Scottish Court of Session Decisions

This action was raised by Alexander Thomson against the Greenock Harbour Trustees to recover damages for an injury said to have been caused to a vessel belonging to him while lying in the defenders' dock. The pursuer averred that the injury was caused by a large stone lying in the bottom of the dock, on which the ship settled down as the tide fell. The case turned chiefly on questions of fact, the only question of law being whether it was necessary to prove fault or negligence by the Harbour Trustees. A proof was led, the import of which will be seen from the Lord Ordinary's note and the opinions of the Judges.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 9th April 1875.—The Lord Ordinary having heard parties' procurators on the closed record, proof, and productions, and having considered the debate and whole process, in the first place, Finds, as matter of fact, that the pursuers have failed to prove that the injuries to their ship, the ‘Albatross,’ damages for which are sued for in the present action, were received in the East India Harbour at Greenock, the locus libelled on the record: In the second place, finds, separatim, as matters of fact, (1) that the East India Harbour of Greenock is and always has been a tidal harbour; (2) that the wharf in that harbour to which the ‘Albatross’ was moored in July 1874, when, as the pursuers allege, the said injuries were received, was formed in the spring of 1873; (3) that after the said wharf was completed—that is to say, between the spring of 1873 and the end of August 1873—the bottom of the said harbour, to the extent of 150 feet outward and southward from the front of the said wharf, was deepened by dredging to the depth of four feet below the eight feet which previously had been the depth of water in that part of the harbour at low water mark of ordinary spring tides; (4) that in the course of and immediately after the close of these dredging operations the said portion of the harbour thus deepened was examined by a diver, that stones or other hard substances, if such there were, not lifted in the process of dredging, by which injuries might be caused to vessels taking the ground at low water, might be discovered and removed; (5) that these dredging operations and the subsequent examination and clearing of the bottom were performed by experienced and efficient workmen under the supervision of the harbour engineer and harbourmaster, who also were persons fully qualified, by reason of their skill and experience, for discharging the duties with which respectively they were entrusted; and nothing occurred in the course of the execution of the said work, or between its completion and the time when the injury to the ‘Albatross’ is said by the pursuers to have been received, which suggested or was calculated to suggest that the said work had not been properly performed, or that the said portion of the harbour in front of the said wharf was, in consequence of a stone or stones having been left upon the bottom, unsafe for the berthage of ships, or that the time had come when a renewed examination of the bottom of this part of the harbour ought, as a measure of reasonable precaution, to be ordered by the defenders; (6) that the stone by contact with and pressure upon which the said injuries to the ‘Albatross’ are alleged by the pursuers to have been produced, is a mooring-stone, artificially prepared, and there is nothing in the proof showing or any way indicating the time when it was lowered or thrown into the said harbour; and (7) that the presence of the said stone in the harbour was neither known to nor suspected by the defenders prior to the time when they were informed by the pursuers that the injuries, reparation of which is now sued for, had been received by the ‘Albatross:’ Finds, as matter of law, that the facts being as set forth in the seven foregoing findings, the defenders, even on the assumption that the injuries received by the said ship were caused by contact with and pressure upon the said stone in the East India Harbour of Greenock, are not liable in damages, nothing constituting fault or negligence on their part having been established: Therefore sustains the defences, assoilzies the defenders from the conclusions of the summons, and decerns: Finds the defenders entitled to expenses, of which allows an account to be given in, and remits that account when lodged to the Auditor for his taxation and report.

“ Note.—The pursuers are the owners of the ship ‘Albatross,’ and sue the defenders, the

