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(1873-74) L.R. 9 Ex.

125 Page 1
(1873-74) L.R. 9 Ex. 125 (1873-74) L.R. 9 Ex. 125 (Cite as: (1873-74) L.R. 9 Ex. 125)

Gorris v Scott certain sheep of the plaintiffs', to be carried by the


defendant for reward on board the said vessel from
Exchequer Hamburg to Newcastle, and there delivered to the
plaintiffs; and the defendant, as such owner, received
and started on the said voyage with the sheep for the
Kelly, Pigott, Pollock, and Amphlett C.B.
purposes and on the terms aforesaid; that all
conditions were fulfilled, &c., yet the place in and on
1874 April 22 board the said vessel which was used and occupied
by the sheep during the voyage was not, during the
Statutory Duty—Contagious Diseases (Animals) Act, said voyage or any part thereof, divided into pens by
1869. substantial or other divisions, by reason whereof
divers of the sheep were washed and *126 swept
When a statute creates a duty with the object of away by the sea from off the said ship, and were
preventing a mischief of a particular kind, a person drowned and wholly lost to the plaintiffs.
who, by reason of another's neglect of the statutory
duty, suffers a loss of a different kind, is not entitled Second count, similar to the first, but setting out a
to maintain an action in respect of such loss. third regulation: “that the floor of each such pen
should have proper battens or other foot-hold
The defendant, a shipowner, undertook to carry the thereon,” and alleging the loss of the sheep as
plaintiffs' sheep from a foreign port to England. On aforesaid to have been caused by the want of such
the voyage some of the sheep were washed overboard battens.
by reason of the defendant's neglect to take a
precaution enjoined by an order of Privy Council, Demurrer and joinder.
which was made under the authority of the
Contagious Diseases (Animals) Act, 1869, s. 75:— Shield, in support of the demurrer. The statute was
made for the furtherance of a public purpose, and not
that the object of the statute and the order being to to secure any private benefit, and the observance of
prevent the spread of contagious disease among its provisions is enforced by a penalty: 32 & 33 Vict.
animals, and not to protect them against perils of the c. 70, s. 103, and Cullen v. Trimble. Its infringement,
sea, the plaintiffs could not recover. therefore, gives no ground for an action.

DECLARATION, first count: that after the passing The preamble of the Act, as well as its whole
of the Contagious Diseases (Animals) Act, 1869, the structure, and s. 75 in particular, under which this
Privy Council, in exercise of the powers and order is made, shew that the Act is entirely directed
authorities vested in them by the Act (s. 75), made an to the prevention of contagious *127 diseases among
order (called the Animals Order of 1871) with cattle; and if, under s. 75, the Privy Council had made
reference to animals brought by sea to ports in Great orders directed to some other purpose, they would
Britain, and to the places used and occupied by such have exceeded their powers. The order, then, must be
animals on board any vessel in which the same construed with reference to the language of s. 75 and
should be so brought to such ports; and thereby, the purpose of the Act, and, so understood, its object
amongst other things, ordered (1) that every such is not to secure the owners of sheep and cattle from
place should be divided into pens by substantial loss by the perils of the sea, but to protect the country
divisions; (2) that each such pen should not exceed against the introduction and the spread of murrain.
nine feet in breadth and fifteen feet in length; that This circumstance brings the case within the
afterwards and whilst the order was in force the authority of Stevens v. Jeacocke , and distinguishes
plaintiffs delivered on board a vessel called the it from Couch v. Steel and Atkinson v. Newcastle
Hastings, to the defendant as owner of the vessel,

