Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
In re Polemis, 3. K.B. 560 (1921)
[Plaintiffs, the owners of a ship, chartered a ship to defendants, the charterers, by contract.
The contract stated that the charterers would not be liable for damages caused by “[an] act of God,
the King’s enemies, [or] loss or damage from fire on board in hulk of craft, or on shore . . . .”
Under the control of the charterers, the ship docked in Casablanca and was unloaded by local
stevedores. The ship was carrying large quantities of petrol and benzene in the lower hold. As
stevedores were unloading the ship, one stevedore accidentally dropped a plank into the hold.
The plank struck the hold and created a spark, which in turn ignited the petrol and benzene, and
set the ship ablaze. Plaintiffs sued the defendants for the value of the vessel. After arbitration,
where the plaintiffs prevailed, a lower court upheld the arbitration award. Defendants appealed.]
BANKES, L.J.
In the present case the arbitrators have found as a fact that the falling of the plank was due
to the negligence of the defendants’ servants. The fire appears to me to have been directly caused
by the falling of the plank. Under these circumstances I consider that it is immaterial that the
causing of the spark by the falling of the plank could not have been reasonably anticipated. The
appellants’ junior counsel sought to draw a distinction between the anticipation of the extent of
damage resulting from a negligent act, and the anticipation of the type of damage resulting from
such an act. He admitted that it could not lie in the mouth of a person whose negligent act had
caused damage to say that he could not reasonably have foreseen the extent of the damage, but he
contended that the negligent person was entitled to rely upon the fact that he could not reasonably
have anticipated the type of damage which resulted from his negligent act. I do not think that the
distinction can be admitted. Given the breach of duty which constitutes the negligence, and given
the damage as a direct result of that negligence, the anticipations of the person whose negligent
act has produced the damage appear to me to be irrelevant. I consider that the damages claimed
are not too remote.
The other point relied upon by the appellants was that the damage having been caused by
fire they were protected by clause 21 of the charterparty [governing loss by fire]. To this it was
replied that the clause had no application in the case of a fire caused by the negligence of the
charterers’ servants. I see no reason why a different rule of construction of this exception
contained in the charterparty should be adopted in the case of the charterer than would
undoubtedly be adopted in the case of the shipowner. In the case of the latter clear words would
be required excluding negligence. No such words are found in this clause. Neither shipowner nor
charterer can, in my opinion, under this clause claim to be protected against the consequences of
his own negligence.
For these reasons I think that the appeal fails, and must be dismissed with costs.
WARRINGTON, L.J.
[I]t is contended that “a person guilty of negligence is not responsible in respect of
mischief which could by no possibility have been foreseen and which no reasonable person would
have anticipated.” . . .
The result may be summarised as follows: The presence or absence of reasonable
anticipation of damage determines the legal quality of the act as negligent or innocent. If it be
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