants liability. It was necessary finally to
determine the probable price that would have
been obtained for the cattle. It was indisputable
that cattle that were in good condition realised a
higher price per lb. than those in a poor state, and
he did not consider a 450 Ib. average as being of
the former class. It was suggested that the ruling
price at the time the cattle should have been
delivered was 6d. per lb., but in his opinion that
price was the result of the non-arrival of those
cattle. He thought 4d. per lb. would be a fairer
basis upon which to determine the defendants'
liability. Irrespective of their weight it must be
borne in mind that the effects of the hurricane
must have been a considerable factor in
determining the quality of their flesh as beef,
and the fact of them having received a
rough handling would certainly tend to retard
any improvement in the quality of the meat.
He therefore considered that 4d. per lb. would
be nearer the price they might reasonably have
been expected to realise in the circumstances.
For the 134 cattle therefore he estimated
that the plaintiff would have received 4d.
per lb on an average of 450 lb., and for
that amount, subject to certain additions
and deductions, he was, in his Honour's
opinion, entitled to judgment. The necessity
for the supply of extra fodder arose out of
the effects of the hurricane. A large quantity
of the fodder put on board was lost during
the storm, and the defendants were entitled
to charge for the extra fodder obtained, and
the price charged appeared to be unobjectionable.
It was alleged that an overcharge was made
in including the fodder for the cattle detained
by the Bullarra, but seeing that the plaintiff got
the benefit of the price realised by the average
weight of 450 lb. at Fremantle, he did not think
that he could claim a deduction for the fodder. A
charge had also been made for extra wages, but
in his opinion the defendant company was only
liable for such portion of that charge as accrued
in respect of the cattlemen who came down in the
Gorgon. With regard to the claim for extra insurance,
he would allow the amount paid.
He therefore found that the plaintiff was entitled to
judgment for the difference in the price which the
cattle actually realised and the price which in his
opinion they would have fetched in other circumstances.
He considered that they would have realised £1,005,
whereas £525 only was obtained, a difference of £480.
To that must be added the sum paid for extra wages,
£5 18s.; extra insurance, £5 2s. making a total of
£493 10s. From that amount the sum of £79 5s.
for extra fodder supplied should be deducted. That
left a balance of £414 5s., which in his opinion
represented the total amount of the loss
which the plaintiff had suffered by reason of
the abandonment of the contract by the
Bullarra.
The amount paid into Court by the defendants
would be refunded. Judgement therefore would
be for the plaintiff for £414 5s. and costs.
A stay of execution for 14 days was granted,
the costs of the action to be paid to the plaintiff's
solicitors on the usual undertaking.
What a fiasco!! Hard to believe that the costs were handed to the plaintiffs, who had won the case. A 'stay of execution' about sums it all up.
Circumstances and finances were unraveling for the Adelaide Steamship Company after the loss of the Koombana and quite possibly part of the attempt to contain damage and escalating financial loss was to recall Bullarra without any further delay or complications.
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| SS Bullarra (courtesy Flotilla Australia) |
courtesy Trove
