Scottish Court of Session Decisions

This was an action at the instance of Mrs Duncan, widow of Archibald Duncan, shoemaker, Aberdeen, against the Magistrates and Town Council of Aberdeen, concluding for payment of £1000 in name of reparation for the death of the said Archibald Duncan, who was drowned by the capsizing of the ferry-boat across the Dee from Aberdeen to Torry on 5th April 1876. The defenders were owners of the ferry, landing-places, and boats.

The pursuers averred that the defenders had been in the habit of letting the ferry-boats and machinery by auction to the highest bidder, irrespective of his possessing any qualifications for the management of boats. No means were provided to protect against overcrowding. The channel of the river Dee had recently been diverted into a new channel, 138 yards wide at spring tides, and the old ferry system of coble and oars had been changed on this new channel for a boat worked by a wire rope fastened to each bank, passing along the length of the boat, and doubling over a wheel or winch in the centre of the boat. Although the current in the new channel ran much more strongly than in the old channel, no new regulations had been made by the defenders, either as owners of the ferry or as Magistrates of Aberdeen, and the old regulations were applicable only to the old channel, where dead water prevailed, and were manifestly dangerous for a strong tideway. The old regulations provided that the boat should start within eight

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minutes after being called for by any person or persons, and made no provisions for the boat ceasing to ply in dangerous states of the water. The tacksman since 1875 was a stone-mason. When the accident occurred on 5th April 1876 the river was much swollen and the boat much overcrowded, and in consequence the wire rope broke and the ferry-boat was capsized.

In reference to the duty of the defenders, the pursuer averred—“(Cond. 7) In particular, it was the duty of the defenders not to let the ferry to a tacksman without taking measures to secure the working of the boat by a person or persons acquainted with the management of boats. They ought also to have provided him with effectual means of securing the boats from overcrowding, particularly on fast-days and holidays. The defenders, by putting on policemen or otherwise, ought to have provided the tacksman with means for controlling the traffic, which was manifestly otherwise out of his power to accomplish. It was their duty as owners of the ferry to provide a perfectly safe means of transit across the ferry, and to have the boats and wires properly inspected, and the wires protected against public interference therewith at the fastenings on the river side. It was their duty, when departing from the ordinary method of ferrying by coble and oars, to make rules and regulations for the new method by wire ropes, and particularly to provide that in rough water or strong currents during ebb tide the boat should not be worked by the rope, but by oars, or not be put on at all. The defenders failed in these duties, and to use said precautions and means for securing the safety of passengers; and by their failure in these respects, or one or other of them, the said Archibald Duncan lost his life.”

The defenders stated that by the lease the tacksman was specially bound to supply the wire rope and all other appliances necessary for the proper working of the ferry.

The defenders' first plea in law was that the pursuer's statements were irrelevant.

The Lord Ordinary pronounced the following interlocutor:—

“19 th June 1877.—The Lord Ordinary sustains the defenders' first plea in law, dismisses the action as irrelevant, and decerns, &c.

Note.—Archibald Duncan was drowned while crossing the ferry between Aberdeen and Torry on 5th April 1876, by the capsizing of the ferry-boat in which he was a passenger.

This action is brought by his widow and children against the Magistrates and Town Council of Aberdeen, as owners of the ferry, to recover damages for his loss.

The ferry was not at the time being worked by the defenders themselves, but by a tacksman, Archibald Kennedy. It was let to Kennedy by public roup for three years from June 1875. The articles and conditions of roup under which he held the ferry are produced, and are founded on by both parties.

The boat was worked by means of a wire rope secured to the bank on either side of the river, and which passed round a wheel in the centre of the boat—the boat being propelled by the turning of the wheel.

It was a condition of the tack that the tacksman should be at the whole expense of supplying the wire rope and all other appliances which might be requisite and necessary for the proper and convenient working of the ferry.

The accident is said to have been caused by the overcrowding of the boat, by the wire rope having been interfered with by unauthorised persons standing there (it is not said in what way), and by the insufficiency of the rope in the strength of the current and stress put upon it.

The particular duties alleged to have been incumbent on the defenders, and which they failed to fulfil, and in respect of which failure it is sought to make them liable in damages, are set forth in article 7 of the condescendence.

With reference to these, the Lord Ordinary does not think that any legal duty lay upon the defenders not to let the ferry to a tenant without taking measures to secure the working of the boat by persons acquainted with the management of boats. It appears to the Lord Ordinary that it was the duty of the tenant to see that the persons whom he employed were qualified for the work. So, also, he thinks it was the duty of the tenant, and not of the defenders, to take the necessary means to prevent the boat from being overcrowded, or the fastenings of the wire rope being interfered with by unauthorised persons, and to see that the means of transit across the ferry were perfectly safe. Nor does the Lord Ordinary think that any duty lay upon the defenders to have the boats and wires properly inspected. Having regard to the situation of the ferry, in the immediate neighbourhood of a populous city, and to the position of the defenders as Magistrates of the city, these are matters which might very properly have been attended to by them. But that is a different matter from a legal obligation incumbent on them, for failure to perform which they can be made legally responsible. As owners of the ferry, the Lord Ordinary does not think any such legal obligations lay upon them.

It is said, however, that although in an ordinary case the owner of a ferry may not be liable for the consequences of the fault of his tenant in working it, yet that in this case the defenders are liable, because they kept their tenant under their control.

The tenant was taken bound by his lease to observe certain rules and regulations enacted by the defenders, and such other rules and regulations as the defenders might from time to time think necessary to make.

Had the accident been in any way attributable to the rules and regulations so enacted—if it had been caused by the tenant acting on them,—the defenders would probably have been liable.

It is said that the rules and regulations provided that the boat should leave either side within eight minutes after having been called for by any person, and that no provision is made for the boat ceasing to ply in certain states of the water. The Lord Ordinary does not think that this rule can be read as an imperative injunction on the tenant to ply across the ferry in all states of the water, or was intended at all to interfere with his discretion in ceasing to do so if he thought the water in a dangerous state. It is not alleged that it was in consequence of the tenant's acting in obedience to this regulation that the accident happened. The Lord Ordinary was referred to the case of Steven v. The Police Commissioners of Thurso, 3d March 1876, 3 Ret. 535, but he thinks the circumstances of the case are quite different.”

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The pursuers reclaimed.

Argued for them—The defenders had let an unsafe subject without making proper regulations. Weston v. Tailors of Potterow, July 10, 1839, 1 D. 1218; Black v. Cadell, Feby. 9, 1804, Mor. 13,905; Dunn v. Hamilton, March 11, 1832, 15 Sh. 853; Kerr v. Magistrates of Stirling, Dec. 18, 1858, 21 D. 169.

At advising—