Scottish Court of Session Decisions

The Merchant Shipping Act 1894 (57 and 58 Vict. c. 60), sec. 633, enacts—“An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law.”

On 26th October 1909 Alexander Stephen & Sons, Limited, shipbuilders and engineers, Govan, pursuers, brought an action against the Allan Line Steamship Company, Limited, Glasgow, defenders, for £15,000 damages in respect of injuries sustained by their vessel the “Bruxellesville” through being (as they alleged) run into by the defenders' vessel the “Buenos Ayrean” while she (the “Bruxellesville”) was moored to Shieldhall Wharf in the Clyde.

The defenders pleaded, inter alia—“(5) In any event, any fault or negligence in the management or navigation of the ‘Buenos Ayrean’ being that of the licensed pilot compulsorily employed, the defenders are entitled to absolvitor.”

The facts sufficiently appear from the opinion ( infra) of the Lord Ordinary ( Dewar), who on 15th July 1910 sustained the fifth plea-in-law for the defenders and assoilzied them.

Opinion.—“The s.s. ‘Buenos Ayrean’ when coming up the River Clyde in charge of a pilot collided with and damaged the s.s. ‘Bruxellesville,’ which was being fitted out and completed at Shieldhall Wharf, where she was moored under the direction and to the approval of the harbour authorities.

The owners of the ‘Bruxellesville’ bring this action against the owners of the ‘Buenos Ayrean,’ alleging that the collision was due to the fault of the defenders, in respect that the ‘Buenos Ayrean’ was deficient in build and did not steer properly; that the crew did not keep a proper lookout, and that the tug engaged by the master was not of sufficient power.

The defenders deny these averments. They state that they were in no way to blame; that the collision was caused by the negligence of the pursuers in failing to indicate the position of their vessel by proper lighting and ringing of a fog-bell, and they bring a counter claim for £2000 against the pursuers for damages caused to the ‘Buenos Ayrean’; and parties have put in a minute agreeing that to save the expense of raising a counter action for said sum it shall be competent for the Court to deal with this case as if such counter action had been raised. The defenders further plead that, in any event, any fault or negligence in the navigation of the ‘Buenos Ayrean’ being that of the pilot compulsorily employed by them, they are not liable for any damage which the pursuers may have sustained.

I am of opinion that the collision was caused by an error in judgment of the pilot, and that there was no fault on the part of either the pursuers or defenders.

The material facts are as follows:—The ‘Buenos Ayrean’ is built of steel, and is about thirty-one years old. She is 385 feet long and 42 feet in beam. She has a right-handed propellor. Her crew is thirty-seven. She started from Greenock at 2·45 a.m. on 16th December 1908, for Princes Pier. It is compulsory pilotage from Greenock to Glasgow, and James Christian, licensed pilot, was in charge. There was a tug astern for steering purposes, and the ‘Buenos Ayrean’ came up on her own steam.

When they started the weather was clear and fine, but when they reached Bowling at 5'50 it became foggy. About Rothesay Dock the weather again cleared; but as they approached the bend in the river, opposite Shieldhall Wharf, the fog came down in a dense bank, the sides of the river could not be seen, and navigation was very difficult. The engines were put at slow, and they went at about three knots an hour, with half a knot of flood tide. Their course was a little south of the Channel, and the wheel was slightly starboard—to take them round the bend which lay on the port or north side. The crew were all stationed. The master and the third officer were on the bridge with the pilot. The chief officer, boatswain, and an A.B. were on the lookout on the forecastle head. The second officer was aft with his watch, and the carpenter ready to let go at the anchor.

Shieldhall Wharf lies on the south side of the river. There were two large vessels lying in the wharf—the ‘Koombana’ lying nearest Greenock, and the ‘Bruxellesville’ about 600 feet further up. Between them lay three hopper barges. All these vessels had lights, but owing to the fog they were not visible except at comparatively close quarters.

When the ‘Buenos Ayrean’ came abreast of the ‘Koombana’—and about 100 feet off—the master saw the loom of this vessel against the light from Shieldhall Wharf and directed the pilot's attention to her. A few seconds afterwards the chief officer shouted:—‘A light ahead.’ The pilot asked whether it was fixed or blinking. He was told it was a fixed light. Almost immediately the chief officer shouted—A vessel right ahead.’ The light was on the ‘Bruxellesville,” and she was the vessel right ahead.