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Trustees of the Port and Harbour of Greenock, for damages for loss sustained from injuries said to have been received while the ‘Albatross’ was berthed in the East India Harbour of Greenock. No dispute was in the end maintained as to the amount of the reparation claimed. The defenders at the debate upon the proof admitted that if the pursuers were entitled to damages the sum sued for was not in excess of the loss which had been sustained; but they contended, in the first place, that the pursuers had failed to prove that the injuries to the ‘Albatross’ were received in the harbour of Greenock; and, in the second place, that even should the opposite conclusion as to this point be adopted, the defenders could not be held liable for the consequences, inasmuch as fault or negligence upon their part had not been established. The Lord Ordinary has sustained these pleas, and an interlocutor assoilzieing the defenders has accordingly been pronounced. 1. On the question whether the ‘Albatross’ was injured in the harbour of Greenock, the Lord Ordinary has experienced great difficulty in coming to a conclusion. He all along has had doubts upon the point, and he has doubts still; and it is only because these doubts remain unremoved that judgment upon this part of the case has been given against the pursuers. They are suing for damages. The defenders admittedly are not liable if the injuries of which reparation is sought were not received in the harbour of Greenock, and the pursuers must be unsuccessful if this cardinal point has not been established. There are several circumstances which undoubtedly support the view that the ‘Albatross’ received the injuries complained of when berthed in the East India Harbour at Greenock. In the first place, she was thoroughly overhauled in March 1873 before setting out on a voyage from Greenock to the St Lawrence. It is, the Lord Ordinary thinks, as clearly proved as anything could be that her keel was then unbroken, and that she was every way staunch and strong. In the second place, her voyage across the Atlantic was, as regards wind and weather, an average voyage. So far as known to those on board, nothing occurred which could produce such injuries as those which were ultimately discovered, and the behaviour of the ship, particularly the comparatively small amount of the leakage, seems to prove the improbability, though certainly not the impossibility, that such a disaster was encountered. In the third place, though, according to the evidence of one of the defender's witnesses, there are parts of the St Lawrence over which the ‘Albatross’ passed in going up and in coming down where injuries to the bottoms of ships navigating these waters are occasionally received, there is no trace in the proof of anything which shows that the ‘Albatross’ came into contact with the ground. Had she touched while sailing the probability is that the occurrence must have excited observation. This, at anyrate, appears to the Lord Ordinary to be the more reasonable view of the matter, but he is prevented from expressing dogmatically any opinion upon the point, because, while all are agreed that the ‘Albatross’ was injured, as described on the record, sometime between the end of March 1873 and the end of July 1874, nobody on board had even a suspicion of the accident at the time it occurred. The ship, when taken out of the East India Harbour at Greenock and placed in Caird's graving dock, was, till the water was removed from that dock, believed by all connected with her to be perfectly sound. In the fourth place, the ‘Albatross,’ on her return voyage from the St Lawrence, showed no signs of such a leak as suggested that serious injury had been sustained. This circumstance, some of the defenders' witnesses tell us, does not exclude the possibility that injuries had been received such as were afterwards discovered. The ship was a wooden ship, timber laden, and, as these witnesses think, an amount of water in the hold which in other circumstances would have caused anxiety, might, as things were, hardly excite observation. The Lord Ordinary is not satisfied that this suggestion should be regarded as a sufficient explanation. His opinion rather is that the evidence furnished by the log-book is to the effect that not only was there no such leak as could in any case create anxiety, but that the water which came in was so small in quantity as to lead presumptively to the conclusion that injuries like those in question had not been sustained. All these considerations favour the view that these injuries were not received before the ‘Albatross’ entered the harbour of Greenock in the latter part of July 1874. Neverthless, they are not decisive of the question. The most which can be said of them is that they predispose us to regard as sufficient evidence upon the point which otherwise might, or rather must, have been thought inadequate. And yet, though things at the outset beget a presumption in favour of the contention which the pursuers maintain, the conclusion to which the Lord Ordinary has been brought, by a consideration of the proof upon both sides which has been adduced, is that the point in dispute has not been established. The grounds of this opinion will now be shortly explained. The Lord Ordinary thinks it is not proved (1) that the stone by which, as the pursuers allege, the injuries were caused was under the keel of the ‘Albatross,’ while berthed at the wharf in Greenock harbour. It was near to the keel certainly. Not only, however, is it not shown that it was under the keel, but the contrary, in the opinion of the Lord Ordinary, has been proved; (2) That the ‘Albatross,’ in consequence of the withdrawal of water at low tide, could have settled upon the stone, even had it been below her keel, with such a weight as to produce the injuries in question. There is a conflict of evidence upon this point, but that adduced by the defenders is as trustworthy as that adduced by the pursuers; and the consequence is the existence of a doubt, to the benefit of which the defenders are entitled. And (3) that if the stone had been under the keel, and if the water at the lowest of the tide fell so low that the ‘Albatross’ must have come down upon it with a pressure such as was requisite to produce the injuries, the bottom of the harbour was so hard that the stone would break the keel of the ship instead of sinking under her weight into the ground. Here again there is a conflict, and a conflict too which, so far as the Lord Ordinary sees, excludes all idea of reconciliation. The misfortune is that there is nothing in the character or in the position of the witnesses, or in the nature of the testimony they bear, which entitles the Lord

