Eastern Asia Navigation Co Ltd v Fremantle Harbour Trust Commissioners [1951] HCA 7

High Court of Australia Latham C.J. Fullagar and Kitto JJ. Eastern Asia Navigation Co Ltd v Fremantle Harbour Trust Commissioners [1951] HCA 7

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered.

March 19 Latham C.J.:

On 17th January 1945 an extensive fire occurred in Fremantle harbour. The S.S. Panamanian, an oil-burning steel vessel, over 600 feet in length, 15,000 tons register, was lying at a berth at the north wharf in the inner harbour, to which she had been directed by the harbour master, an officer of the Fremantle Harbour Trust. Neighbouring berths were used by submarines of the Royal Navy and of allied navies under arrangements made by the Commonwealth. The submarines used large quantities of the oil fuel known as dieselene. Other ships, including the Panamanian, used oil fuel described as furnace oil. The Panamanian was loading flour for Calcutta. The evidence showed beyond question that from time to time there were large quantities of oil on the surface of the water. A piece of hessian (a bag which had been cut open) about six feet by eight feet was seen to be smouldering on the deck of the ship. It had been used to cover a winch which was being used on the ship. Someone stamped on the hessian but it still smouldered. One J. E. Durnin threw it over the starboard side of the ship between the ship and the wharf, intending to throw it into the water. (Durnin was not employed by either of the defendants, the Fremantle Harbour Trust or the Commonwealth, but was an employee of the stevedore who was loading the ship.) The hessian caught on timber of the wharf about eighteen inches above the water. It flared up and within at most two or three minutes a sheet of flame shot up and the ship caught fire and was badly damaged. About 1,000 feet of wharf was burned. The plaintiffs, claiming to be the owners of the ship, sued the Fremantle Harbour Trust and the Commonwealth of Australia for £300,000 damages. The learned trial judge, Dwyer C.J., dismissed the action against both defendants. The plaintiff appeals to this Court.