COMMONWEALTH SHIPPING REPRESENTATIVE VS. PENINSULAR AND ORIENTAL BRANCH SERVICE

COMMONWEALTH SHIPPING REPRESENTATIVE VS. PENINSULAR AND ORIENTAL BRANCH SERVICE

 

[1923] A.C. 191

 

[HOUSE OF LORDS.] 1922 Dec. 14.

 

VISCOUNT CAVE L.C., VISCOUNT FINLAY, LORD DUNEDIN, LORD ATKINSON, and LORD SUMNER.

 

 

Shipping – Charterparty T. 99 – Collision – War or Marine Risk – “Consequence of warlike operation” – Transport of War Material from One War Base to Another – Evidence – Judicial Notice.

Prima facie the transport by sea of war material in time of war from one war base to another war base is a warlike operation within the meaning of the usual f. c. and s. warranty in a marine policy.

 

Though the Court may take judicial notice of the existence of a state of war between this country and another, it may not take judicial notice of the date of any particular military movement in the course of the war.

 

On January 1, 1916, a collision occurred after dark in the Mediterranean between the s.s. B. and the s.s. G., which resulted in the loss of the G. Both ships were sailing at full speed and without lights in accordance with Admiralty regulations, and no blame attached to either. The G. was requisitioned by the Government of the Commonwealth of Australia upon the terms of a charterparty which provided that the Government should accept war risks but not ordinary marine risks. The question whether the loss was due to a war risk was referred to an arbitrator, who found that at the time of the collision the G. was carrying a general cargo, and that the B. “was under requisition by the British Government and was carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria)”:-

 

Held, on the latter finding, that the B. was engaged on a warlike operation, that the loss of the G. was a direct consequence of that warlike operation, and that the Commonwealth Government were liable under the charterparty.

 

Decision of the Court of Appeal [1922] 1 K. B. 706 affirmed.

 

APPEAL from an order of the Court of Appeal(1) affirming an order of Bailhache J. upon an award of an arbitrator stated in the form of a special case.

 

The following statement of facts is taken from the opinion of the Lord Chancellor:-

 

“The respondents were the owners of a steamship called the Geelong which, in the year 1915, was requisitioned by the Government of the Commonwealth of Australia for transport purposes in connection with the War. The requisition was made upon the terms of the well-known form of charter known as T. 99, which included a provision that the Commonwealth Government should accept full war risks – an expression which was understood and agreed by all parties to make the Government responsible for such risks of war as would be excluded from an ordinary marine policy by the usual f. c. and s. warranty, including in that warranty all consequences of hostilities or warlike operations.

 

“On the 1st January, 1916, the Geelong, which was not at the moment required for the transport of war material, was carrying a general cargo on Government account, and was bound from Port Said to Gibraltar for orders; and at about half-past seven in the evening of that day, when she was a few miles off Alexandria and was sailing (in accordance with the Admiralty instructions) at best speed without showing any lights, she was run into by another steamship called the Bonvilston, which was also sailing at full speed without lights, and was sunk. The Bonvilston was under requisition by the British Government, and at the time of the collision was

 

(1) [1922] 1 K. B. 706. carrying ambulance wagons and other Government stores from Mudros to Alexandria. There was no negligence on the part of either vessel.

 

“The respondents having made a claim against the appellant on the ground that the loss of the vessel was due to a war risk, and their claim being disputed, the matter was referred to the arbitration of Mr. Raeburn K.C., who made his award in the form of a special case for the opinion of the Court. By that case he found the above facts, his findings as to the purpose for which the Bonvilston was being used at the time of the collision being in the following terms: ‘The Bonvilstonat the time of the collision was proceeding from Mudros to Alexandria. She was under requisition by the British Government and was carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria). In accordance with the orders of the Naval Authorities given for the purpose of minimising the risk of submarine attack she was steaming at her best speed and was showing no lights.'”

 

The arbitrator, in so far as it was a question of fact, found, and, in so far as it was a question of law (and in such case subject to the opinion of the Court) held, that the loss of the Geelong was caused by a marine and not a war peril, and the question stated by him for the opinion of the Court was whether he was right in so holding. He accordingly awarded, subject to the opinion of the Court, that the present appellant, the Commonwealth Shipping Representative, was under no liability to the owners of the Geelong, the present respondents.

 

Bailhache J. on the contrary held that the loss was due to a war peril, and his judgment was affirmed by the Court of Appeal (Lord Sterndale M.R., Warrington and Scrutton L.JJ.).