The pilot ordered the helm to be put ‘hard a-starboard,’ and this was at once obeyed. He also ordered ‘full speed ahead,’ but before there was time to carry out this order he shouted, ‘Full speed astern,’ and ‘Let go the anchor.’ These orders were promptly obeyed, but they did not succeed in preventing the collision. The bluff of the bow of the ‘Buenos Ayrean’ struck the ‘Bruxellesville’ between the fore rigging and the bridge, about 20 feet from the stem, and damaged her.

In these circumstances each party blames the other.… [ After examining the evidence and coming to the conclusion that the pursuers were not in any way responsible for the collision, his Lordship proceeded—]

As the ‘Buenos Ayrean’ was the moving

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vessel, the onus fell upon the defenders to show that the collision was not caused, either wholly or partially, by any fault or negligence on their part, and they accordingly led in the proof. They have in my opinion discharged the onus, and have proved that they were in no way to blame.

They proved that the tug they employed was adequate, and that one was sufficient. It is not customary for vessels of the ‘Buenos Ayrean’ class to have more than one tug. She has been many times up and down the Clyde, and she never employed more than one. The pilot did not ask for more or he would have got another. No one even suggested how a different or an additional tug could have prevented the collision.

The defenders proved with equal clearness that there was nothing deficient either in the build or steering capacity of the ‘Buenos Ayrean.’ She had never made a mistake. She had steam-steering gear, and it was carefully and regularly examined. It was examined immediately after the accident, and found to be in good order. No one had ever experienced any difficulty in steering her. She had never been known to sheer against her helm, and I think it is proved that she did not in point of fact sheer on the occasion in question.

It was also proved that the crew were competent and attentive. The men were properly stationed, kept a good lockout, and obeyed the pilot's orders promptly. There was neither delay nor fumbling in the execution of any order. If there had been any lack of watchfulness on any part of the ship one might have expected perhaps to find it in letting go the anchor. But this order, like the others, was instantly obeyed.

The pursuers argued that the lookout could not have been efficient, in respect that some of the shore lights and the lights on the ‘Koombana’ and the barges were not reported. But the fog is a sufficient explanation. The lights were not visible at the distance.

Then the pursuers argued, alternatively, that if the fog was of sufficient density to obscure the lights, the master should have interfered to prevent the pilot proceeding, and they referred to the ‘ Strathspey,’ 18 R. 1042. If the vessel had been still in dock, and the danger of starting was so obvious on account of the fog that any seaman of competent skill ought to have known it, no doubt responsibility might have been thrown on the master. But the fog in this case was intermittent. It was clear and fine when they started. It came down at Shieldhall Wharf in a dense bank, and they were caught in it. It appears to me that in such circumstances the master could not prudently interfere. If he could not go on he could not go back, and there was obvious danger in remaining in the fairway. His only course was to trust to the superior local knowledge of the pilot, and that is what he did. To have interfered in such circumstances would I think have been an inexcusable mistake.

I have therefore reached the conclusion, on this part of the case, that the defenders have proved that the collision was not due either wholly or partly to any fault or negligence on their part, or on the part of those for whom they were responsible.

But the pursuers contend that this is not enough to free the defenders from liability. They argued that to obtain the benefit of the 633rd section of the Merchant Shipping Act it is necessary for the defenders to prove the actual fault which the pilot committed, and I was referred to the following cases, viz. — ‘ Colina,’ 3 R. (H.L.) 44; ‘ Indus,’ 12 PD 46; ‘ City of Edinburgh,’ 7 F. 213; ‘ Sunbeam,’ S.C., (1907) 1145.

These authorities show that the defenders must prove that the fault was that of the pilot and the pilot alone. But I do not think that they establish the proposition that it is necessary in every case to prove the precise fault which the pilot committed. It may be sufficient to throw the fault upon the pilot to prove—as the defenders have proved—that the collision was not due to any defect in the ship or her apparel, and that the crew obeyed and properly carried out the pilot's orders—see opinion of Lord Low in ‘ Strathspey’ case and Lords Trayner and Moncreiff in ‘ Assyria,’ 5 F. 1089. But even if this view be wrong it does not affect my decision, for I am of opinion that the defenders have succeeded in showing the actual mistakes the pilot made. They were, I think, as follows — 1. When the master drew his attention to the ‘loom’ of the ‘Koombana’ against the light from Shieldhall Wharf, he ought to have known that he was too far to the southward, and as this point was about 600 feet from the ‘Bruxellesville’ there was then time for him to take action and get his ship more into mid-channel and so clear the latter ship. 2. When the light on the ‘Bruxellesville’ was reported by the chief officer right ahead, the pilot should have acted promptly. But instead of doing so he showed considerable indecision. He first gave the order ‘full speed ahead,’ and before it could be carried out he changed his mind and ordered ‘full speed astern.’

