Case: The 'Eschersheim' [1976] 2 Lloyd's Rep 1
Outcome: discussed
A convenient description of the phrase and its contents can be taken from the judgment of Lord Diplock (in whose reasons all members of the House of Lords concurred) in The 'Eschersheim' [1976] 2 Lloyd's Rep 1 at 8: The figurative phrase "damage done by a ship" is a term of art in maritime law whose meaning is well settled by authority: see The Vera Cruz (1884) 9 P.D. 96; Currie v. M'Knight, [1897] A.C. 97. To fall within the phrase not only must the damage be the direct result or natural consequence of something done by those engaged in the navigation of the ship but the ship itself must be the actual instrument by which the damage was done. The commonest case is that of collision, which is specifically mentioned in the convention: but physical contact between the ship and whatever object sustains the damage is not essential-a ship may negligently cause a wash by which some other vessel or some property on shore is damaged. 83 In The ' Eschersheim ' there was a challenge to jurisdiction and a stay application. The tug Rotesand took in tow the ship Erkowit, which had been holed in a collision with a third vessel. A salvage agreement was signed between those on Rotesand and Erkowit's master. The tug beached Erkowit in a sinking condition. No particular damage to Erkowit or her cargo was caused by the beaching, but extensive pollution damage later occurred to surrounding areas from oil in Erkowit , and the cargo and the crew's possessions on Erkowit were later damaged and lost. The claims were against the salvors for negligent salvage. The owners claimed for loss of the ship; the master, crew and cargo owners claimed for the loss of possessions and cargo. Brandon J at first instance said the claims thus made were not for damage done by a ship, that is Rotesand ; the Court of Appeal disagreed. The House of Lords agreed with the Court of Appeal. The following parts of Lord Diplock's judgment at 8 reveal the fineness of the distinctions involved and the difficulty of resolving these issues entirely satisfactorily on a motion about jurisdiction by reference to the "character" of the claim: In the instant case the act of casting off the Erkowit in such a way as to beach her upon an exposed shore was something done by those engaged in the navigation of the Rotesand, as a result of which the Erkowit and her cargo were left exposed to the risk of being damaged by wind and wave if the weather worsened before she could be removed to a more sheltered position. I do not understand it to be claimed that the actual beaching caused any physical damage to ship or cargo, but for the purposes of this appeal it must be assumed that the chain of causation is unbroken between the beaching of the Erkowit and her subsequent breaking-up by wind and wave. Had the damage been caused by the beaching, there could in my view have been no question but that the Rotesand could properly be regarded as the actual instrument by which that damage was done. Although for my part I find this a borderline case, I do not think that the intervening failure of the appellants to take steps to avert the risk of damage, which forms the subject of the alternative grounds of negligence, prevents the Rotesand from remaining the actual instrument by which the damage subsequent to the beaching was done. I accordingly agree with the Court of Appeal that the shipowners' and cargo-owners' claims also fall under par. (d) of s. 1(1). 85 In The 'Rama' [1996] 2 Lloyd's Rep 281, Clarke J discussed The 'Eschersheim' and concluded at 293 that to be "damage done by a ship" three criteria must be satisfied: (a) the damage must be caused by something done by those engaged in the navigation or management of the ship in a physical sense; (b) the ship must be the actual or noxious instrument by which the damage is done; and (c) the damage must be sustained by a person or property external to the ship. 86 The early cases such as The 'Vera Cruz' (No 2) (1884) 9 PD 96 and Currie v McKnight [1897] AC 97 appear on their own facts to require a close and direct connection between the damage and the ship as an instrument. Lord Diplock approved these cases in The 'Eschersheim' , but factually applied the phrase more broadly than perhaps was done in those cases. A similarly somewhat broader approach can also be found in The 'Industrie' (1871) LR 3 A &amp; E 303, The 'Chr Knudsen' [1932] P 153 and the The 'Minerva' [1933] P 224.