 

1922. Nov. 17. R. A. Wright K.C. (with him H. Claughton Scott) for the appellant. Prima facie the loss was due to a marine peril. It is for the respondents to prove that it was the consequence of a warlike operation. Their case fails for want of evidence and there is no material upon which the Court can say that the arbitrator was wrong. Sailing without lights in compliance with Admiralty regulations is not a warlike operation. The Bonvilston at the time of the collision was navigating the sea like any other vessel, and the fact that she was carrying ambulance wagons was accidental. To convert that into a warlike operation it must be proved affirmatively that the goods were being transported “for combative purposes”: per Lord Atkinson in Britain Steamship Co. v. The King. (1) The finding of the arbitrator that the goods were being carried from one war base to another is not of itself sufficient to prove that they were intended to be used for combative purposes. That was the view of two of the three members of the Court of Appeal, but the Court took judicial notice of the date of the evacuation of the troops from Gallipoli, which occurred about the time of the collision, and inferred from that fact that the Bonvilstonwas carrying these goods for purposes connected with the evacuation. That is carrying the doctrine of judicial notice to an unheard-of length. In fact the Court was usurping the province of the arbitrator and was adding to his findings facts which he neither found nor was entitled to find.

 

[He also referred to Attorney-General v. Ard Coasters, Ld. (2) and British and Foreign Steamship Co. v. The King. (3)]

 

Sir John Simon K.C. and MacKinnon K.C. (with them G. P. Langton) for the respondents.

The question turns upon the effect of the finding of the arbitrator that the Bonvilston at the time of the collision was employed by the British Government in carrying ambulance wagons from one war base to another. A war base is a place selected in immediate connection with, and in the immediate rear of, military and naval operations in a particular theatre of war, in which to concentrate supplies and troops for carrying on the fighting in that theatre, and in these respects

 

(1) [1921] 1 A. C. 99, 114.

 

(2) [1921] 2 A. C. 141.

 

(3) [1917] 2 K. B. 769; [1918] 2 K. B. 879. differs from what is known as a base of supply: see The Kim.(1)If the Bonvilston had been carrying combative troops from one war base to another this case would clearly come within the consequences of warlike operations. In Britain Steamship Co. v. The King (2) Lord Atkinson in discussing the St. Oswald’s Case (British and Foreign Steamship Co. v. The King (3)says that the ship was, at the time of her loss, employed “on a service which was in its own nature a ‘warlike operation’ – namely, in carrying some of the combative forces of the Crown from Gallipoli (upon its evacuation) to some other destination.” It has also been held by the Court of Appeal since the decision of that Court in the present case that a ship carrying wounded soldiers is engaged in a warlike operation: Adelaide Steamship Co. v. The King. (4) Suppose two vessels, one carrying men and the other horses, would that make any difference? Then suppose that instead of horses the vessel was carrying guns, or field kitchens, or ambulance wagons. There is no difference, for this purpose, between the carriage of troops and the carriage of other things, animate or inanimate, which are part and parcel of the war outfit. If the Court of Appeal were right in taking judicial notice of the date of the evacuation of Gallipoli, as to which see Taylor on Evidence, 16, 17, 18; Wills on Evidence, 1st ed., pp. 16-20, that strengthens the respondents’ case, but evacuation was not essential to Lord Atkinson’s opinion in the passage above quoted. It is therefore not necessary to be precise as to dates. The respondents are entitled to succeed without praying in aid the fact that the date of the collision was within a day or two of the actual evacuation. It is enough to say that the movement of troops or war equipment in time of war from one war base to another is, in the absence of evidence to the contrary, a warlike operation; and, if that is so, the loss of the Geelong was directly due to that operation.

 

R. A. Wright K.C. replied.

 

(1) [1915] P. 215, 271.

 

(2) [1921] 1 A. C. 99, 116.

 

(3) [1917] 2 K. B. 769; [1918] 2 K. B. 879.

 

(4) (1922) 38 Times L. R. 864; since reported [1923] 1 K. B. 59.

 

The House took time for consideration.

 

1922. Dec. 14. VISCOUNT CAVE L.C. My Lords, this appeal raises once more a question which has already been several times debated in this House – namely, the question of the meaning to be given to the expression “all consequences of hostilities or warlike operations” when contained in a policy of marine insurance. [His Lordship stated the facts and continued.]

