#6604 - The Mediana - Commercial Remedies BCL

The Mediana

Facts

The Mersey Docks and Harbour Board, who as owners of the lightship Comet were respondents, are by statute charged with the duty of lighting the approaches to the river Mersey. There are four stations to be lighted, and, for the purpose of carrying out the work, the Mersey Docks and Harbour Board own six lightships, four of which are always in use, and a fifth is kept to replace the lightships as they are brought in for overhaul. A sixth (the Orion) lies moored in the Mersey ready to take the place of any one of the four lightships in case of special emergency, such as damage by collision or other accident. On April 23, 1898, the steamship Mediana , belonging to the appellants, came into collision with, and sank, the Comet , one of the lightships. After the collision the Orion was towed out to take the place of the Cornet, and was so engaged for seventy-four days, during which period she was not required for any other purpose. The appellants admitted liability, subject to a reference to the Liverpool District Registrar to assess the damages.

The respondents brought an action in the Admiralty Division against the appellants, and filed a claim consisting of eight items, the first seven covering all the actual out of pocket expenses (for removing and repairing the Comet and moving the Orion) to which the respondents were put: these were not disputed. Item 8 was as follows: “Loss of the use of the lightship Comet, or hire of the services of the lightship Orion on the station from April 23 to July 6, 1898—seventy-four days at 4l. 4s. - 310l. 6s.” The expense to the board of maintaining the sixth lightship, including interest on capital invested in her, amounts to about 1000l. per annum.

Holding

Earl of Halsbury

Damages for infringement of a right

I may say that I myself intended to lay it down, though I may have expressed myself imperfectly, namely, that where by the wrongful act of one man something belonging to another is either itself so injured as not to be capable of being used or is taken away so that it cannot be used at all, that of itself is a ground for damages.

Nominal Damages

“Nominal damages” is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term “nominal damages” does not mean small damages.

Application to Facts

Now, in the particular case before us, apart from a circumstance which I will refer to immediately, the broad proposition seems to me to be that by a wrongful act of the defendants the plaintiffs were deprived of their vessel. When I say deprived of their vessel, I will not use the phrase “the use of the vessel.” What right has a wrongdoer to consider what use you are going to make of your vessel? More than one case has been put to illustrate this: for example, the owner of a horse, or of a chair. Supposing a person took away a chair out of my room and kept it for twelve months, could anybody say you had a right to diminish the damages by shewing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd; but a jury have very often a very difficult task to perform in ascertaining what should be the amount of damages of that sort. I know very well that as a matter of common sense what an arbitrator or a jury very often do is to take a perfectly artificial hypothesis and say, “Well, if you wanted to hire a chair, what would you have to give for it for the period”; and in that way they come to a rough sort of conclusion as to what damages ought to be paid for the unjust and unlawful withdrawal of it from the owner. Here, as I say, the broad principle seems to me to be quite independent of the particular use the plaintiffs were going to make of the thing that was taken, except—and this I think has been the fallacy running through the arguments at the bar—when you are endeavouring to establish the specific loss of profit, or of something that you otherwise would have got which the law recognises as special damage.

Lord Shand

There is no question of amount here involved, because the parties are...