Shipping Corp of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd

147 CLR 142
32 ALR 609

---

(Judgment by: MASON J, WILSON J)

Between: SHIPPING CORP OF INDIA LTD
And: GAMLEN CHEMICAL CO A/ASIA PTY LTD

Court:

Judges: Gibbs J
Stephen J

Mason JAickin J

Wilson J

Subject References:
Shipping

Hearing date: 11 June 1980, 12 June 1980
Judgment date: 12 December 1980

Canberra

---

Judgment by:
MASON J
WILSON J

In June 1972 the respondent's goods were shipped aboard the appellant's ship under a clean bill of lading for carriage from Sydney to Indonesia. While crossing the Great Australian Bight the vessel experienced heavy weather. Upon its arrival at the Port of Fremantle on 9 July 1972 it was discovered that the goods had broken adrift from their rope lashings and sustained extensive damage.

The respondent sued the appellant in the Supreme Court of New South Wales claiming damages for negligence. The alleged negligence consisted of the failure to use due and proper care in the stowage of the goods. The appellant relied upon the exception contained in r. 2 (c) of Art. IV of the Hague Rules ("the Rules") contained in the Schedule to the Sea-Carriage of Goods Act 1924, asserting that the loss or damage to the goods arose from "perils dangers and accidents of the sea, namely heavy weather". The appellant contended that the heavy weather experienced during the voyage constituted a peril of the sea within the terms of the paragraph and that therefore it was not liable for the damage regardless of any negligence by it in stowing the goods .

The learned trial judge (Yeldham J.) made certain findings of fact which included the following: -

"I am satisfied . . . that one of the causes of the damage to the cargo was the weather experienced, especially that on 8th July. I am also satisfied that, although it was not common to encounter weather of such intensity, even in the Great Australian Bight, nonetheless it was encountered from time to time and could not be described as unforeseeable or weather against which it was unnecessary to guard. I am satisfied also that the drums in question could have been so stowed as to withstand weather conditions of the type in fact encountered . . . . . . for a voyage through the Great Australian Bight, the stowage of the goods was inadequate. . . . I find that improper stowage was a concurrent cause of the damage."

In the result, his Honour held that the weather conditions did amount to a peril of the sea notwithstanding that they could have been foreseen and guarded against and that that peril together with the inadequate stowage of the goods was a concurrent cause of the damage. He held that it was not necessary that the exception upon which the appellant relied should have been the sole cause of the damage, and he therefore dismissed the claim.

On appeal to the Court of Appeal of the Supreme Court, Samuels J.A., with Moffitt P. and Reynolds J.A. concurring, held that the Rules have not altered the common law principle that an exception in a bill of lading as to perils of the sea is not available where negligence of the carrier is established. Reynolds J.A. summed up the conclusion of the Court in the following words:

"Loss or damage does not arise or result from perils of the sea where negligence is a concurrent cause. Where negligence allows or facilitates the perils of the sea to inflict damage on cargo, then in all relevant respects the loss or damage arises or results from the negligence. The perils of the sea must be guarded against by the use of due care."

The appeal was allowed, and the appellant carrier now appeals by special leave to this Court.

Mr. Beaumont, for the appellant, argued that the Court of Appeal fell into error in construing the Rules by reference to the common law principles relating to the carriage of goods by sea and in particular by reference to the proposition that the carrier could not excuse his liability for loss of or damage to cargo, by reliance upon an exception for perils of the sea, if the loss or damage was caused also by his negligence or breach of duty. He submitted that the Rules are a code which is intended to standardize and unify international practice, and that they constitute an exhaustive statement of the rights, immunities and liabilities of the parties. Alternatively, he argued that it is not permissible to import the particular common law principle as the Court of Appeal did because it is inconsistent with the Rules themselves. He argued that the carrier's obligation to "properly and carefully . . . stow . . . the goods carried" is qualified, because of the prefatory words to r. 2 of Art. III of the Rules, by the exemption from responsibility for any loss arising from a peril of the sea (Art. IV, r. 2 (c)). This result follows inescapably from the fact, in his submission, that the obligation in r. 2 of Art. III is "subject to" the immunities in Art. IV.

The problem thus presented for resolution is in appearance a simple one, and it is surprising perhaps that it does not appear to have arisen expressly for determination in any court hitherto, despite the many decisions, to which we have been referred, on related aspects of the Rules. It may be noted that the underlying assumption in Blackwood Hodge (India) Private Ltd. v. Ellerman Lines Ltd. (1963) 1 Lloyd's Rep 454 appears to have been that negligence precludes reliance on any immunity to be gained from perils of the sea.