 

Upon the above facts the arbitrator found that the loss of the Geelong was caused by a marine peril and not by a war peril, but submitted the question whether he was right in law in so doing, for the opinion of the Court. The case was argued before Bailhache J., who held that the Bonvilston, being engaged in carrying ambulance wagons and other Government stores from one war base to another war base, was engaged in a warlike operation, and accordingly gave judgment for the respondents. Upon the matter being taken to the Court of Appeal, that Court (consisting of the Master of the Rolls and Warrington and Scrutton L.JJ.) unanimously affirmed the decision of the learned judge, but upon somewhat varying grounds. Warrington L.J., while declining to express a definite opinion as to whether upon the facts found by the arbitrator he would have come to the same conclusion as Bailhache J., held that the Court was entitled to take notice of the historical fact that Mudros was the advance base for the British operations in the Gallipoli Peninsula, and that the collision happened in the middle of the operations connected with the evacuation of the Peninsula; and from these facts he inferred that the Bonvilston was at the time of the collision carrying warlike equipment from Mudros in connection with the evacuation, and for that reason was engaged in a warlike operation. On the other hand Scrutton L.J., while holding that the Court was at liberty to take from the St. Oswald Case (British and Foreign Steamship Co. v. The King (1)) the fact that Gallipoli was being evacuated on December 31 and January 1 and to conclude

 

(1) [1918] 2 K. B. 879. that the voyage of the Bonvilston from Mudros to Egypt on January 1 was part of that warlike operation, was prepared, apart from that circumstance, to hold that carrying ambulance wagons and Government stores from one war base to another in time of war, was a warlike operation. The Master of the Rolls, while he would have preferred to have from the arbitrator a more complete finding as to what the Bonvilstonwas doing at the time of the collision, did not dissent from the opinions of his colleagues. Thereupon the present appeal was brought.

 

My Lords, I am inclined to think that, in taking notice of the dates of the evacuation of Suvla Bay and Helles in the Gallipoli Peninsula, and in inferring from those dates (without any finding by the arbitrator) that the Bonvilston was taking part in that evacuation, the Court of Appeal carried too far the doctrine of judicial notice. There is no doubt that judicial notice may be taken of the existence of a state of war between this country and another: see per Lord Eldon in Dolder v. Lord Huntingfield (1), and per Lord Ellenborough in Rex v. De Berenger (2); and it was said in Taylor v. Barclay (3) that “it is the duty of the Judge in every Court to take notice of public matters which affect the Government of the country.” Further, where it is important to ascertain ancient facts of a public nature, the law permits historical works to be referred to: per Lord Halsbury in Read v. Bishop of Lincoln. (4) But I know of no authority for the proposition that the date of a particular event in a modern war, such as an engagement or a withdrawal, however important in itself, may be stated without proof, and an inference based upon it; and in any case I do not understand how such an inference can be drawn for the first time in a Court of Appeal, when the opportunity of rebutting the inference has passed by.

 

I, therefore, put on one side this element in the decision of the Court of Appeal, and proceed to consider the effect of the findings in the award; and first it is necessary to determine

 

(1) (1805) 11 Ves. 283, 292.

 

(2) (1814) 3 M. & S. 67, 69.

 

(3) (1828) 2 Sim. 213, 220.

 

(4) [1892] A. C. 644, 653.

 

what those findings mean. Your Lordships were invited by counsel for the appellant to proceed on the footing that the ambulance wagons and other Government stores referred to in the award were being transported by the Bonvilston for some perfectly peaceful purpose, that they may never have been landed at Mudros at all, and that they may have been intended for use in connection with some civil hospital at Alexandria, or for some other non-combatant purpose. It appears to me that any such assumption would do less than justice to the language of the award. When the arbitrator found that the Bonvilston was under requisition by the British Government, and was “carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria),” he must assuredly have intended the Court to understand that the cargo consisted of war material of the above character which was being transported from one war base – that is to say, from a point behind a fighting front from which the forces engaged on that front might be fed with men, munitions and supplies – to another war base for war purposes. At all events I so read the finding, and am satisfied that, if anything else had been intended, very different language would have been used. This, then, was the duty in which the Bonvilston was engaged at the time of the collision; and the question to be determined is whether this was a warlike operation within the meaning of the warranty.

 

