Posted: 26/06/2025
As part of the bicentennial celebration of heritage firm Thomas Cooper’s founding in 1825, for each month of 2025, Penningtons Manches Cooper is spotlighting a different standout case conducted by the firm across its two centuries of English legal practice.
This sixth instalment focusses on the decision in Esso Petroleum v Southport Corporation, The Inverpool [1956] AC 218, which was the first ever oil pollution case to reach the House of Lords.
Post-war reconstruction fuelled a high demand for oil, keeping many of America's 16,500 dwt block-constructed T2 tankers of WW2 in service into the 1950s. As the decade progressed, those innovative construction processes, involving prefabricated sections, assembly lines, and welding, originally devised to replace the sheer quantity of vessels sunk by U-boats, were repurposed towards the construction of a new breed of tankers, larger than ever before.
By the mid-1950s, there were Japanese-built tankers of 45,000 dwt. After the Suez crisis of 1956 made clear that the canal was not a reliable means of conveying the world's oil, even larger ships were built that could make the longer journey around the Cape of Good Hope financially viable. In 1959, the biggest tanker in the world was Universe Apollo at 114,356 dwt. By 1966, the record was held by the first Very Large Crude Carrier Idemitsu Maru, at 206,000 dwt. Tanker size had increased tenfold in 20 years.
As capacity grew, the shipment of refined petroleum products on scale became less economical. Instead, vast raw crude cargoes were transported for refinement close to consumer nations. Whereas early petroleum tankers had largely represented a fire and explosion risk, with any spillage mostly evaporating and dispersing into sheen, the new supertankers had the potential to release heavy persistent oil into the environment on a catastrophic scale.
In stark contrast to the new breed of tankers, the Inverpool was a tiny steam tanker of 680 tons gross, owned by Esso Petroleum. The vessel departed Liverpool at 07.30 on 3 December 1950 with a cargo of fuel oil, bound for Preston. At 11.40, she arrived at the entrance to the Ribble estuary, and there waited for the tide until 14.30. Soon after entering the estuary, the Inverpool shipped heavy seas over her port quarter and engine room, following which her engineer found the steering had become 'very erratic'. With the vessel reportedly 'lurching badly, sliding from side to side', the master pressed on towards Preston.
At 15.05, the engineer reported two violent blows to the propeller, which sounded like metal hitting metal. Then, at 15.15, the Inverpool took a heavy sheer to starboard and ran aground on a revetment wall on the south side of the channel. There she lay in a precarious position, at right angles across the wall, in danger of breaking her back. With the safety of ship and crew at risk, the master jettisoned about 400 tons of oil in order to lighten the ship. The wind and tide spread the oil over about seven and a half miles on to the foreshore belonging to Southport Corporation, and into their marina lake, which had to be closed for a time.
Southport were put to considerable expense in cleaning up the discharge, and so brought claims in the torts of trespass, negligence and nuisance.
Esso was represented by Thomas Cooper. At first instance, Mr Justice Devlin began by observing that:
'…it may appear to be unreasonable that shipowners whose servants cause such damage in order to save their own property should not automatically have to pay for it. … . If Parliament considers that further legislation is necessary for the protection of the public, no doubt such legislation will be enacted. My duty is to apply the common law, … '.
Although not precisely covered by precedent, the judge considered there was a prima facie claim in nuisance, subject to a requirement that Southport prove the loss was caused by Esso's negligence. It was clear from the landmark decision of Rylands v Fletcher (1866) LR 1 Ex 265 that the owners of property adjoining a watercourse, just like the owners of land adjoining a highway, are deemed to have taken on the risks arising out of the normal use of that throughway and may only claim for property damage occasioned by a lack of ordinary diligence.
Mr Justice Devlin found that the master was not negligent. The master's evidence was that to anchor in such heavy weather was impossible, and to turn back in the channel was more dangerous than to proceed, whereas his priority was to get into sheltered water. The judge relied on guidance from the Elder Brethren of Trinity House to the effect that the master had made the right choice, and his 'decision to lighten his vessel cannot fairly be criticized.'
