British Petroleum Company, Limited V. The Attorney-General Of Ceylon.

[PRIVY COUNCIL.]

Present: Lord Dunedin, Lord Sumner, and Lord Wrenbury.

BRITISH PETROLEUM COMPANY, LIMITED v. THE
ATTORNEY-GENERAL OF CEYLON.

183-D. C. Colombo, 953.

    Crown-'Claim against Government of Ceylon-Contract with harbour authority-Ship grounding in Colombo Harbour-Negligence of pilot-Ordinance No. 4 of 1889, S. 11.

Where damage was caused to a ship by its taking ground in the Colombo Harbour in a berth to which it had been taken by a Government pilot, and where, it appeared, that the damage "-was due to the ship being negligently moored by the pilot in a berth in which the ship would otherwise have been safe.

Held, that the action failed since, if it was based on a contract with the Government of Ceylon, it would only be a contract to provide a berth to which it was safe to go ; and if the ship was improperly moored by the pilot, the Government was exempt from liability for his negligence by section 11 of Ordinance No. 4 of 1889.

APPEAL from a judgment of the Supreme Court. The British Petroleum Company, Limited, sued the Attorney-General as representing the Government of Ceylon, in the District Court of Colombo, to recover damages sustained by the steamship " British Ensign " in the Colombo Harbour. The learned District Judge gave judgment for the plaintiffs, but on appeal the Supreme Court dismissed the action. The facts appear from the judgment of the Judicial Committee.

December 16, 1925. Delivered by LORD DUNEDIN :-

The ss. " British Ensign," belonging to the plaintiffs and appellants, laden with benzine, arrived outside the harbour of Colombo, on a voyage from Rangoon to Suez for orders, on September 10, 1919. She needed bunker fuel and consequently wished to enter the harbour for that purpose. She signalled for a pilot and a pilot came off, who proceeded to put her into a berth in the harbour. She was moored to certain stationary buoys in the harbour. In all the manoeuvres required to place her in the berth, she was under the charge of the pilot. She took in the fuel required, and next morning essayed to leave the berth. It was then found that she had taken the ground at the stern. After some ineffectual efforts, to free her from the ground she was eventually got off at high tide

and proceeded on her voyage. Before she started from the harbour a perfunctory examination was made of her hull, so far as could be seen or felt by divers, and it was not thought that she had sustained any injury, but eventually, when she came to England and was dry-docked, it was found that her stern and some of the plates of her hull had been severely injured. The plaintiffs then raised the present action against the defendant, the Attorney-General of Ceylon-the Government of Ceylon being the harbour authority of Colombo-for the damage done.

The harbour of Ceylon is a roadstead which has been artificially turned into a harbour by the erection of breakwaters which has converted it into a closed area of 640 acres. The erection of the breakwaters was effected under various Ordinances having the authority of law, which constituted the Government the harbour authority and gave them rights and imposed duties. Under the Ordinances no vessel may enter without a pilot. When entered, she is directed to a berth and the pilot takes her there. A pilot also takes her away from the berth and out to sea. A tariff is charged, which varies according to services rendered and the size of the ship. It is not necessary to go into particulars because it is common ground that the " British Ensign " in respect that she only entered for coaling (liquid fuel being held as equivalent to coal) and taking in water, fell to be charged a special consolidated rate of Rs. 200 for a stay not exceeding 96 hours.

The so-called berths in the harbour are rectangular spaces which are marked by means of numbered buoys. The buoys at the

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