Scottish Court of Session Decisions

The Ellerman Lines, Limited, owners of the s.s. “City of Benares,” brought an action against (1) the Trustees of the Clyde Navigation, and (2) John Brown & Company, Limited, shipbuilders, Clydebank, craving decree against the defenders jointly and severally, or severally, for the sum of £1500 as the damage sustained by the “City of Benares” in a collision on the Clyde with the s.s. “Almora” on 26th November 1907. The collision, they averred, was due to (1) the faulty navigation of a tug and a flotilla of barges belonging to the first defenders, and (2) the fault of the other defenders, John Brown & Company, in having moored the cruiser “Inflexible” (then in course of construction on the river) so as to project her stern into the fairway, contrary to the bye-laws and regulations for the navigation of the Clyde.

[A similar action was raised by the Glasgow and Newport News Steamship Company, Limited, the owners of the s.s. “Almora,” concluding against the said defenders jointly and severally, or severally, for £6000 damages in respect of the same collision. The two cases were heard and disposed of together.]

The facts are fully stated in the note ( infra) of the Sheriff-Substitute ( Fyfe), who on 1st December 1909 pronounced the following interlocutor:—“Finds (1) that the steamship ‘City of Benares’ belonging to the pursuers was on 26th November 1907 proceeding down the river Clyde; (2) that the steamship ‘Almora’ was coming up; (3) that at a point in the river, about opposite the private dock of John Brown & Company, Limited, these two vessels came into collision, whereby both sustained damage; (4) that the collision was not caused by fault or negligence on the part of those navigating either of these vessels, but was the result of fault on the part of ( a) the defenders John Brown & Company, Limited, in respect that they, in contravention of Article 6 of the Clyde Trust Bye-Laws of August 1889, had moored the war vessel ‘Inflexible’ in their dock for the purpose of being fitted up in such a manner that her stern projected beyond the line of the North River Wall and for a considerable distance into the navigable channel of the river, and ( b) a servant of the defenders the Clyde Trustees, for whom they are responsible, viz., the master of the steam tug ‘Clyde,’ in respect that he recklessly came out from Brown's basin with mud barges in tow, and proceeded to cross the river in the way of vessels navigating up and down the river in contravention of Article 19 of said Clyde Trust Bye-Laws, and particularly in the way of the ‘Almora’: Finds therefore in law that the damage to the pursuers' vessel ‘City of Benares ‘having been the result of fault on the part of both defenders, or of those for whom they are responsible, the defenders are jointly and severally liable in reparation to pursuers,” &c.

Note.—“…The craft in the river at the time of the collision were (1) the steamship ‘City of Benares’ belonging to the Fllerman Lines, Limited, a vessel of 4320 tons net register with triple expansion engines of 760 horse power nominal, 460 feet long, and 55 feet broad. She was outward bound for Calcutta via Liverpool, and was on the way to Liverpool to complete her cargo, which had been partly loaded at Glasgow. Her draught of water was about 21 feet forward and 21 feet and 2 inches aft. She was proceeding under her own steam, and as is customary with vessels of her size she was attended by two tugs—one ahead and one astern. (2) The steamship ‘Almora’ belonging to Glasgow and Newport News Steamship Company, Limited, a vessel of 2835 tons net register, with triple expansion engines of 368 horse power nominal, 390 feet long, and 50 feet broad. Her draught was 19 feet forward and 20 1 2 feet aft. She was inward bound with a general cargo from Newport News. She was attended by one tug astern. (3) The steam tug ‘Clyde’ belonging to the defenders the Clyde Trustees, a vessel specially built for the purpose of towing mud barges. She has engines of 82 horse power. She has two engines which can be worked separately, and she had in tow eleven loaded barges lashed together and attached by a chain, as close as they could get up to the stern of the tug. The mud barges had been filled inside the private basin of the defenders John Brown & Co., and the tug ‘Clyde’ was taking them across to the south side of the river. (4) The ‘Inflexible,’ a large war vessel, which had been constructed by the defenders John Brown & Co., and was in course of being fitted up at their private basin. To enable a crane on their wharf to reach a particular part of the ship forward of the bridge the vessel was moored with her bow inside Brown & Co.'s private basin and her stern projecting into the river. She had moorings to the wall of the private basin, and also to a small island at the mouth of the basin (which is referred to by the witnesses as ‘the Dolphin’). She also had a tug in attendance astern, with a hawser attached to the ‘Inflexible's’ stern, to help to steady this large vessel and prevent her stern swinging with the flood tide. The vessels concerned, therefore, which were in motion in the river at the time are the outward bound ‘City of Benares’ and her two tugs, the inward bound ‘Almora’ and her one tug, and the tug ‘Clyde’ with her barges in tow.