The manoeuvring problems were attributable to a fractured stern frame, of which the master had no knowledge until the steering became erratic at 14.45. In this regard, Mr Justice Devlin observed: '[a]ssuming the stern frame to be sound, I cannot see how heavy seas could by themselves fracture it, and I am advised by the Elder Brother that they could not.' But Southport had only alleged negligence against the master and had said nothing of whether the ship was diligently maintained, so there was no case to answer on that issue. Esso had succeeded in defending the claim.
However, Southport prevailed before a majority of the Court of Appeal, who held that the doctrine of res ipsa loquitur applied, meaning the events spoke for themselves.
Lord Justice Singleton was unwilling to allow the case to turn on the pleadings in circumstances where 'I would not think that there had been full discovery of documents, and the plaintiffs could know little of the facts which were within the knowledge of the defendants. It was really only on cross-examination of the master that the plaintiffs discovered the facts as they now appear.'
Lord Justice Denning was similarly dissatisfied by the fact that the owners' pleadings attributed the incident 'to the steering gear being out of control because the propeller had twice struck "some object." That would lead anyone to think that it struck a submerged object such as a rock or a piece of wreckage. No one would think that they were referring to a fractured stern frame.'
Accordingly, the onus was on Esso to explain why the stern frame had fractured, but they had proffered no explanation. Rather, '[w]e know nothing as to the history of the Inverpool. No earlier survey reports have been produced.'
The House of Lords unanimously reversed the appeal and restored the judgment of Mr Justice Devlin.
Initially, Southport had contended that the vessel was negligently navigated in the channel, and that the discharge of oil was wrongful. Thereafter, once the owners disclosed a report from the master revealing that the stern frame had been fractured, the rudder damaged, and the propeller blades broken, Southport amended their pleadings to also accuse the master of negligently choosing to enter the channel in the first place. Southport did not however assert that the vessel was unseaworthy or the stern frame was poorly maintained.
Their lordships found that the Court of Appeal had erred in expanding the allegations of negligence to encompass a requirement that the owners answer for the defective steering:
'If the plaintiffs' case had been put in the alternative, either that there was some navigational error or that the ship was unseaworthy, the case would no doubt have been developed on wholly different lines. … I do not think that the present appellants, the owners of the Inverpool, can be held responsible because they did not negative some possible case which had never been alleged against them in the pleadings or made against them in the course of trial.'
Within legal circles, the Inverpool raised concerns over the adequacy of the common law. It was only a matter of time before a major catastrophe cast the law into the public eye.
On 18 March 1967, the 120,000 dwt laden supertanker Torrey Canyon took a short cut between Land's End and the Scilly Isles in order to save half an hour en route to Milford Haven. The vessel struck Pollard Rock on the Seven Stones Reef at over 15 knots, rupturing her tanks, and breaking into pieces some days later.
Over 100,000 tons of crude spread to the coasts of south-west England, the Channel Islands and Brittany. The 270-square-mile slick killed thousands of seabirds, left beaches knee-deep in sludge, and threatened local livelihoods. Torrey Canyon was the largest shipwreck in history and the biggest environmental catastrophe Britain had ever faced.
Her owners were clearly negligent, but the Inverpool remained a cautionary reminder that negligence cannot always be proven. In any case, the only assets to enforce against were a $50 lifeboat and Torrey Canyon's sister ship.
A month later, the British government lobbied the Inter-governmental Maritime Consultative Organization calling for change to international law. In 1969, a new International Convention on Civil Liability for Oil Pollution Damage was adopted, imposing strict liability on tanker owners for oil pollution, regardless of fault, and requiring them to maintain adequate insurance, while granting direct rights of action against insurers. The convention, amended by protocol in 1992, has since been ratified by 136 states, comprising 97.5% of the world's tonnage.
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