My Lords, I do not propose to attempt to define the expression “warlike operations.” It is composed of ordinary English words in common use, and to define them by other like words might only produce a call for further definition. But it is possible to go some way in considering what is or is not included in the expression. Plainly it does not include all operations in war, or even all operations for the purposes of war. For instance, the Petersham, which was carrying iron ore to be used in the manufacture of munitions, and the Matiana, which was carrying cotton which might well have been intended to be used for the clothing of troops, were held by all the members of your Lordships’ House who heard the appeals in those cases not to be engaged in warlike operations: Britain Steamship Co. v. The King. (1) On the other hand, the expression is not confined to actual combatant operations against the enemy, whether by way of attack or of defence; for in the case of the Richard de Larrinaga (Liverpool and London War Risks Insurance Association v. Marine Underwriters of S.S. Richard de Larrinaga (2)) a warship on her way to pick up a convoy was held by this House to be engaged in a warlike operation. Indeed, it has been said that almost any movement of a warship in the course of her duties may be included in the phrase “warlike operations.” Probably the phrase includes all those operations of a belligerent Power or its agents which form part of or directly lead up to those processes of attack and defence which are of the essence of war. Thus, as was said by Lord Atkinson in the Petersham Case, the transfer of the combative forces of a belligerent Power from one area of war to another for combative purposes would be a warlike operation; and the same may, I think, be said of the transport in like manner of guns or munitions of war. Nor, in my opinion, can any valid distinction be drawn in this respect between munitions of war and the materials for equipping a fighting force, such as saddles for the cavalry, field kitchens for the infantry, or ambulance wagons for the wounded in battle. All these things are an essential part of the equipment of an army in the field, and to transport them to an area of war is a part of the warlike operations conducted in that area not less essential than the provision of men, guns, rifles, or ammunition.

 

If this be – as I think it is – the true meaning of the expression to be construed, then the finding of the arbitrator in this case (interpreted as I have interpreted it) contains ample material on which to support the decisions of Bailhache J. and the Court of Appeal. The Bonvilston was a vessel in the service of the British Government and engaged in the warlike operation of transporting war material from one war base to another, and while so engaged and sailing at full speed without lights, to avoid submarine attack, she without any negligence struck and sank the Geelong; and,

 

(1) [1921] 1 A. C. 99.

 

(2) [1921] 2 A. C. 141. if so, it follows, according to the decisions already given in this House, that the loss of the Geelong was a direct consequence of a warlike operation, and accordingly that the respondents are entitled to succeed. For these reasons I move your Lordships that this appeal be dismissed with costs.

 

VISCOUNT FINLAY (read by LORD ATKINSON). My Lords, this case arises upon an award and special case, and the question is whether the loss of the steamship Geelong was due to war risks or to ordinary marine risks.

 

In April, 1915, the Geelong was requisitioned by the Commonwealth Government for transport purposes in connection with the war (appendix, p. 2; case, para. 1). The terms of the requisition provided as follows (case, para. 2): “The Commonwealth Government accepts full war risks and will indemnify owners against any claim arising from the requisition in this connection, but owners must take all ordinary sea risks which could be covered by an ordinary marine policy in ordinary times of peace.” For the purposes of this case, however, it was agreed that the effect of this special definition was to make the Commonwealth Government responsible only for such risks of war as would be excluded from an ordinary marine policy by the presence therein of the usual f. c. and s. warranty, including in such warranty all consequences of hostilities or warlike operations: para. 3. The form of this warranty is not stated in the case, but the parties agreed at the Bar of your Lordships’ House that it is as follows: “Warranted free of capture, seizure and detention and the consequences thereof, or of any attempt thereat, piracy excepted, and also from all consequences of hostilities or warlike operations, whether before or after the declaration of war.” It follows that any risk excluded by this warranty will be a war risk for the purposes of this case. It is alleged by the claimants that the risk in the present case would be excluded from an ordinary policy by the words “from all consequences of hostilities or warlike operations.”

 

 

It is settled by decision that the mere fact that a collision between merchantmen caused by navigating at full speed at night without lights in obedience to regulations in force during wartime does not by itself make the loss one resulting from a war risk within the meaning of this clause. But if one or both of the vessels were engaged at the time in a warlike operation it becomes a war risk as being a consequence of a warlike operation. The case therefore resolves itself into the inquiry whether either or both of two merchant vessels, the Geelong and the Bonvilston, were on the facts of this case engaged in a warlike operation.

 

The facts appearing upon the special case are the following: The Geelong was totally lost by a collision between her and the British steamship Bonvilston in the East Mediterranean in latitude 32º 46′ N., longitude 30º 5′ E., at 7.27 P.M. on January 1, 1916. There was no negligence on the part of either vessel. The Geelong was bound from Port Said to Gibraltar for orders, and was laden with a cargo of general goods. The Bonvilston was under requisition by the British Government, and was carrying ambulance wagons and other Government stores from Mudros to Alexandria. Both Mudros and Alexandria were war bases. The Mediterranean at that time was the scene of considerable activity on the part of enemy submarines, and in obedience to the instructions of the naval authorities both vessels were, when the collision took place, being navigated at best speed and without showing any lights. It has not been alleged that the Geelong was engaged in a warlike operation. She was proceeding with a cargo of general goods to Gibraltar for orders. The question is, whether the Bonvilston was so engaged.

