The Star Ferry Co Ltd v. The Owners of the Ship or Vessel "Argonaut" (Greek Flag) and Another

HCAJ000150/1979

Coram: Barker, J.

Date of Judgment: 22nd December, 1980.

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JUDGMENT

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1. On the 2nd August 1979 Typhoon Hope passed over Hong Kong. It caused 12 deaths, injured 260 people and wreaked widespread damage to property. Its approach was monitored from its development as a weak tropical disturbance on the 25th July 1979 about 180 nautical miles south of Guam. Thereafter, its track was followed by the Royal Observatory, and extensive warning of its course and progress was given. The Stand-by Signal No. 1 was hoisted at 3.30 p.m. on the 1st August 1979 and the Strong Wind Signal No. 3 was hoisted at 10.00 p.m. on the same day. The Storm Signal No. 8 was hoisted at 7.00 a.m. on the 2nd August 1979 to give warning of the imminence of gales. The Increasing Gale Signal No. 9 was hoisted at 12.35 p.m. on the same day, and the Hurricane Signal at 1 p.m. Between 2 p.m. and 3 p.m. gusts of 108 knots were recorded at Star Ferry Pier, and of 123 knots at Tate's Cairn. The eye of the typhoon passed over Hong Kong, and it was the most severe to affect the Colony since Typhoon Rose in 1971.

2. The m.v. Argonaut, 10,335 gross tons, had been on buoy A35, but on the 1st August 1979 the Marine Department served a removal order, requiring that the ship be removed to buoy A23, which was a typhoon buoy, an order with which the Argonaut complied.

3. At 12.50 p.m. on the 2nd August 1979, at which time there were very heavy seas and more than gale force winds, the port anchor chain, which had been made fast to buoy A23, broke. The starboard anchor was slackened and the port anchor was connected to the port anchor chain. The ship's engines were used - at times at full speed, but the ship dragged its anchors because of the irresistible force of the exceedingly high winds, and eventually struck the Ocean Terminal pier, thereafter the eastern and western arms of the Star Ferry pier, causing considerable damage thereto, the cost of the repairing of which is the subject of this action and eventually coming into contact with the Kowloon Public pier. All this happened at a time when the strength of the wind was at its maximum.

4. This action is concerned to fix the responsibility for the cost of the repairs necessitated by the aforesaid damage. Paragraph 11 of the Schedule to the Star Ferry Company (Services) Ordinance provides:

"The Company shall at its own expense maintain and keep in repair the piers, and carry out any alterations which may be required by the Company and approved by the Director of Public Works from time to time, Provided that the Company shall not be responsible for the cost of repairs due to Act of God, civil commotion war or latent defects, but the onus of proving the cause and extent of the damage shall rest upon the Company".

5. In reliance on this proviso the Plaintiffs claimed for the cost of the repairs against the Attorney General, whose initial reaction was that the Government was not liable (a) because the damage was not due to an Act of God and (b) because the damage was caused by the negligence of the master and crew of the Argonaut. In consequence the present action was brought, in which the Plaintiffs claimed against the Owners of the Ship Argonaut in negligence, and against the Attorney General.

6. However, it has been conceded by the Attorney General - a concession which was repeated before me - that there was no negligence on the part of the owners, master and crew of the m.v. Argonaut, and in consequence the Plaintiffs discontinued against the Owners.

7. Therefore the sole question which falls now to be determined is whether the repairs to the Star Ferry pier are "due to Act of God". It is conceded by the Attorney General that if the repairs are due to Act of God, the Government is liable to indemnify the Plaintiffs for the cost thereof.

8. What then is an Act of God? In Mouse's Case⁽¹⁾, it was held that a great tempest was an Act of God, but no definition of the term was attempted. Similarly, in Amies v. Stevens⁽²⁾ the Court decided that a sudden gust of wind constituted an Act of God. The first definition seems to have been assayed by Lord Mansfield in the case of The Company of the Proprietors of the Navigation from the Trent to the Mersey v. Wood⁽³⁾ when he said:

"The act of God is natural necessity, as wind and storms, which arise from natural causes, and is distinct from irresistible accident".

In the case of Forward v. Pittard⁽⁴⁾ Lord Mansfield said at page 33:

"Now what is the act of God? I consider it to mean something in opposition to the act of man; for everything is the Act of God that happens by his permission; everything by his knowledge. But, to prevent litigation, collusion and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the King's enemies or by such act as could not happen by the intervention of man, as storms, lightning and tempests".

9. In the case of Nugent v. Smith⁽⁵⁾, Cockburn C.J. at page 434 said:

"The definition which is given by Mr. Justice Brett (the trial judge) of what is termed in our law the 'act of God' is that it must be such a direct, and violent, and sudden and irresistible act of Nature as could not by any amount of ability have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted".

At page 435 the Chief Justice said:

"That a storm at sea is included in the term 'act of God' can admit of no doubt whatsoever. Storm and tempest have always been mentioned in dealing with this subject as among the instances of vis major coming under the denomination of 'act of God'".

At page 438 he said:

"I find no authority for saying that vis major should be such as 'no amount of human care or skill could have resisted' or the injury such as 'no human ability could have prevented' and I think this construction of the rule erroneous. That the defendants here took all the care that could reasonably be required of them .... is, I think, involved in the finding of the jury, directly negativing negligence, and I think that it was not incumbent on the defendants to establish more than is implied by that finding."

With this qualification, the Chief Justice appears to have approved of Brett J.'s definition. It is important, for reasons which will later appear, to observe that the inability to resist the phenomenon forms an integral part of the definition of Act of God.