What I have to consider in the first place is whether there was fault on the part of any of those moving vessels which contributed to the collision between the ‘City of Benares’ and the ‘Almora’; and, in the second place, whether it was a contributing cause of the casualty that the warship was moored in the position described.

[ After dealing with the evidence and finding that neither the ‘ Almora’ nor the ‘ City of Benares’ was to blame, the Sheriff Substitute proceeded]—

In my opinion the proof conclusively shows that of the three moving vessels the tug ‘Clyde’ was alone to blame. It was close upon high water, a time when the up and down traffic in the river was

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likely to be thickest. There was the huge hull of the ‘Inflexible’ obstructing the view both up and down the river. A downcoming vessel had deep water close to the north bank, and so might arrive at the mouth of the basin before craft coming out of the basin could see her. In these circumstances it appears to me that it was most reckless for the ‘Clyde’ to come out of the basin at all without having first got warning that the way across the river was clear. There were people on the ‘Inflexible’ and there were people on the wharf. It was quite practicable to have given the ‘Clyde’ a signal, but no effort was made to direct her when to come out. There was a digger at work up in Brown's Basin filling the barges, and the extraordinary arrangement, or rather want of arrangement, which appears to have prevailed was that when a sufficient number of barges had been filled they were lashed together and taken in tow by the tug, which then proceeded out of the basin without knowing the actual state of the traffic at the moment, but in the general knowledge that there were likely to be vessels coming up and down the river, and in the hope that there would be time to cut across. If it is the case, which the evidence does not make very clear, that the tug ‘Clyde’ if she found anything in her way in the river, could have backed her barges into the basin, her master should have done so when he saw the ‘City of Benares,’ for I think it is proved that, apart altogether from the ‘Almora’ coming up, there was considerable risk in the tug coming out in front of the ‘City of Benares’ going down. Had the latter not been coming very slowly, and able promptly to check her speed, I think it quite likely that the ‘City of Benares’ might have run into the ‘Clyde’ or the barges. The fact is, that the ‘Clyde’ came out trusting apparently to a protective providence in the shape of the vigilant pilots of the up and down traffic.

When the master of the ‘Clyde’ found himself out, he could not go back because the ‘City of Benares’ would have been on him; nor could his much-vaunted separate port and starboard engines enable him to keep out of the way by going between the ‘City of Benares’ and the north shore, for the hull of the ‘Inflexible’ was in his way. Once he had come out he was shut up to going on, and in going on he had of necessity to take the risk of crossing the bow of the ‘Almora,’ trusting that her pilot would, if necessary, as in fact he did, reverse the ‘Almora's’ engines and avoid a collision.

The immediate cause of the collision, of course, was the ‘Almora’ sheering across the river, but I think it is amply proved that the only explanation of the sheer was that the tug ‘Clyde’ suddenly emerged out of the basin in front of the ‘Almora.’ I have not, therefore, any difficulty at all in holding the Clyde Trustees responsible for the fault of their servant the master of the tug ‘Clyde,’ and for the resulting damage which was occasioned both to the ‘City of Benares’ and the ‘Almora.’

It is a more difficult and much nicer legal question whether the defenders John Brown & Co. are also liable. As I understand the decision of the Supreme Court in the appeal upon the relevancy, I am not now concerned with the question of degree of fault as between the two defenders. I have only to consider (1) whether the defenders John Brown & Co. were in any degree wrongdoers in placing the ‘Inflexible’ at that time where they did place her, and (2) whether the fact that she was so placed, in any degree, great or small, contributed to the result.

