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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baird And Others v. Dewar [1877] ScotLR 14_575 (22 June 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0575.html Cite as: [1877] ScotLR 14_575, [1877] SLR 14_575 |
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Page: 575↓
[
Observed
Held that a yacht which lay at her moorings in a bay used as an anchorage on the Clyde, and crowded with shipping, was not bound to wait, before leaving them and setting sail out of the bay, until a steamer which was calling at a pier close by had left it and had passed the place where the yacht was likely to take her course.
Qbserved (per the Lord President) that there was a recent case where his Lordship had held that a vessel was justified, according to article 19 of the Board of Trade regulations for preventing collisions at sea, under section 25 of the Merchant Shipping Act 1862, in departing from the ordinary rules of the road “in order to avoid immediate danger.”
This was an action of damages for collision. A Clyde river steamer had just left Gourock Pier to proceed up the river towards Greenock, when a yacht, which had left her moorings in the bay during the time that the steamer was lying at the pier, was observed to be about to cross the steamer's bow. The master of the steamer disobeyed the rules of the road, according to which he should have passed under the yacht's stern, and a collision resulted. In an action of damages for loss thereby sustained, at the instance of the yacht owners, the steamboat owner, in defence, founded, inter alia, on article 19 of the regulations for preventing collisions at sea, under section 25 of the Merchant Shipping Act 1862, which enacts that “in obeying and construing these rules due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger.”
The Lord Ordinary, after other findings of fact, found also that in this case the departure from the ordinary rule of navigation was not justified, but that there was contributory negligence on the part of the yacht, because “according to the practice of seamen, and under the circumstances of this case, the pursuers neglected the precaution of remaining by their moorings until the ‘Marquis of Lorne ’ had left the pier and had proceeded so far on her course as to render the chance of collision improbable.” The damage: was therefore divided by his Lordship's interlocutor between the pursuers and defender.
The pursuers reclaimed.
At advising—
[His Lordship further agreed with the Lord Ordinary that on the evidence the case was not one in which the steamer was justified in neglecting the ordinary rules of the road in order “to prevent immediate danger,” but added that in a recent jury trial arising out of a collision he had told the jury that he thought these rules had been properly set at nought in the circumstances of the case.]
Decree was given against the defender for the whole sum of damages as assessed.
Counsel for the Pursuers— Trayner—Maclean. Agent— John Galletly, S.S.C.
Counsel for the Defender—Asher —M'Kechnie. Agents— Campbell & Smith, S.S.C.