Esso Petroleum Co Ltd v Southport Corporation (1956)

The first pollution case to reach the house of the lords was in 1956, which involve Esso Petroleum Co Ltd v. Southport Corporation. In this case an oil tanker belonging to the defendant bound from Liverpool to Preston developed a steering fault when approaching a tide water in rough weather because of the bad weather and the danger of turning round, the master decide to continue into the channel. However, the vessel took a heavy shear to starboard and ran aground on a coastal wall. In other to save the vessel crew from danger, the master discharged 400 tonnes of oil to lighten the vessel, and polluted the Southport coastline. Southport Corporation claimed damages on the ground that the deposit of oil on their property constituted a nuisance, or was a trespass, and also negligence (Chao, 1996).

In the judgment it involves different phases. At the first instance the judgment by the court given by judge Devlin J. gave judgment in favour of the defendants, dismissing the liability claim brought against the ship owners. But the plaintiff went on to appeal to the court of which the decision was reversed by the House of the Lord. This case explains how hard it is to bring an action, based on the three separate torts, which happened in the case of coastline by an oil spill at sea (Chao, 1996). However to bring an action in trespass, there must be unjustifiable contact with the plaintiff’s property. This contact will have to be direct, if it is indirect, then it will be considered as nuisance. The damage cause must be intentional, and if it is not, this will probably constitute negligence as opposed to trespass. The defendant therefore will only answer for damages caused directly by his intentional contact with the rights of others. In the esso petroleum co ltd v Southport corporation case, trespass was rarely discussed since it was turned down from the start for reasons of necessity, the situation of the defendants made the discharge of oil unavoidable. Lord Tucker emphasized the direct nature of trespass in order to rule out such action in this case. That he is inclined to agree with Denning L.J that trespass does not base on the facts of this as a result of discharge of oil which was not done directly on to the foreshore but outside the coastline, and that the person who has suffered damage cannot recover in trespass. Secondly, action in trespass requires that the act of contact is committed willing, as first affirmed in Flower v. Lanning case (Chao, 1996).

The alternative approaches that could be used in relation to the situation discussed above are as follows:

a) Trespass to land: In order to support the action of trespass to land, the act must be done by the defendant physically, and such act should be done directly on to the plaintiff’s land. In the case of Reynolds v. Clarke, where the defendant put a rain sport on his house from which water poured on the walls of the plaintiff’s house and rotted them. The plaintiff however brought an action for trespass, but failed because he should have brought an action upon the case. And this is because the prejudice to the plaintiff was not immediate, but consequential. Another case cited here is between Read v. J. Lyons and Co. Ltd, Viscount Simon L.C. confirm the same situation when he observed that the issues in Fletcher v. Rylands did not constitute a case of trespass because the damage was indirectly and not direct. In relating this situation with that of esso petroleum co ltd v. Southport corporation, it can be deduce that Southport Corporation cannot here sue in trespass, because the discharge of oil was not done directly on to their foreshore, but outside the coastline, but was carried by water tide on to their land, which was indirect and not direct (Wilde, 2002).

b) Private Nuisance: For this action to be related in the case of private nuisance, the defendant must have used his own land or some other land in such a way that it will be injuriously to affect the enjoyment of the plaintiff’s land. ‘The ground of responsibility’, said Lord Wright in Sedleigh-Denfield v. O’ Callaghan, is the possession and control of the land from which the nuisance proceeds. However, in relating this principle, it can be seen that the discharge of oil was not a private nuisance, because it did not involve the use by defendants land, but only of a ship and sea.

C) Public Nuisance. The term ‘public nuisance’ covers a multitude of sins, great and small. In the case of Regina v. Mutters, where the owner of a quarry in Torquay, when blasting a rock, added