 

The question was referred to Mr. Raeburn K.C. as arbitrator. Mr. Raeburn in his award and special case, after stating the contentions of the parties (appendix, p. 4; paras. 10 and 11 of the award and special case) finds as follows: “In so far as it is a question of fact, I find, and in so far as it is a question of law (and in such case subject to the opinion of the Court), I hold that the loss of the Geelong was caused by a marine peril, and not by a war peril” (award, para. 12). The learned arbitrator does not state the grounds on which he arrived at this conclusion. Personally I should have been very glad to have had the help which might have been afforded by a statement from so able and experienced an arbitrator of the path by which he arrived at his conclusion. The award states his conclusion, subject to the opinion of the Court upon the case, and adds in para. 12: “The question for the opinion of the Court is whether I am right in law in holding that the loss of the Geelong was in the circumstances hereinbefore stated caused by a marine peril and not by a war peril.” The question, therefore, is whether upon the facts stated in the case, the loss of the Geelong was as a matter of law a loss by war peril.

 

Bailhache J. held that the Bonvilston, was engaged in a warlike operation. He says(1): “Now in my opinion, a vessel engaged as the Bonvilston was in carrying Government and British stores and ambulance wagons from one war base to another war base is engaged in a warlike operation.” He refers to the opinion expressed by Lord Atkinson(2) in reference to the case of the St. Oswald that a vessel engaged in the business of carrying some of the forces of the Crown from Gallipoli upon its evacuation to some other destination was engaged in a warlike operation. Bailhache J. then proceeds: “Now if it be a warlike operation to take troops from one place to another, I am unable to see myself that it is not equally a warlike operation to convey munitions of war or ambulance wagons for the use of wounded soldiers from one place to another.” And on this ground he answered the questions in the special case in favour of the claimants.

 

The decision of Bailhache J. was confirmed in the Court of Appeal, but not precisely upon the same ground. The Master of the Rolls, referring to the proposition laid down by Bailhache J., which I have already quoted, says(3): “I am not prepared to assent to such a broad proposition as that. I can quite conceive that a merchant vessel may be carrying

 

(1) [1922] 1 K. B. 706, 710.

 

(2) [1921] 1 A. C. 116.

 

(3) [1922] 1 K. B. 714. ambulance wagons and other Government stores from one war base to another war base and still in certain circumstances may not be engaged in a warlike operation, and I think, if left to myself, I should have said that we have not sufficient findings of fact to determine whether the learned Judge is right in his decision or not.” He goes on to say that personally he should have desired further information, but as his colleagues thought this unnecessary he would not dissent from their affirmance of Bailhache J. Warrington L.J. thought the Court was at liberty to take notice of the dates of the evacuation of Gallipoli and of the fact that Mudros was notoriously the advanced base for the operations in Gallipoli, and so to infer that the carriage of wagons and stores by the Bonvilston was part of the process of evacuation, and therefore a warlike operation. Scrutton L.J. put his decision on two grounds. In the first place he said(1): “I am prepared to hold that carrying ambulance wagons and Government stores from one war base to another in time of war was a warlike operation.” But he went on to say: “I also think, though, of course, it is not necessary for my decision on the view I take, that we are at liberty to take from the St. Oswald Case the fact that Gallipoli was being evacuated on December 31 and January 1, and to conclude that this voyage from Mudros to Egypt on January 1 was part of the warlike operation of the evacuation of Gallipoli. This, of course, if correct, makes the case much stronger.” I am not prepared to accept as correct the proposition that we may add to this special case additional facts which happen to have been proved in another case.

 

The question must be decided simply upon the facts stated in the special case itself. The precise dates and details of particular warlike operations cannot be regarded as matters of which the Court can take judicial notice. If they are material they should be found by the arbitrator. But in my opinion enough is stated in the case itself to enable us to answer the question. Para. 1 states that the Geelongwas requisitioned by the Commonwealth Government for

 

(1) [1922] 1 K. B. 718. transport purposes in connection with the war, but there is nothing to show that at the time of the collision she was engaged in any warlike operation. She was simply proceeding to Gibraltar for orders and was carrying a part cargo of general goods laden on Government account. It is otherwise in the case of the Bonvilston. The material facts with regard to her, as stated in the seventh paragraph of the case, are these: “The Bonvilston at the time of the collision was proceeding from Mudros to Alexandria. She was under requisition by the British Government, and was carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria).” That the Mediterranean was the scene of considerable activity on the part of enemy submarines is stated in the sixth paragraph of the case, and this is illustrated by the fact that both the vessels when the collision occurred were, in accordance with naval regulations, proceeding at night at their best speed and showing no lights.