We propose to leave the cases to one side for the time being and proceed to examine the appellant's case on the basis of the premise upon which it is based, namely that the common law principles are not relevant to the facts of this case, which falls to be determined simply on the proper construction of the Rules themselves. In arriving at its interpretation of Arts. III and IV of the Hague Rules the Court of Appeal relied very heavily on the antecedent common law, approaching the Rules on the footing that, unless their language indicated otherwise, they should not be regarded as altering existing principles of the English common law. The Court applied the traditional canon of construction that a statute will be held not to change the existing law unless it clearly evinces an intention so to do. However, we doubt whether it was appropriate to give quite so much weight to the antecedent law as the Court of Appeal did. As early as 1904 the Commonwealth enacted the Sea-Carriage of Goods Act, similar to the United States Harter Act of 1893, which had drastically limited the circumstances in which shipowners were permitted by the common law to limit their liability in respect of sea-carriage of goods from Australian ports. The 1904 Act was repealed by s. 3 of the Sea-Carriage of Goods Act 1924 which enacted the Hague Rules which were adopted by an international convention signed at Brussels in 1924. The Hague Rules are more favourable to shipowners and carriers than the regime previously introduced by the 1904 Act and the Harter Act. For this reason the substance of the Hague Rules was not adopted by the United States until the enactment of the Carriage of Goods by Sea Act of 1936.

It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, "in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation", to repeat the words of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (UK) Ltd. (1978) AC 141, at p 152 ; see also Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. (1932) AC 328, at p 350 .

It is important that we should adhere to this approach when we are interpreting rules which have been formulated for the purpose of regulating the rights and liabilities of parties to international mercantile transactions where great store is set upon certainty and uniformity of application.

To say this is not to assert that we should exclude from our consideration of the rules settled by an international convention the meaning which has been consistently assigned by a national court to words and expressions commonly used in the documentation by which international trade is transacted, when the convention, in seeking to regulate the rights and liabilities of parties to international trading transactions, uses those words and expressions. There is a high probability that when such words and expressions have been incorporated in a convention, they have been incorporated with knowledge of the meaning which has been given to them by national courts. Nor do the principles of interpretation of an international convention exclude recourse to the antecedent municipal law of nations for the purpose of elucidating the meaning and effect of the convention and the new rules which it introduces. It would be extremely difficult to interpret the new rules as if they existed in a vacuum without taking into account antecedent municipal law and the problems which its application generated. However, in resorting to antecedent municipal law we need to recollect that it is the language of the Hague Rules that we are expounding, the antecedent law providing a background for that exposition by enabling us more readily to gauge the sense and direction of the new rules which the convention introduces.

It is convenient to set out the relevant provisions of the Rules:

"Article II Risks

Subject to the provisions of Article VI, under every contract of carriage of goods by sea, the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.

Article III Responsibilities and Liabilities

1.

The carrier shall be bound before and at the beginning of the voyage, to exercise due diligence to -

(a)

make the ship seaworthy;

(b)

properly man, equip and supply the ship; and

(c)

make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception , carriage and preservation.

2.

Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

...

8.

Any clause, covenant or agreement in a contract of carriage relieving the carrier of the ship from liability for loss or damage to or in connexion with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect.

A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.

Article IV Rights and Immunities

1.

Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1. of Article III.

Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under the section.

2.

Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from -

(a)

act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship;

(b)

fire, unless caused by the actual fault or privity of the carrier;

(c)

perils, dangers and accidents of the sea or other navigable waters;

(d)

act of God;

(e)

act of war;

(f)

act of public enemy;

(g)

arrest or restraint of princes, rulers or people, or seizure under legal process;

(h)

quarantine restrictions;

(i)

act or omission of the shipper or owner of the goods, his agent or representative;

(j)

strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

(k)

riots and civil commotions;

(l)

saving or attempting to save life or property at sea;

(m)

wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;

(n)

insufficiency of packing;

(o)

insufficiency or inadequacy of marks;

(p)

latent defects not discoverable by due diligence;

(q)

any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

...

4.

Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

5.

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding One hundred pounds per package or unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier .

By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above named.

Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connexion with goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lading.

6.

Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier, has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.

If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any."

