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The ship’s cat

Feature Articles

Cats once played a valuable role in the sea carriage of goods but by the 19th century their maritime supremacy had been eroded by judicial decisions.

By Ken Aitken

In Tudor times, English mercantile law embodied the customs and usages of mariners and merchants. It was based on civil law and applied more or less consistently in Western trading countries. Under civil law, liability tended to be grounded on fault. The master of a ship would not be liable for damage done to cargo by rats if there was a cat on board. If he carried a cat he had done all that could be expected of him to protect the cargo from rats. Otherwise “the master must be answerable for that harm which the rats for want of a cat do to any merchandise”.[1]

In the 17th century and after, the common law courts of England extended their jurisdiction over commercial matters. They took a stricter view of the master’s obligations. In Dale v Hall,[2] decided in 1750, the plaintiff shipped knives and other hardware with the defendant. The goods were spoiled by water when rats made a leak in the vessel. The defendant claimed he had taken all possible measures to prevent injury to the goods. The King’s Bench held that it was immaterial whether or not the defendant was negligent; that the duty of the master of a general ship (carrying goods for a number of unconnected consignors) was to keep the goods and deliver them safely except to the extent that they were damaged by the Act of God or by the King’s enemies.

In 1852, the question of whether the carrying of a cat would relieve the ship owner and master from liability for damage to cargo by rats came squarely before the Court of Exchequer Chamber in Laveroni v Drury.[3] The plaintiffs had delivered to the defendant 30 tubs of parmesan cheese to be carried on the defendant’s ship, Anne Sophia, from Genoa to London. Although the master had two cats on board, a number of the cheeses were eaten and damaged by rats during the voyage. Counsel for the defendant cited foreign writers of great eminence and authority, exponents of the civil law, in support of the proposition that a ship’s master who kept cats was excused from liability for damage by rats.

Pollock CB, delivering the Court’s judgment, rejected the opinion of the eminent foreign writers. He held that the owner and master of a general ship were, by the law of England, common carriers and liable as such for all damage to cargo during the voyage except damage caused by the Act of God or the Queen’s enemies, unless their responsibilities were varied by contract. He then referred to what had become an almost universal practice, the issue of a bill of lading by the ship’s master for goods received by him for carriage. He held that the bill of lading recorded the contract between the parties and that the contract might qualify or enlarge the ship owner’s responsibility as a common carrier. In this case, the bill of lading was found to contain an exemption of the ship owner from liability for damage caused by “the Act of God, the Queen’s enemies, fire, and all and every other danger and accidents of the seas, rivers and navigation, of whatever nature and kind . . . ”. The Court rejected the contention that the damage to the cheese fell within this exception.

Pollock CB said:[4] “The only part of the exception under which it could possibly be contended to fall is, as ‘a danger or accident of the sea and navigation’; but this we think includes only a danger or accident of the sea or navigation properly so called, viz. one caused by the violence of the wind and waves acting upon a seaworthy and substantial ship, and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which a commodity such as cheese is equally liable in a warehouse on land as in a ship at sea.”

A further comment by Pollock CB suggested that the great days of the ship’s cat were drawing to a close:[5] “Now, whatever might have been the case when Roccus (an authority cited by the defendant) wrote, we cannot but think that rats might now be banished from a ship by no very extraordinary degree of diligence on the part of the master; and we further are very strongly inclined to believe, that, in the present mode of stowing cargoes, cats would offer a very slight protection, if any, against rats. It is difficult to understand how in a full ship a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it.”

In Kay v Wheeler,[6] the defendants, owners of the Victoria, had made great efforts to rid the vessel of vermin. Before leaving London for Ceylon, a rat-killer was employed. While the Victoria was at Colombo and during the voyage back to London, she had on board two cats and two mongoose, “a species of Cingalese ferret very destructive to rats”. Despite these precautions, when 412 bags of coffee carried for the plaintiff were discharged in London, some of them were found to have been gnawed by rats and the contents partly eaten and damaged. The Court of Exchequer Chamber did not regard the defendant’s endeavours to be relevant. The bill of lading that recorded the contract between the parties required the defendant to deliver the coffee in good order subject to exceptions. The only relevant exception, from damage caused by “all and every other dangers and accidents of the seas, rivers and navigation of whatever nature and kind . . . ”, was held not to apply.

Changes to the law and commercial practice, and improvements in ships, had ended the reign of the ship’s cat.

Laveroni v Drury[7] decided that direct damage to cargo by rats did not fall within the exception of damage caused by the perils of the sea. In a subsequent case,[8] the House of Lords decided that damage to cargo arising from injury to the ship by rats fell within the exception. The plaintiff’s rice was carried in the defendant’s steamship from Akyab in Burma to the German port of Bremen under a charter party and bills of lading which excepted the ship owner from liability for damage to the cargo caused by dangers and accidents of the seas. During the voyage, rats gnawed a hole in a lead pipe connecting the ship’s bathroom to the sea. As a result, sea water got in and damaged the rice. The House of Lords decided that the damage was caused by a danger or accident of the sea. The ship owner was not liable. Rats made a leak in the vessel in Dale v Hall,[9] but apparently the ship owner’s liability at common law had not been modified by contract.

NOTES

KEN AITKEN has been a practitioner for more than 50 years. He admires cats but likes dogs.


[1] Holdsworth, A History of English Law (1966) vol VIII, 258/9.

[2] 1 Wils. KB 281; 95 ER 619.

[3] 8 Ex 166; 155 ER 1304.

[4] Note 3 above, at 171, 1306.

[5] Note 3 above, at 172, 1307.

[6] (1867) LR 2 CP 302.

[7] Note 3 above.

[8] Hamilton Fraser & Co and Pandorf & Co (1887) 12 AC 518 HL(E).

[9] Note 2 above.

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