Had the pilot adhered to his first order — ‘full speed ahead’ and ‘hard a-starboard’ — the ‘Buenos Ayrean’ might have gone clear, seeing the angle of the blow was very slight. The propeller of the ‘Buenos Ayrean’ being right-handed, the effect of going ‘full speed astern’ is to cant the ship's head to starboard and so counteract the starboard helm.

I have consulted the nautical assessor on this part of the case, and he agrees with me in thinking that the collision was entirely due to the fault of the pilot.

The pursuers further argued that it was impossible for the defenders to discharge the onus of showing that they were not in fault without calling the pilot as a witness, and they referred to the opinion of the Lord President in the unreported case of the ‘ Atbara,’ where it is stated that in the circumstances disclosed by the evidence in that case it was clearly

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the duty of the defenders to put the pilot in the witness-box, but I do not understand the Lord President to mean that in every case it is essential for defenders to call the pilot as a witness. The fact that he is not called may no doubt be important, and in some cases even fatal, to the defenders' success, but everything, I think, must depend upon circumstances. In the case of the ‘ Assyria,’ for example, the pilot was not examined as a witness, and although the pursuers founded upon that fact in argument the defenders were successful. In the present case the defenders disposed of all the averments which the pursuers had made against them on record. They proved that their vessel was in good order, and that the crew was attentive and prompt in obeying orders. They further showed what the mistake of the pilot was, and I do not think there was any obligation upon them to put him into the witness-box and ask him to admit that mistake.

I am therefore of opinion that the plea founded on the 633rd section of the Merchant Shipping Act falls to be sustained, and the result is that I sustain the fifth plea-in-law for the defenders and assoilzie them from the conclusions of the summons, and I repel the second part of their fourth plea, in which they seek payment from the pursuers of £2000.”

The pursuers reclaimed, and argued—The fact that the pursuers' vessel was run into while moored to the wharf constituted a prima facie case of negligence against the defenders— The “Indus,” (1886) L.R., 12 PD 46; The “City of Peking,” (1888) L.R., 14 A.C. 40. It was not enough to say, as the defenders did here, that their vessel was in charge of a compulsory pilot, they must show (1) that they themselves had in no way contributed to the collision, and (2) that the collision was due to some specific fault on the part of the pilot — Clyde Navigation Trustees v. Barclay, Curle, & Company, May 23, 1876, 3 R. (H.L.) 44, 13 S.L.R. 753; Owners of the “Strathspey” v. Owners of the “Islay,” July 3, 1891, 18 R. 1048, 28 S.L.R. 787; Mann Macneal & Company v. Ellerman Lines, December 6, 1904, 7 F. 213, 42 S.L.R. 159; Clyde Shipping Company, Limited v. Miller, 1907 S.C. 1145, 44 S.L.R. 920; London and Glasgow Engineering and Iron Shipbuilding Company, Limited v. Anchor Line, July 7, 1903, 5 F. 1089, 40 S.L.R. 753. The defenders were to blame in respect ( a) that they had allowed their vessel to take a “sheer” across the river, ( b) that they had failed to carry out the pilot's orders with sufficient promptness, and ( c) that they had not kept a proper look out. Further, the defenders had failed to aver or prove any specific fault on the pilot's part, and that being so they were not entitled to the benefit of the 633rd section of the Merchant Shipping Act 1894 (57 and 58 Vict. c. 60).

Argued for respondents—The defenders were not bound to prove negatively that they were not in fault. The onus of proving that the defenders were to blame lay on the pursuers, and where, as here, the pursuers had failed to discharge that onus, and the defenders' vessel was in charge of a pilot compulsorily employed, they (the defenders) were entitled to absolvitor — Clyde Navigation Trustees ( cit. supra); Mann Macneal & Company ( cit. supra). No inference could be drawn from the fact that the pursuers' vessel was moored to the wharf, when, as here, the view was obscured by fog— The “Nador” [1909], P. 300. The cases of the “ City of Peking” and the “ Indus,” relied on by the pursuers, were distinguishable, for there the collision took place in broad daylight. Esto, however, that it was not enough merely to say that a compulsory pilot was on board no contributory fault on the part of the defenders or their vessel had been proved. That being so, they were entitled to absolvitor—Merchant Shipping Act 1894 ( cit supra), sec. 633.