It is not necessary to have regard to Art. V beyond mentioning that it recognizes that a carrier may surrender all or any of his rights and immunities or he may increase any of his responsibilities and liabilities that are contained under the Rules. Likewise, Art. VI does not need to receive any special attention save to note that it allows for a limited contracting out of the obligations and immunities provided by the Rules but only in the case of special situations other than "ordinary commercial shipments made in the ordinary course of trade".

Article II provides an important and relevant background to a consideration of Arts. III and IV in that it declares that the carrier in relation to the loading, handling, stowage, carriage, custody, care and discharge of goods pursuant to a contract of carriage of goods by sea "shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth". The Article contemplates the dual operation, side by side, of responsibilities and liabilities on the one hand and rights and immunities on the other.

Coming to Art. III, the appellant places reliance on the fact that while r. 2 opens with the words "Subject to the provisions of Article IV" there is no similar preface to r. 1. The distinction may be significant. On the one hand, it furnishes an expectation that the obligation imposed by r. 2 is to be qualified in some respects by the provisions of Art. IV. On the other hand, it also makes plain the intention that there is to be no qualification of the obligation imposed by r. 1, whereby the carrier is "bound . . . to exercise due diligence" to prepare the ship in the manner described .

With regard to r. 2 of Art. III, the obligation is not expressed in terms of "due diligence"; it is to "properly and carefully" perform a wide range of operation, namely, load, handle, stow, carry, keep, care for and discharge the goods. In Albacora S.R.L. v. Westcott & Laurance Line Ltd. (1966) 2 Lloyd's Rep, at pp 63-64 , Lord Pearson makes several observations to the following effect about this rule: (1) there is a prima facie obligation under the rule which may be displaced or modified by some provision of Art. IV; (2) the obligation is not to achieve the desired result, that is, the arrival of the goods in an undamaged condition at their destination. It is an obligation to carry out certain operations properly and carefully; (3) the word "properly" adds something to "carefully", if "carefully" has a narrow meaning of merely taking care: the element of skill or sound system is required in addition to taking care; and (4) Art. IV contains many and various provisions, which may have different effects on the prima facie obligation arising under Art. III, r. 2. Several of their Lordships in Albacora accepted the proposition that the word "properly" adds something to "carefully", and that it carried the connotation of a sound system. In Gosse Millard v. Canadian Government Merchant Marine Ltd. (1927) 2 KB 432 , at p 434 , Wright J. gave a larger scope to the words contained in this rule, assimilating it to the common law obligation to carry the goods safely. Lord Pearson in Albacora (1966) 2 Lloyd's Rep, at p 64 rightly disagreed with this construction, referring to Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. (1954) 2 QB 402 , at pp 417-418 and to G.H. Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama (1957) AC 149, at p 166, 169, 174 . It is not necessary for the purposes of this case to determine precisely the extent of the obligation. There is no doubt on the findings in this case that the appellant failed to properly and carefully stow the goods, and was therefore prima facie in breach of the obligation imposed, "subject to Article IV", by Art. III, r. 2.

The appellant argued that it is not responsible for the damage because it resulted from a peril of the sea (Art. IV, r. 2 (c)). But is this an accurate statement of the findings of the learned trial judge? Those findings were that the goods were not adequately stowed, that the ship encountered heavy weather which constituted a peril of the sea, that if the goods had been properly stowed the damage would not have occurred, and that the negligence of the carrier and the peril of the sea were concurrent causes of the damage. It seems to us that an accurate reflection of these findings requires one to treat the two concurrent causes of the loss as inseparable, and therefore joint. The loss would not have occurred but for the faulty stowage, but on the other hand, the faulty stowage did not cause the loss by itself. On this view, and treating the matter strictly as a matter of construction of the rule, it cannot be said that the damage resulted from a peril of the sea, and the appellant fails. The conclusion is strengthened by the consideration that on the findings of the trial judge there would have been no loss if it had not been for the negligence of the carrier.

But let us take a broader view, testing the proposition by reference to other paragraphs of Art. IV, r. 2. It seems to us that the effect of the appellant's argument is that the Rules reflect the intention that even though a carrier has occasioned damage to goods through his negligence in circumstances which prima facie constitute a breach of the obligation imposed by Art. III, r. 2, nevertheless he will be relieved of responsibility for that damage in every case except where the damage results from - (i) fire caused by the actual fault or privity of the carrier (Art. IV, r. 2 (b)); (ii) latent defects in the goods which were discoverable by due diligence (Art. IV, r. 2 (p)); or (iii) any cause other than those listed in Art. IV, rr. 1, 2 (a) to (p) inclusive, which is occasioned by the actual fault or privity of the carrier, or the fault or neglect of the agents or servants of the carrier (r. 2 (q)).