10. In Nichols v. Marsland⁽⁶⁾ where a most unusual fall of rain had caused reservoirs to burst Mellist L.J. said at page 5:

"Now the jury has distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs but that the flood was so great that it could not reasonably have been anticipated, although if it had been anticipated, the effect might have been prevented; and it seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate."

11. In Pandorf & Co. v. Hamilton, Fraser, & Co.⁽⁷⁾ at page 675 Lord Esher, M.R. said:

"It (i.e. Act of God) meant an extraordinary circumstance which could not be foreseen, and which could not be guarded against."

It is difficult to understand why he added the last seven words. An eventuality which cannot be foreseen clearly cannot be guarded against.

12. In the difficult case of The River Wear Commissioners v. Adamson⁽⁸⁾ their Lordships were in no doubt that tempest is an Act of God, though about many other aspects of the case some of them fell on less sure ground.

13. In Nitro Phosphate and Odam's Chemical Manure Company v. London and St. Katharine Docks Company⁽⁹⁾ Fry J. said at page 515:

"it is said that, after the tide had once reached four feet, a tide which reached that height again could never be said to be so unusual or unexpected as to be deemed an act of God in the legal sense of the words. I do not think that view is correct. I do not think that the mere fact that a phenomenon has happened once, when it does not carry with it, or import any probability of a recurrence - when, in other words, it does not imply any law from which its recurrence can be inferred - places that phenomenon out of the operation of the rule of law with regard to the act of God. In order that the phenomenon should fall within that rule it is not, in my opinion, necessary that it should be unique, that it should happen for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated."

In the Court of Appeal Fry J.'s Judgment on this aspect of the case was not considered, as this case was decided on other grounds.

14. In Greenock Corporation v. Caledonian Railway⁽¹⁰⁾, the Court was considering what amounted to damnum fatale in Scotland - a concept in some measure at least equivalent to act of God. In that case Lord Finlay L.C. at page 571 said: "What amounts to damnum fatale". Its definition is given by Lord Westbury in Tennent v. Earl of Glasgow:

"Under these circumstances, my Lords, what has occurred is one of those things which do not involve any legal liability - what are denominated in the law of Scotland damnum fatale occurrences - circumstances which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility, and which when they do occur, therefore, are calamities which do not involve the obligation of paying for the consequences that may result from them."

Later he said:

"In my opinion the appellants have entirely failed to establish any defence on this ground. It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time."

15. An Act of God is thus seen to be something of an elusive concept. Has it to be some manifestation of nature which cannot be foreseen and which cannot be resisted or guarded against? In my judgment this is not so. As I said earlier in this judgment, I cannot understand how a phenomenon which cannot be foreseen can be guarded against.

16. In my judgment an Act of God is an accident, due to natural causes, directly and exclusively without human intervention which could not by any amount of ability have been foreseen or if foreseen could not by the exercise of all reasonable skill and care have been avoided. But many of the cases speak of the occurrence, the manifestation of nature, as having to be extraordinary. The difficulty is to know what is meant by "extraordinary". Literally it means "out of the ordinary" but that does not advance matters a great deal. Clearly it does not mean unique. Nor can it mean something which happens regularly. It must refer to something in between. The mere fact that it has happened before, and may happen again, in my opinion does not prevent its being an Act of God. It must however not be an ordinary accidental circumstance. It must be something overwhelming. Whether a particular occurrence amounts to an Act of God must be a matter of fact, depending upon the circumstances of the case.

17. It was argued that, in view of the fact that typhoons, of varying intensities, occur quite frequently in Hong Kong, a typhoon cannot be said to be an extraordinary occurrence. I disagree. The birth, development, course and intensity of a typhoon are all unpredictable. There may he more than one typhoon a year - there may, as in this year - be none. Clearly in these days of satellites and improved meteorological knowledge the onset of a typhoon can be foreseen at least by a matter of hours. But these factors do not in my judgment remove the phenomenon from the category of an Act of God.

18. In my judgment, bearing in mind the severity of typhoon Hope, and the fact that it was the most severe since typhoon Rose, eight years before, damage caused by it was due to an Act of God. The onus of establishing this lies on the Plaintiffs and they have discharged it.

19. But, it was argued for the Attorney General, there was human intervention in this case, i.e. the manoeuvring of the vessel; in which case the damage cannot he said to be due to an Act of God. I reject this argument. Had the master and crew, without negligence, stood idly by and meekly allowed the ship to be driven before the pale, there would clearly have been no human intervention. I cannot believe that this ceases to be an Act of God merely because the master and crew did all in their power to avoid damage being caused. What happened was not human intervention; it was a human attempt at prevention. In my judgment the direct cause of the damage was the force of the wind which, despite all the skilful efforts of the master and crew, caused the ship to strike the Plaintiffs' pier.

20. It follows that in my judgment the Plaintiffs succeed against the second Defendant. I refer the assessment of the damages to a Registrar and also the question of interest. Plaintiffs' costs against the 2nd Defendant. 2nd Defendant to pay the costs of the 1st Defendant.

Representation:

E.C. Mumford (Deacons) for Plaintiffs

W.E. Johnson for Crown/2nd Defendant

(1) (1608) 12 Co. Rep. 63

(2) (1718) 1 Str. 127

(3) (1785) 4 Doug K.B. 287 at page 290

(4) (1785) 1 Term Rep. 27

(5) (1876) 1 C.P.D. 423

(6) (1876) 2 Ex.D. 1

(7) (1886) 17 Q.B.D. 670

(8) (1877) 2 A.C. 743

(9) (1878) 9 Ch.D. 503

(10) (1917) A.C. 556