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(1873-74) L.R. 9 Ex. 125 (1873-74) L.R. 9 Ex. 125 (Cite as: (1873-74) L.R. 9 Ex. 125)

and Gateshead Waterworke Co. that although, when penalties are imposed for the
violation of a statutory duty, a person aggrieved by
Herschell, Q.C. (J. W. Mellor with him), contrà. its violation may sometimes maintain an action for
Stevens v. Jeacocke is distinguishable on the ground the damage so caused, that must be in cases where
that a specific remedy was given by the statute; the the object of the statute is to confer a benefit on
present case falls within Atkinson v. Newcastle and individuals, and to protect them against the evil
Gateshead Waterworke Co. , where it was held that consequences which the statute was designed to
the imposition of a penalty which was not intended as prevent, and which have in fact ensued; but that if the
a compensation did not exclude the right of action. object is not to protect individuals against the
These precautions must be considered as enacted consequences which have in fact ensued, it is
generally, at least to this extent, that all persons otherwise; that if, therefore, by reason of the
engaged in the importation of animals must be taken precautions in question not having been taken, the
to know of the existence of the regulations, and to plaintiffs had sustained that damage against which it
contract with reference to them. The plaintiffs were was intended to secure them, an action would lie, but
entitled to assume that the defendant would perform that when the damage is of such a nature as was not
all the duties cast upon him by the law, including contemplated at all by the statute, and as to which it
compliance with these orders; and that being so, the was not intended to confer any benefit on the
defendant has impliedly contracted with the plaintiffs plaintiffs, they cannot maintain an action founded on
that he would perform them.KELLY, C.B. the neglect. The principle may be well illustrated by
the case put in argument of a breach by a railway
This is an action to recover damages for the loss of a company of its duty to erect a gate on a level
number of sheep which the defendant, a shipowner, crossing, and to keep the gate closed except when the
had contracted to carry, and which were washed crossing is being actually and properly used. The
overboard and lost by reason (as we must take it to be object of the precaution is to prevent injury from
truly alleged) of the neglect to comply with a certain being sustained through animals or vehicles being
order made by the Privy Council, in pursuance of the upon the line at unseasonable times; and if by renson
Contagious Diseases (Animale) Act, 1869. The Act of such a breach of duty, either in not erecting the
was passed merely for sanitary purposes, in order to gate, or in not keeping it closed, a person attempts to
prevent animals in a state of infectious disease from cross with a carriage at an improper time, and injury
communicating it to other animals with which they ensues to a passenger, no doubt an action would lie
might come in contact. Under the authority of that against *129 the railway company, because the
Act, certain orders were made; amongst others, *128 intention of the legislature was that, by the erection
an order by which any ship bringing sheep or cattle of the gates and by their being kept closed individuals
from any foreign port to ports in Great Britain is to should be protected against accidents of this
have the place occupied by such animals divided into description. And if we could see that it was the
pens of certain dimensions, and the floor of such pens object, or among the objects of this Act, that the
furnished with battens or foot holds. The object of owners of sheep and cattle coming from a foreign
this order is to prevent animals from being port should be protected by the means described
overcrowded, and so brought into a condition in against the danger of their property being washed
which the disease guarded against would be likely to overboard, or lost by the perils of the sea, the present
be developed. This regulation has been neglected, action would be within the principle.
and the question is, whether the loss, which we must
assume to have been caused by that neglect, entitles But, looking at the Act, it is perfectly clear that its
the plaintiffs to maintain an action. provisions were all enacted with a totally different
view; there was no purpose, direct or indirect, to
The argument of the defendant is, that the Act has protect against such damage; but, as is recited in the
imposed penalties to secure the observance of its preamble, the Act is directed against the possibility of
provisions, and that, according to the general rule, the sheep or cattle being exposed to disease on their way
remedy prescribed by the statute must be pursued; to this country. The preamble recites that “it is

