Buttrose J:

This is an action for damages for breach of contract and or in the alternative, for breach of duty in connection with the carriage of goods by sea. The facts are as follows:-

On the 21 December 1967, 292 packages of copra cakes, the property of the plaintiffs, were shipped n apparent good order and condition on board the Selat Maduraat Sourabaya under a bill of lading of that date for carriage to New York with transhipment at Singapore. It was provided by the bill of lading that it was to have effect subject to the provisions of the rules (commonly known as the Hague Rules) which are contained in the Schedule to the Carriage of Goods by Sea Ordinance (Ch 173) which shall override any of the terms or exceptions in cl 1 of the bill of lading that may be in conflict or inconsistent therewith. It was conceded at the trial by Counsel for the defendants that the Hague Rules applied. the 7,292 packages of copra cakes shipped 3,748 packages were stored at the bottom of No. 3 Lower Hold.

On the 23 December, two days after the vessel sailed from Sourabaya it was noticed that she had a heavy list to starboard. An investigation to ascertain the cause proved fruitless and the vessel continued on her voyage. On the following morning, the 24 December it was noticed that water mixed with copra cake was pouring out of the starboard forward main deck scupper at No. 3 Hold. An inspection was made and it was found that a considerable quantity of water had entered the hold but as the cargo came up to the hatch covers it was not possible to trace its source. The crew had to go over the side on a staging to fit a blt or hook patch over the exit to the scupper pipe. An attempt was made to pump the water out of No. 3 Hold without success. The vessel continued on her voyage and arrived at Singapore on the morning of the 25 December. All of the 3,748 packages inNo. 3 Hold were found to be damaged.

After the water had been pumped out and some of the lower Hold cargo had been discharged an inspection was made and it was discovered that the two scupper pipes which pass through No. 3 Hold were holed. The starboard scupper pipe had a hole 6" X 1 1/2;" while the port scupper pipe had a hole 1" X 3/4" and through these holes water had entered the hold. An examination of the scupper pipes revealed that they were badly wasted by rust from lack of maintenance.

Upon these facts the plaintiffs brought the present action against the defendants claiming that they were liable for the damage to plaintiffs' goods.

The plaintiffs contended that the ship at and before the commencement of the voyage from Sourabaya on the 21 December 1961 was unseaworthy. They relied specifically on Article III rr. I and II of the Hague Rules which are as follows:-

Article III r. I "The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to:

(a) make the ship seaworthy . .

(b) make the holds . . . . and all other parts . . . . in which goods are carried fit and safe for their reception, carriage and preservation."

rule II "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."

The plaintiff's case was that the condition of the starboard scupper pipe which passed through No. 3 Hold in which part of their goods was being carried was so wasted and weakened by rust and in such a damaged condition before and at the beginning of this voyage as to render the vessel unseaworthy.

The evidence clearly established and it was never seriously disputed that the vessel was unseaworthy before and at the beginning of the voyage. That the condition of the starboard scupper pipe in No. 3 Hold was such that no prudent owner would have sent the vessel to sea without requiring the defect to be made good had he known of it is clear beyond doubt.

The substantial issue in the case which was raised by the defence was as to whether by the exerc