 

In the absence of any circumstances tending to put a different colour upon the transaction, the carriage in time of war of ambulance wagons and other Government stores from one war base to another war base is carriage for the purposes of the war. It is immaterial whether the wagons and stores are being taken to a base for the purpose of warlike operations to be conducted from that base, or are being fetched away from a base because the warlike operations conducted from it have ceased. In either case the carriage is part of a military operation. It is possible that, as the Master of the Rolls said, there may be circumstances which would prevent such carriage in time of war of Government stores from one war base to another from being in the nature of a military operation. Such circumstances must be of a special character, and it cannot be supposed that if any such circumstances existed in the present case they would not have been stated by the arbitrator. In the absence of all explanation the only rational inference is that the carriage by the Bonvilston of the ambulance wagons and the other Government stores formed part of a warlike operation, and was therefore a war risk under the test on which the parties agreed, as set out in para. 3 of the case.

 

I think that the same result would have followed under the clause contained in the terms of requisition (para. 2 of case), as a collision caused by the fact that the two vessels were, under war regulations, proceeding in the dark at full speed in time of war without lights, hardly falls within the category of “ordinary sea risks.” This, however, is immaterial.

 

LORD DUNEDIN: My Lords, I concur with the Lord Chancellor and would not add anything were it not that this question has been raised, how far it is legitimate to take judicial notice of certain facts. I should not feel I was justified in resting any conclusion which I formed on such things as the particular dates when certain operations of war were begun or were in progress, when those dates had not been proved but had to be supplied from my own private knowledge. On the other hand, it is settled by authority that a judge may be aware that there is a state of war; and by that I do not understand a vague consciousness such as may have been felt by an ancient Roman when he noticed that the Temple of Janus was open, but an intelligent apprehension of the war as it is and the theatre of the operations thereof. Knowing then that there was a war in the Levant, that the Dardanelles and Syria were the scene of naval and military operations, and that it is found as a fact by the arbitrator that the vessel when lost through collision was carrying stores of a character to be employed in active warfare from one war base (Mudros) to another war base (Alexandria), I consider I have sufficient to warrant me in agreeing with the Court of Appeal that the risk was a war risk in the sense of the indemnity in question.

 

LORD ATKINSON. My Lords, any difficulty which arises in this case is due to the fact that some of the most important facts were not elicited at the arbitration. The collision took place on January 1, 1916. The Bonvilston was then engaged in carrying some ambulance wagons and some other Government stores from Mud os to Alexandria. The arbitration took place about five years later. Nothing would have been easier than to have ascertained and proved in the arbitration what was the condition of things at Mudros when the ship Bonvilston was loaded there; whether the evacuation of Gallipoli was or was not proceeding; what aid the island of Mudros lent to the process of evacuation, if any; for what purpose were these ambulances sent to Alexandria; was it in order that they should be destroyed, and so put out of the reach of the enemy, or were they to be sent home to England or to some peaceful depot, or was it that they should be used in aid of combative operations then being actively carried on, or about to be instituted by His Majesty’s military forces against the military forces of the Turkish Empire, with which His Majesty was then at war? It is much to be regretted that these matters were not inquired into.

 

It is well established that the Courts of law in this country can take judicial notice of the fact that a state of war exists between this country and some foreign enemy, but I am not at all sure that the Courts of law in this country can take judicial notice of the fact that any particular operation, such as a battle or a siege, an advance or retreat, or the evacuation of a particular field of action actually took place, and much less when such an operation began or ended.

 

Whether the Bonvilston, when carrying these ambulance wagons to Alexandria, was or was not engaged in a “warlike operation” will depend very much, if not entirely, on the purpose for which they were carried there.

 

In the judgment which I delivered in Britain Steamship Co. v. The King (1), which I would not have alluded to but that it has been so often referred to, I clearly indicated that this purpose is in such cases a vital matter to be considered. I said: “The transfer of the combative forces of a power from one area of war to another, or from one part of an area of war to another part, for combative purposes, would, I think, be a ‘warlike operation.'” I adhere to that opinion, and I

 

(1) [1921] 1 A. C. 99, 114. think the principle applies to the carriage of wagons, ammunition, guns or other material things carried to and discharged at a particular place for the purpose of being used by the forces of the Crown operating in a field of action in which the landing place is situated, in attacking their enemy, or defending themselves against his attacks. I think the words “attacking” and “defending” in this sentence must be taken to include the providing of ancillary things such as beds to lie on, or food to eat, which are necessary to fit the combatants for attack and defence.

