Scottish Court of Session Decisions

Now, the “ Indus” lays down, and I think rightly, that if persons who are prima facie in fault want to get off upon statutory exemption, they must bring themselves very clearly within that statutory exemption; in other words, they must show that the fault was that of the pilot and nobody else. That does not mean that you must go through the impossible course of disproving every other cause. It may be quite enough if you begin by showing that it was the fault of the pilot, and then leave the matter there, and leave the other side to extricate themselves by showing that there were other contributory causes of fault. But none the less you must begin by showing that it was the fault of the pilot, and show it in such a way as not to complicate it with any other proximate cause.

The facts of the “ Indus” were a very good illustration of that. There was no doubt that it was the fault of the pilot in one sense, because the one ship ran into the other. The moving ship was being navigated by the pilot, and accordingly it was his fault, but nevertheless there were certain other contributory causes found in the non-obeyance of a certain order. Well, when I come here to apply that test, I come to the same conclusion as the Sheriff-Substitute, though in rather a different way—that the appellant here has failed to discharge the onus upon him of showing that the fault was the fault of the pilot. I do not think it is enough merely to say that the accident happened, and that the ship was in the pilot's hands at the time, unless you can show also that nothing else was happening of an extraordinary character. Now, undoubtedly the ship here did behave in an extraordinary manner, that is to say, it steered very wildly; and I have come to the conclusion that the onus being upon the party seeking to free himself, he has not discharged that onus, because he has not really shown here that the accident, such as it was, rested upon the pilot's fault alone.

I do not myself think it necessary to decide the question whether the bad steering was due to the list or not. It may or may not have been, I cannot tell; but there are one or two things that are undoubted. It is undoubted, I think, as a matter of fact, that the ship did not answer her helm. That is made clear among other things by the log of the chief officer on the “Sunbeam,” and I prefer to take these documents to what the witnesses say, because they were made up at a time when people did not know they were to be in Court. He says, describing the accident—“3.30 p.m., while trying to get squared up in mid-river, tide being two hours ebb, helm hard to starboard, and tug towing to port; wind on port bow, and tide under starboard quarter, owing to which we did not answer our helm and in the same way it is very noticeable that the captain himself does not attribute the accident to the fault of the pilot, but puts it down to something that I suppose would come to inevitable accident, because in his deposition he says that, “In deponent's opinion the cause of the casualty was the sweep of the ebb tide on the starboard quarter and the wind on the port bow;” and in the same way, in his evidence in the case, he says—“I do not think the pilot could have done anything that might have prevented the collision in any way.” Now that is testimony given by the persons in the boat in fault. It is quite true that their evidence, such as it is, would go to something like inevitable accident, but inevitable accident won't do in this case, because to say that the existence of a very slight breeze—for there was nothing more here—and the existence of a tide in the opposite direction, should therefore make it impossible to navigate the Clyde is a conclusion which, of course, is absurd on the statement of it. In other words, their testimony as regards inevitable accident is, I am afraid, not worth much. But it is worth something in this way, that at the time they never thought of saying that the pilot was wrong. Now the learned counsel, of course, tried hard to assimilate this case not to the “ Indus,” but to the case of the “ Assyria” ( 5 F. 1089), and undoubtedly at first sight there is a great deal of similarity between the two cases. But a distinction between the two cases is this, that in the “ Assyria” the learned Judges came to a decision on the question of fact, and—of course, whether they were right or whether they were wrong does not matter, it still remains the ground of decision—that the pilot had given a wrong order, because I find that, first of all, in the findings of the Sheriff-Substitute which were there under appeal there is this finding—“Finds … that the pilot ordered the engines to be put slow ahead and afterwards full speed ahead, and when he saw a collision to be inevitable, hard astern: Finds that a collision would have been avoided if the order to go astern had been given at first, and that it was unduly hazardous to give the order full ahead in the hope of passing the ‘Monmouth.’” Now that was a mistake on the part of the pilot; and in the same way the Lord Justice-Clerk, after describing the accident, says this—“Instead of that, the evidence satisfies me that the pilot caused the collision by giving an order to go ahead when there was risk of a collision, and that he by this error of judgment caused the collision.” Well then, that of course is a finding directly contrary to what would be warranted here by the evidence of the captain of the “Sunbeam” when he says—“I do not think the pilot could have done anything that could have avoided the collision.” In other words, you have there just that initial fault proved on the part of the pilot which I think the evidence fails to prove here, and that I think is what creates the distinction between

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