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(1873-74) L.R. 9 Ex. 125 (1873-74) L.R. 9 Ex. 125 (Cite as: (1873-74) L.R. 9 Ex. 125)

expedient to confer on Her Majesty's most the purposes pointed out in the Act; and if the Privy
honourable Privy Council power to take such Council had gone out of their way and made
measures as may appear from time to time necessary provisions to prevent cattle from being washed
to prevent the introduction into Great Britain of overboard, their act would have been ultra vires. If,
contagious or infectious diseases among cattle, sheep, indeed, by reason of the neglect complained of, the
or other animals, by prohibiting or regulating the cattle had contracted a contagious disease, the case
importation of foreign animals,” and also to provide would have been different. But as the case stands on
against the “spreading” of such diseases in Great this declaration, the answer to the action is this:
Britain. Then follow numerous sections directed Admit there has been a breach of duty; admit there
entirely to this object. Then comes s. 75, which has been a consequent injury; still the legislature was
enacts that “the Privy Council may from time to time not legislating to protect against such an injury, but
make such orders as they think expedient for all or for an altogether different purpose; its object was not
any of the following purposes.” What, then, are these to regulate the duty of the carrier for all purposes, but
purposes? They are “for securing for animals brought only for one particular purpose.POLLOCK, B.
by sea to ports in Great Britain a proper supply of
food and water during the passage and on landing,” I also think this demurrer must be allowed. I agree
“for protecting such animals from unnecessary that it is essential to remember that this action is
suffering during the passage and on landing,” and so founded on a contract, a contract between the
forth; all the purposes enumerated being calculated freighter and the shipowner, and in that respect (and
and directed to the prevention of disease, and none of for other reasons also), it differs from the case of
them having any relation whatever to the danger of Stevens v. Jeacocke , and more nearly resembles
loss by the perils of the sea. That being so, if by Atkinson v. Newcastle and Gateshead Waterworks
reason of the default in question the plaintiffs' sheep Co. Now in this state of circumstances it would be
had been overcrowded, or had been caused open to the plaintiffs *131 to allege negligence
unnecessary suffering, and so had arrived in this generally on the part of the shipowner, and then the
country in a state of disease, I do not say that they observations would apply which were made in
might not have maintained this action. But the Blamires v. Lancashire and Yorkshire Ry. Co. ,
damage complained of here is something totally apart where the Lord Chief Baron laid down the law very
from the object of the Act of *130 Parliament, and it clearly in terms which were afterwards approved of
is in accordance with all the authorities to say that the in the Exchequer Chamber. The whole question
action is not maintainable.PIGOTT, B. would be open to the jury, whether the defendant had
been guilty of negligence in omitting, to observe a
For the reasons which have been so exhaustively precaution pointed out in the order in question. But
stated by the Lord Chief Baron, I am of opinion that here no other negligence is alleged than the omission
the declaration shews no cause of action. It is of that precaution; we must assume that the sheep
necessary to see what was the object of the legislature were washed overboard merely in consequence of
in this enactment, and it is set forth clearly in the that omission, and the question is, whether that
preamble as being “to prevent the introduction into washing away gives a cause of action to the
Great Britain of contagious or infectious diseases plaintiffs. Now, the Act of Parliament was passed
among cattle, sheep, or other animals,” and the alio intuitu; the recital in the preamble and the words
“spread of such diseases in Great Britain.” The of s. 75 point out that what the Privy Council have
purposes enumerated in s. 75 are in harmony with power to do is to make such orders as may be
this preamble, and it is in furtherance of that section expedient for the purpose of preventing the
that the order in question was made. The object, then, introduction and the spread of contagious and
of the regulations which have been broken was, not infectious diseases amongst animals. Suppose, then,
to prevent cattle from being washed overboard, but to that the precautions directed are useful and
protect them against contagious disease. The advantageous for preventing animals from being
legislature never contemplated altering the relations washed overboard, yet they were never intended for
between the owners and carriers of cattle, except for that purpose, and a loss of that kind caused by their

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(1873-74) L.R. 9 Ex. 125 (1873-74) L.R. 9 Ex. 125 (Cite as: (1873-74) L.R. 9 Ex. 125)

neglect cannot give a cause of action.AMPHLETT,


B.

I am of the same opinion.Judgment for the defendant.


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