Now there is an express bye-law that in this particular part of the river no vessel shall ‘be moored or berthed inside the lines of the river walls for the purpose of taking on or landing goods or passengers, or of being fitted up or repaired, or for any other purpose, but without prejudice to any vessel calling at a quay or wharf in the ordinary course of trade, provided the navigation be not thereby interrupted.’ The part of the bye-law with which we are here more immediately concerned is the prohibition against mooring a vessel inside the lines of the river walls for the purpose of being fitted up. What was being done on the ‘Inflexible’ was putting armour on board. The armour was being lifted by a 150-ton crane erected upon the wharf, and it was to be placed on board at the after end of the forward barbette. The jib of the crane has a reach of 132 feet, and in order to bring the forward barbette, where the armour was to be placed, as near to the outreach of the jib as possible, it was necessary to have the vessel placed as she was placed. But this was for the convenience of the defenders John Brown & Co., who were fitting up the vessel in their own private dock.

The only exception in the bye-law is that of a vessel calling at the quay in the ordinary course of trade, and that only if calling at the quay does not interrupt navigation. There is no exception of a vessel being fitted up in a shipbuilders' private dock, and quite possibly when these bye-laws were framed twenty years ago the exigency of manipulating a huge war vessel in a private dock or basin was not at all before the minds of the Clyde Trustees. If it had been, one would almost have expected that, for the encouragement of the shipbuilding industry on the Clyde, an exception would have been made to meet the case of a large war vessel such as this, the work upon which could not, at that particular place at any rate, be done at all without a part of the vessel projecting beyond the line of the river wall. Had the projection been only technically beyond the river wall, I should not have been inclined to consider this bye-law as strictly applicable to the defenders John Brown & Co., because I think that the underlying reason for the enactment of this bye-law obviously was to prevent the navigable channel of the waterway

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being obstructed. If, therefore, the stern of the ‘Inflexible’ had merely projected into a portion of the waterway too shallow to be occupied by a downcoming vessel, I should not have been inclined to hold that the bye-law had been contravened, despite the fact that the stern of the ‘Inflexible’ might have been beyond the river wall. But having regard to the soundings as shown on the plan, and to the evidence led, I am constrained to find that the stern of the ‘Inflexible’ did project some distance into the navigable channel of the river used by downgoing vessels of large size. As to how much it projected there is a conflict of evidence. Some witnesses say 100 feet, others a great deal less. I think probably the import of the evidence may fairly be taken to be that the ‘Inflexible’ was about 50 feet out into the navigable channel.

It was said that, even assuming this to be so, that does not affect the present question, because in the circumstances as they occurred the collision would have happened all the same although the ‘Inflexible’ had not occupied that part of the waterway at all. I think this is quite likely, for no witness is prepared to say positively that if this 50 feet of waterway had been available to the ‘City of Benares’ and the ‘Almora’ they would have avoided the collision. This 50 feet of projection of the ‘Inflexible’ out into the channel was at any rate an additional 50 feet of screen, delaying the master of the ‘Clyde’ getting a view down the river and obstructing the view of the upcoming ‘Almora.’ It is possible that if that 50 feet of waterway had been available the collision might have been altogether avoided, or at any rate the damage occasioned might have been less.

The main importance, however, of the fact that the ‘Inflexible’ being placed as she was was a contravention of Bye-law 6, is that it shifts the burden of proof (Marsden on Collisions, 5th ed., p. 29, and cases cited). Once the pursuers get the length of establishing the contravention, they are not required further to prove positively that the presence of the ‘Inflexible’ where she was placed was a contributory cause of the collision. The defenders John Brown & Co. are then required to prove that the presence of the ‘Inflexible’ where she was had no effect in bringing about the collision. I think that upon the proof the pursuers have sufficiently established the fact that the ‘Inflexible’ was a contributory cause of the collision, because it may be said with much force that if the ‘Inflexible’ had not been there the tug ‘Clyde’ and her barges would not suddenly have shot out across the bow of the ‘Almora’; that if the tug had not so shot out of the basin the ‘Almora’ would not have had suddenly to reverse her engines; that if she had not been compelled so suddenly to reverse she would not have sheered across the river; that if she had not sheered across the river there would have been no collision. Probably, also, it may be said, with a good deal of force, that in the circumstances the downgoing ‘City of Benares’ would have kept as far to the north as she could in meeting the upgoing ‘Almora,’ and that she might have been at least 50 feet further inshore. But I am not required to consider all this. What I have to consider only is, in the first place, whether the defenders John Brown & Co., in placing the ‘Inflexible’ where they did, contravened Bye-law 6, and, in the second place, if they did so, whether these defenders have discharged the onus of proof thereby shifted to them of proving that the presence of the ‘Inflexible’ had nothing to do with the collision. I am of opinion that it is proved that the defenders John Brown & Co. were in contravention of Bye-law No. 6, and that they have failed to discharge the onus of proof referred to. I am therefore shut up to the conclusion that they are jointly and severally liable with the other defenders, notwithstanding that I am also of opinion that the actings of the defenders John Brown & Co. may have arisen from a quite natural misapprehension of their right to make temporary use of a portion of the waterway; and although I think also that their fault was technical and trivial compared with the gross recklessness displayed by the navigator of the tug ‘Clyde,’ for whom the other defenders the Clyde Trustees are responsible.”