 

Sir John Simon most ingeniously argued that the words “war base” as used in the following passage of the case stated: “She (the Bonvilston) was under requisition by the British Government and was carrying ambulance wagons and other Government stores from one war base (Mudros) to another war base (Alexandria)” indicated with sufficient clearness the purposes these things fulfilled at the place from which they were taken, and those they were designed and intended to fulfil at the place to which they were carried. For the purposes of this argument, he distinguished between a “war base” and a “base of supply.” A base of supply, he said, is a place where war stores are accumulated and preserved ready to be drawn upon when occasion may require for the needs of the war; but it may be far distant from the field of war. In that sense the stores in London and elsewhere in this country containing clothes and boots, rifles and ammunition, etc., were in the great war bases of supply, but he said, as I understood him, that “a war base” meant a place with which the combative forces actually carrying on the war were, as it were, in touch, that it was a place so near to the fighting lines that the goods collected there could be made available to supply the daily needs of the combative forces, whatever position they might hold or occupy in the whole field of war. It was a place to which nothing was brought not deemed to be necessary to supply these needs. If that be so, then it may fairly be inferred that everything brought to such a base is dedicated to the use I have mentioned, and is brought there for the purpose of being available for that use. I have thought much over this argument, and have come to the conclusion that it is sound and may be acted upon with safety. In my opinion, therefore, the respondents have been enabled by relying on these words “war base” to discharge the burden of proof that lay upon them. I think they established that the voyage of the Bonvilston from Mudros to Alexandria was a warlike operation, that it was the proximate cause of collision, and that the appeal fails and should be dismissed with costs.

 

LORD SUMNER. My Lords, when the Geelong and the Bonvilston came into collision, both ships were navigating at best speed at night without lights under imperative Admiralty orders, and the Geelong, having the Bonvilston on her starboard hand, was the give-way ship. Sir Samuel Evans P., however, found that neither ship was guilty of negligence and this finding is accepted. The whole cause of the collision was that the Geelong did not give way and so avoid the collision, because the Bonvilston had made herself invisible. She was carrying Government property, so described as to show that, prima facie, it was material of war, transported from one “war base” to another “war base,” both in the Levant, and was doing so with lights out for fear of enemy submarines. This operation was the direct cause of the collision. The question is whether it was “warlike” within the agreed effect of the contract.

 

Had this case been the first of its class to be decided, instead of being the latest, I can understand that some difficulty might have been felt in saying that the operation was warlike, for in itself it was peaceable enough. It was unaggressive; it was unobtrusive, not to say furtive; and the Bonvilston would have behaved in exactly the same way, if she had been carrying a purely commercial cargo between exclusively mercantile ports. The difficulty is to distinguish this case, if not from previous decisions, for none quite cover the point, at least from dicta more or less closely involved in them. It is not quite satisfactory to say that, if the operation of carrying troops would be warlike, at any rate when they are in fighting trim, the operation must be also warlike of carrying one or more of those appurtenances without which it would be inhuman to send them into battle. This is after all only an argument from analogy and analogy is often deceptive. “Warlike operations” is an expression deliberately wide and incidentally rather vague, but it has been held that a mere operation during war is not warlike, if it is not also an operation of war. On the other hand, what is more like war than doing with the indispensable equipments of an army such things as have to be done, in order that the army may itself engage the enemy with proper provision for those who fall? I think that the real question is, whether the learned arbitrator found the facts sufficiently to bring the case within this consideration, when he said “she was under requisition by the British Government and was carrying ambulance waggons and other Government stores from one war-base (Mudros) to another war-base (Alexandria).”

 

My Lords, it is certainly legitimate to consider what is implied in this finding as well as what is expressed in it. “War base” is a term which the special case does not define. I doubt if it has a definition for present purposes. A war base is evidently a place used for certain purposes of military supply in a time and in an area of war. The term is an administrative one and, whatever it may connote in a textbook on the theory of war, in practice it is simply the place chosen by the competent military authority, on which to base other operations of war. A place is, therefore, not a war base because nature made it so or owing to the fitness of things, but because those directing the war chose it for that purpose. I think that a Court of law may with propriety, and I hope with substantial conformity to the fact, presume till the contrary is shown, that Government material of war is not idly shifted from war base to war base, or transported at great cost otherwise than for war purposes. If so, it seems to me to be implicit in the facts found, that this transportation of these stores was a warlike operation. This appears to have been the view of Scrutton L.J., and, subject to some comment on the language which he used, it was the view of Bailhache J. also. The learned judge says(1): “if it be a warlike operation to take troops from one place to another, I am unable to see myself that it is not equally a warlike operation to convey munitions of war or ambulance waggons for the use of wounded soldiers from one place to another.” I do not think that the learned judge meant to say, at any rate with reference to the transport of chattels, that transport of munitions of war from any place to any other place is necessarily a warlike operation. Possibly there may be some difference in the case of the transport of troops, of which it may be said that any transportation of them in time of war is warlike, but, in the case of chattels, I assume that his remark was intended to be directed to the case in hand as found in the special case.