With great respect, we think that such an extraordinary result has only to be stated to suggest that the argument is untenable. It would denude the obligation imposed by Art. III, r. 2 of much of its substance. There is a more persuasive answer ready to hand to explain why Art. IV, r. 2 does not expressly preserve liability for negligence in all cases. It is that pars. (c) to (o) inclusive, with the exception of (1), are all matters which in themselves are beyond the control of the carrier or his servants. Any reference in that context to negligence is inappropriate, because they are events which of their nature occur independently of negligence on the part of the carrier. For example, one would not expect to see the rule relieve the carrier from responsibility for damage resulting from "act of God, unless caused by the fault or neglect of the carrier, his agents or servants". The remaining paragraphs of r. 2 carry their own explanation. Paragraph (a) has its origin in s. 3 of the Harter Act, and has attracted a particular history (cf. Gosse Millerd (1929) AC 223, at p 230, 236 . Paragraph (b) relates to fire, and reflects its own particular statutory history (see the Merchant Shipping Act, 1894 (U.K .), s. 502). Paragraph (1) deals with deviation to save life and property, and receives fuller treatment in Art. IV, r. 4. Paragraph (q) is of the greatest assistance in the task of construction, because in our opinion it expresses the fundamental scheme of the Rules. That scheme is to impose certain responsibilities and liabilities on the carrier of goods by sea, from which he cannot contract out (cf. Art. III, r. 8), but to give him immunity in respect of loss or damage caused otherwise than by negligence for which he is responsible, save in the special cases to which we have referred. To the extent to which Art. III, r. 2, by using the word "properly" imposes on the carrier a more onerous duty than an absence of negligence then clearly to that extent the immunities described in Art. IV, r. 2 operate to qualify the liability otherwise resting on the carrier; indeed, if this is not the case then as Temperley points out in his monograph, Carriage of Goods by Sea Act 1924, 3rd ed, p. 48, par. (q) is not an immunity at all, for it would do no more than shift the onus of proof on to the carrier. On the other hand, if such a line of reasoning seeks to extract a greater symmetry of purpose than the Rules viewed in their entirety will admit, then the proper observation is simply that it must not be thought that the effect of the prefatory words to Art. III, r. 2 is to compel some impact on the scope and operation of the obligation imposed by that rule from every provision in Art. IV. Ample justification for the preface is to be found in the presence in Art. IV of r. 2 (a) and (b), and rr. 4, 5 and 6. Each of these provisions adds a significant qualification to either the scope of the obligation or the consequences of a breach. There is then nothing surprising in the fact that those paragraphs of Art. IV, r. 2 which do not depend on any conduct of the carrier, his agents or servants, have nothing to say to Art. III, r. 2. Other rules in Art. IV also provide the carrier with important immunities: the right to deviate in certain circumstances (r. 4), the right to deal with dangerous goods (r. 6), and a limitation on the quantum of damage for which he is liable (r. 5).

It follows then, in our opinion, that the question whether the carrier is entitled to rely upon Art. IV, r. 2 (c) to protect him from loss or damage will require to be answered by reference to all the circumstances of a particular case. While this would be so irrespective of the exception upon which the carrier relied, it is particularly so in the case of perils of the sea, a term which is apt to cover such a wide range of mishaps at sea. There is a difference between the Anglo-Australian conception of "perils of the sea" and the United States-Canadian conception. According to the latter, "perils of the sea" include losses to goods on board which are peculiar to the sea and "are of an extraordinary nature or arise from irresistible force or overwhelming power, and which cannot be guarded against by the ordinary exertions of human skill and prudence": The Guilia (1914) 218 F 744 , adopting Story on Bailments, s. 512 (a). In the United Kingdom and Australia it is not necessary that the losses or the cause of the losses should be "extraordinary" (Carver, Carriage by Sea, vol. 1, 12th ed. (1971), s. 161; Skandia Insurance Co. Ltd. v. Skoljarev (1979) 142 CLR 375 , at pp 386-387 ). Consequently sea and weather conditions which may reasonably be foreseen and guarded against may constitute a peril of the sea.