The defenders, the Trustees of the Clyde Navigation, and the defenders John Brown & Co., appealed.

Argued for the Clyde Trustees—It was not proved that the tug was the cause of the collision. The real cause was the “Almora's” sheer, in consequence of which she was unable to clear the “Benares.” The sheer was due to a faulty manœuvre on the “Almora's” part, and not to the presence of the tug, for when the sheer took place the tug was already across the river and alongside her moorings at the south side. The sheer took place three minutes before the collision, and when there was a clear space between the tug and the stern of the “Inflexible,” so that had the “Almora” kept her course she would have passed the “Benares” in safety.

Argued for John Brown & Co.—There had been no contravention of the byelaws, for the bye-law in question (viz., Article 6) was a river regulation, and inapplicable to a private dock. The bye-law was also inapplicable in respect that the “Inflexible” was not “moored” in the “river”; she was moored in a private dock—a place outside the limits of the river — Clyde Navigation Consolidation Act 1858 (21 and 22 Vict., cap. cxlix), secs. 2 and 75. Assuming, however, that the bye-law had been contravened, the appellants were not to blame, for where in a river an obstruction not per se dangerous had been put down wrongfully it was the duty of navigators to avoid it where as here it was noticed. The proximate cause of the accident was not the breach of the bye-law, but the negligence of those in charge of the “Almora.” The appellants therefore were not liable — Cayzer, Irvine & Co. v. Carron Co.,

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L. R., 9 A. C.873, per Lord Watson at p. 887; “ The Monte Rosa” [1893] p. 23. The onus of showing that the position of the “Inflexible” contributed to the collision lay on the respondents, and they had failed to discharge it. It was not enough to say that the “Inflexible” narrowed the manoeuvring ground; it must be proved that she actively contributed towards the collision, and that she was a causa causans. Esto that her position in the river contained the potentialities of danger she did nothing to quicken them into activity, and unless she did so she could not be an actively inducing cause of the collision — she was really in the position of a third party quoad the colliding vessels. That being so she was not liable—Glegg on Reparation (2nd ed.), pp. 44–45; Renney v. Magistrates of Kirkcudbright, Dec. 19, 1890, 18 R. 294, 28 S.L.R. 242, rev. March 31, 1892, 19 R. (H.L.) 11, 30 S.L.R. 8; “ The Bernina” (1886), L.R., 12 PD 58; Marsden's Collisions at Sea (6th ed.), p. 13. The contravention of the bye-law was not sufficient to shift the onus where as here the bye-law was a mere domestic rule and not a statutory bye-law like the Regulations for Preventing Collisions at Sea— Cayzer, Irvine & Co. ( cit.), per Lord Watson at p. 885. Esto, however, that the onus lay on the appellants to show that the position of the “Inflexible” did not contribute to the collision, then they had discharged it.

Argued for the owners of the “Almora” (respondents)—the Court having intimated that they held the tug was to blame— Esto that the tug was an inducing cause of the accident, so also was the “Inflexible,” for ( a) she narrowed the manœuvring ground, and ( b) acted as a screen, and so prevented the “Almora” seeing the tug in time. The breach of the bye-law imposed on the appellants John Brown & Co. the onus of showing that the position of the “Inflexible” could not by any possibility have been an inducing cause of the accident — Bevan on Negligence (3rd ed.) 1087; “ The Arklow,” L.R., 9 A.C. 136; “ The Fenham,” L.R., 3 P.C. App. 212, at p. 216. This onus she had failed to discharge.

Argued for the owners of the “City of Benares” (respondents) — Assuming that the tug was to blame, it was enough for these respondents to show that but for the position of the “Inflexible” the collision would have caused them less loss than it did—Marsden's Collisions at Sea (6th ed.) at pp. 15 and 124. That her position had done so was clear from the argument stated for the “Almora,” which these respondents adopted.

At advising—