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an too much of gunpowder into a hole, of which the explosion was so great that it scattered rocks and stones into the houses and gardens of people in the neighbourhood and on to the road. The defendant in this case only did this on a single occasion, but he was convicted at the Devon Sessions of a public nuisance, and the strong court consisting of pollock, C.B., Willes J., Channell B. and Byles and Shee JJ. upheld the conviction. This also recalls the celebrated case of Scott v. Shepherd, where the defendant threw a lighted broken firecracker that burns but does not explode into a crowded market house, and it was thrown from one stallholder to another until it hit and injured the plaintiff’s eye. The defendant here is guilty of public nuisance. Relating this to esso petroleum co ltd and Southport corporation case, it will be seen that the discharge of 400 tons of oil into the coastline was a public nuisance, It would be unavoidable for it to spread out to some other part of the coast. However, the master accepted the possibility of the oil flowing into the Southport foreshore. The defendants can, therefore be called upon to account for it.

d) Burden of Proof: One of the major differences between an action of public nuisance and that of negligence is the burden of proof. In public nuisance, once the nuisance is proved and the defendant is shown to be responsible for it, then legal burden will be shifted on to the defendant to justify or excuse himself. If he refuses to comply, he will be held responsible. But in the case of negligence the legal burden in most cases remains throughout on the plaintiff. In negligence, the plaintiff might probably gain much help from provisional presumptions in which at the end of the case the Judge will definitely ask himself if the legal burden is discharge. If the matter is left equally balance, the plaintiff fails. But in public nuisance, trespass, the legal burden shifts to the defendant, which is not sufficient for him to leave the matter in doubt. He must plead and prove a enough justification or excuse.

f) Justification or Excuse: Here the defendant seek to prove a point by saying that it was important to them to have discharged the oil because the ship was in danger which was been driven by rough sea on to the coastline wall, and it was better to discharge the oil so that they can avoid the danger, in which lives might have been lost. This obviously true at that stage in the story, but question here is how comes the ship gets too close to the wall? If it was her fault, then her justification will fail, because no body can produce himself of necessity his own fault. Another very important question here will be where does the legal burden rest in this case? Must the Southport Corporation prove that the ship was at fault in getting on to the wall. or should the ship prove that she was not at fault? Here we can deduce that the burden is on the ship because she can not justify herself in law by necessity alone, but only by unavoidable necessity, and burden is on her to show it was unavoidable. In a case between Miss Stone and Bolton in (1951). Miss Stone was struck and injured by a ball that flew out of cricket field across the street which was been hit by batsman in cricket match going on at Cheetham cricket club. In this case the defendant is liable in trespass, because he could not hope to show that it was an unavoidable necessity for him to hit the ball so hard.

g) The rule in The Merchant Prince: In negligence the legal burden in most cases remains throughout on the plaintiff, however there are some exceptional cases where the legal burden is shifted is directed to the defendant. It is directed in the case that fall within the rule in The Merchant Prince. In a case where a steamship was out of control by her own fault in a crowded river, with steering gear jammed, then she will be regarded as a public nuisance. But if she was in control and ran into a ship at anchor, then she will be negligent. This being the only possible alternatives, and it appears that on her own case that her steering gear was jammed and she was out of control. But she was called upon to answer for her dangerous condition as if it had been a public nuisance. In relating the situation above, we find here that the ship ran on to the coastal wall. If the steering gear was in order, that would have been a plain negligence. The ship seeks to escape from this charge of negligence by saying that her steering gear had failed and she was out of control. But that is no answer until she proves, and the legal burden support her prove that it was no fault of hers that the steering gear had failed and she has not discharge that burden, or even attempted to discharge it, for that reason she is liable.

The significant of the case in relation to environmental protection today is that the holder of right of way is strictly liable to all the damaged parties, public or private, without regard to blame for such damages. As for defenses to liability, the TAP Act treats the vessel owner the same with the holder of the right of way limiting both there defenses only to those case where damages were caused by an act of war or by negligence of the US or other governmental agency. The TAPS Act however significantly expands the ambit of protection beyond the clean up costs available only to the Federal Government under the Federal Water Pollution Control Act Amendments of 1972.

In conclusion, the case between Esso Petroleum Co Ltd and Southport Corporation, is that the Southport Corporation know nothing of what went wrong on the ship, they are just concern with the discharge of oil which polluted there foreshore. And that they want the ship-owners to pay the cost of cleansing the foreshore, except if they can show that they were not at fault. This is a case of nuisance or negligence. But the appeal court judgment is that the plaintiff should succeed in which appeal was allow against the defendant company.