What is important for present purposes is that Story's description of "perils of the sea" excludes losses which could be avoided by the carrier's skill and prudence. Despite the broader concept of "perils of the sea" which prevailed in the United Kingdom and Australia a similar result was achieved in cases in which the loss or damage to the goods brought about by the action of the sea would not have occurred but for negligence on the part of the carrier or those for whom he was responsible. It was held, looking beyond the proximate cause, that the effective cause of loss was the carrier's negligence and that accordingly he could not take advantage of the "perils of the sea" exception in the bill of lading (The "Xantho" (1887) 12 App Cas 503, at p 510 ; Hamilton, Fraser & Co. v. Pandorf & Co. (1887) 12 App Cas 518, at p 525 ). The United States decisions turn on a narrower concept of "perils of the sea" whereas the English decisions turn rather on the issue of causation, looking more to the requirement that the exception is for loss or damage which results from or arises from "perils of the sea". But in each case the decisions give effect to the language of the bills of lading that constituted the contract of carriage.

Essentially the question which now arises under the Hague Rules is very similar to the question which arose at common law in the United Kingdom and the United States. When cargo is lost or damaged by the action of the sea and the loss or damage could be avoided by reasonable care on the part of the carrier, would it fall within the "perils of the sea" exception and does it now fall within the Art. IV, r. 2 (e) immunity? The answer given by the courts in the United Kingdom and the United States reflects the settled meaning and effect which were accorded to the language traditionally employed in bills of lading. The language employed in Art, IV, r. 2 is the same. It speaks of "loss or damage arising or resulting from . . . (c) perils . . . of the sea . . . ".

Resort to the United Kingdom decisions confirms this interpretation of the Rules: Gosse Millerd v. Canadian Government Merchant Marine Ltd. (1929) AC 223, at p 230 ; Silver v. Ocean Steamship Co. Ltd. (1930) 1 KB 416 , at p 435 ; Paterson Steamships Ltd. v. Canadian Co-operative Wheat Producers Ltd. (1934) AC 538, at p 548 ; Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. (1932) AC 328 . Further confirmation is provided by the United States decisions on the Carriage of Goods by Sea Act 1936, s. 1304 (2) (c); they turn partly on the North American concept of "peril of the sea" to which we have referred - see International Produce Inc. v. S.S. "Frances Salman" (1975) 2 Lloyd's Rep 355, at pp 365-366 . But they produce the same result.

It remains for us to mention the reliance by the appellant on the decision of the House of Lords in Albacora. As we have already made clear, the essence of Mr. Beaumont's argument is that the fact of negligence by the carrier is irrelevant in a case where the carrier can establish that a peril of the sea was a contributing or concurrent cause of the damage. In such a case the carrier is entitled to the full benefit of the immunity conferred by Art. IV, r. 2. Mr. Beaumont found support for his submission in the following passage in the judgment of Lord Pearson in Albacora (1966) 2 Lloyd's Rep, at p 64 :

"There is no express provision, and in my opinion there is no implied provision in the Hague Rules that the shipowner is debarred as a matter of law from relying on an exception unless he proves absence of negligence on his part. But he does have to prove that the damage was caused by an excepted peril or excepted cause, and in order to do that he may in a particular case have to give evidence excluding causation by his negligence. It was proved in this case that the shipowner was not negligent."

With respect we think that the appellant misconceives the thrust of the observation of Lord Pearson. The key to the statement is to be found in the phrase "unless he proves absence of negligence on his part." His Lordship in our opinion is dealing with the question of onus of proof and taking up a position in opposition to the much debated statement by Wright J. in Gosse Millard (1927) 2 KB 432 , at pp 434-436 , which is described in one of the texts as "heresy" (cf. Carver, Carriage by Sea, 12th ed. (1971) vol. 1, par. 266A). The point was of no relevance in Albacora because, as his Lordship observes, it was proved in the case that the shipowner was not negligent; nor is it relevant in this case because it has been proved that the shipowner was negligent. We may say, in passing, that we agree with Samuels J.A. in the Court of Appeal when he points out that the correct sequence of pleading is set out in the judgment of Lord Esher in The Glendarroch (1894) P 226, at pp 231, 233 . We are unable to draw any support from Lord Pearson's statement for the proposition advanced for the appellant.

For these reasons, the appellant, in our opinion, has failed to make out its case.

We would dismiss the appeal.