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Ordinary to choose between the proof adduced by the pursuers and the proof adduced by the defenders. In place of determining whether the witnesses for the pursuers or those for the defenders are to be believed, he has, from inability to decide this question, come to the conclusion that, in consequence of the conflict which exists, this part also of the pursuers' case has not been proved. (4) A judgment to this effect upon the facts, so far as hitherto considered, entitles the defenders to be assoilzied, and consequently another ground was not required for the decision of the cause. But, in the circumstances, the Lord Ordinary has thought it due to the parties that the other defence should also be disposed of by his interlocutor. This defence is to the effect that, even were it proved that the ‘Albatross’ was injured in Greenock Harbour, the defenders could not be made answerable for the consequences, inasmuch as fault or negligence upon their part has not been established. As to the law, there is no controversy between the parties. The pursuers cited at the debate the cases of the Mersey Docks Trustees v. Gibbs and Penhallow, Law Rep. 1 Eng. & Ir. App. p. 93, and the defenders admitted that the rules of liability sanctioned by these decisions were applicable to the Greenock Harbour Trust. The only question in dispute, therefore, is a question of fact. Has fault or negligence been proved? The Lord Ordinary's opinion is that fault or negligence has not been proved. He thinks the defenders have shown, in the first place, that the part of the East India Harbour at Greenock within which the ‘Albatross’ was berthed was dredged, examined, and cleared between February 1873 and the end of August in that year; in the second place, that the interval between the close of these operations and the time when, according to the allegations of the pursuers, the ‘Albatross’ was injured, was not such as, either by custom or in consequence of anything brought to the knowledge of the defenders, ought to have suggested a renewed examination of the bottom of the harbour as a reasonable precaution; and, in the third place, that the defenders neither knew nor ought to have known, or even suspected, that a cause of danger such as the stone by which the injuries to the ‘Albatross’ are said to have been produced, or any other thing by which the safety of vessels using the harbour was imperilled, lay out of sight under water in the dock. Unquestionably the presence of the stone, assuming that while the ‘Albatross’ lay berthed it was where subsequently discovered, could have been ascertained by the defenders had men been employed to prosecute the search; but this consideration, the Lord Ordinary thinks, falls short of proof of fault or negligence on the part of the defenders. It would be an unreasonable reading of the rule sanctioned by the House of Lords to hold that to counteract possibilities there must be kept up a constant examination of the bottom of a harbour; and, failing this, should injury be caused by the presence of an unsuspected stone, the Trustees, who are the administrators of its affairs and funds, shall be dealt with as guilty of fault or negligence, and as a consequence be subjected to liability for reparation of the loss which has been sustained. And yet, unless the rule shall be thus read, fault or negligence cannot on the present occasion be brought home to the defenders. Had the interval been such as, according to the usage, suggested a renewed examination as a reasonable precaution, or had anything occurred which ought to have led the defenders to suspect that there lay buried in the mud under water that which was a source of danger to shipping, their omission to do what was thus pointed out as requisite in the circumstances would have been a culpable neglect; but neither of these alternatives has been established. It is perfectly possible, and the circumstance would not be inconsistent with anything which has been proved, that the stone in question was thrown or was lowered into the water the week before, or even the day before, the ‘Albatross’ was berthed; and the argument for the pursuers on this part of the case involves the conclusion that though the occurrence was neither known nor suspected by the defenders, the non-removal of the stone would of itself be sufficient to render the defenders liable as for fault or neglect. The Lord Ordinary is unable to accept as sound a view of the law by which such a result would be sanctioned. There is, he thinks, nothing hitherto laid down or recognised in any of the decisions which necessitates, or rather which would warrant, the adoption of such a principle, and accordingly his judgment upon this point also is against the pursuers, and in favour of the defenders.”

The pursuer reclaimed.

Authorities for pursuer— Gibbs v. Liverpool Dock Trs., 27 L. J. (Exch.) 321.

For defenders— Parnaby v. Lancaster Canal Co., 11 Ad. and Ellis, 223; M'lntyre v. Wright, 24 Dec. 1859, 32 Jur. 143; Winch v. Thames Conservators, 9 L. R. (C. P.) 378.

At advising—