 

My Lords, the objection is made, that some connection must be shown between the voyage with its termini on the one hand and the chattels transported on the other, and that, if this is not shown, the claimant has not proved his case. If, for example, the Government property was neither taken on board at Mudros nor was intended to be discharged at Alexandria; if it had never belonged to the Mudros stock and was not to belong to the Alexandria stock, then the transport from war base to war base was purely fortuitous and had no connection with the property transported, at least none which would colour the transportation with the quality of being a warlike operation. In certain circumstances it may be that this objection would be valid. If the stores had been shipped in England for Hong Kong, and the calls at Mudros and at Alexandria had been made for ship’s purposes or in connection with other cargo, so that they were mere incidents in a prolonged voyage, or if the goods formed but a small part of the lading of the ship, which otherwise consisted of ordinary merchandise, different considerations, I dare say, would arise. It seems to me, however, that we should be imputing to the learned arbitrator

 

(1) [1922] 1 K. B. 710. a finding equally irrelevant and misleading, unless we read it as implying a material connection between the termini of the voyage and the object and character of the transportation. I can have no doubt myself that his finding means, that, for good reasons connected with the war, the military authorities in the course of their duty depleted a stock at one war base with the object of increasing that at another, where presumably it would be of more use for the military purpose for which it was primarily designed.

 

It is further suggested that the Court of Appeal considered the findings of the arbitrator insufficient in themselves to warrant the conclusions drawn by Bailhache J., without the introduction of facts, which had not been found, but which might be supplied on appeal by taking what is called judicial notice of them. These facts appear to have been (1.) that the voyage of the Bonvilston synchronised with the evacuation of the Dardanelles, and (2.) that Mudros was so intimately connected with the operations in the Dardanelles, that the evacuation of stores from Mudros might be regarded as part of the evacuation of some of the positions in the Gallipoli Peninsula.

 

My Lords, to require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insist on having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easily become pedantic and futile. Least of all would it be possible to require this detached and blindfold attitude towards events which the course of the late war has burnt into the memories of us all. It does not, however, seem to me, as at present advised, that the month and day at or about which a particular military movement was carried out, or that the existence between the Gallipoli Peninsula and Mudros Bay of the relation of active front to supply base, are matters as to which everybody can be deemed to be fully and accurately informed or of which judges can be required, in the legal sense of the words, to take judicial notice; still less is the fact – which is a matter of expert military training – that, in such a relation and about such a time, the simultaneous removal of such things as ambulance wagons from the base would have any particular connection with the operations going forward at the active front. At any rate, I have not found any authority which goes nearly so far, and there are many which, surprising as they are in any case, would be absurd, if the rule really went to this extent.

 

I do not, however, think that this is a true case of taking judicial notice, for that involves that, at the stage when evidence of material facts can be properly received, certain facts may be deemed to be established, although not proved by sworn testimony, or by the production, out of the proper custody, of documents, which speak for themselves. Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer. In the present case the opportunity for introducing new evidence had passed. The question was one of law – namely, what was implicit in the facts stated by the learned arbitrator, who was the judge of fact selected by the parties. As it seems to me, all that the Court of Appeal obtained by noticing historical facts, whether from general recollection or from the report of the case of the St. Oswald, was equally to be got by considering that this transportation took place in time of war from one “war base” to another “war base,” both situated in the Eastern Mediterranean, and both more or less infested by enemy submarines, and referred to articles which are not primarily subjects of ordinary commerce, but are naturally provided for use in warlike operations, at any rate when they are at a war base. If so, and without more, I think it is right to hold, that in the absence of any contradiction or modification of these facts, this transportation itself was a warlike operation also. Those who carried it out were not indeed combatants, but they were ministering to combatant needs, and were themselves exposed to risk of attack and destruction from combatants on the other side. If not an actual operation of war, this was a warlike operation, and I think it falls outside the class, which is properly described as being merely operations during war. I therefore think that the appeal fails.

 

 

 

 

 Order of the Court of Appeal affirmed and

appeal dismissed with costs.

 

Lords’ Journals, Dec. 14, 1922.

 

 

Solicitors for the appellant: Parker, Garrett & Co.

 

Solicitors for the respondents: Ince, Colt, Ince & Roscoe.