Scottish Court of Session Decisions

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Cite as: [1884] SLR 22_22_2, [1884] ScotLR 22_22_2

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, October 29. 1884.

22 SLR 22_2

Watson

v.

The Board of Trade.

Subject_1Ship
Subject_2Loss of Ship
Subject_3Master
Subject_4Duties of Master — Shipping Casualties Investigations Act 1879 (42 and 43 Vict. cap. 72) — The Shipping Casualties (Appeal and Rehearing) Rules.
Facts:

Circumstances in which the Court, acting upon the advice of nautical assessors, found that the sailing ship “Vicksburg” was not lost through improper or unseamanlike navigation on the part of the master, but owing to violent weather and to abnormally over-powering tides, of which the sailing directions for the course which he was taking contained no special warning, and restored to the master his certificate, which had been suspended by the deliverance of the Inferior Court.

Headnote:

The Shipping Casualties Investigations Act 1879 (42 and 43 Vict. cap. 72), section 2, sub-section 1, provides—“Where an investigation into the conduct of a master … or into a shipping casualty has been held under the Merchant Shipping Act 1864, or any Act amending the same … and sub-section 2—“Where in any such investigation a decision has been given with respect to the … suspension of a certificate of a master … an appeal shall lie from the decision to … ( b) If the decision is given in Scotland, either Division of the Court of Session.”

The Shipping Casualties (Appeal and Rehearing) Rules 1880, by rule 6, sub-section ( d), provide—“The court of appeal shall be assisted by not less than two assessors, to be selected in the
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discretion of the court … from either or both of the following classes—1. Elder Brethren of the Trinity House; 2. Persons approved from time to time by the Secretary of State as assessors for the purpose of formal investigations into shipping casualties.”…

The “Vicksburg,” a wooden sailing vessel, having a registered tonnage of 982 tons, was built in Canada in 1863. She was owned by Messrs William Thomson & Company, of Leith, and she was commanded by John Bruce Watson, who held a master's certificate of competency. The “Vicksburg” left Leith on the 15th July 1884 with a crew of twenty-one hands all told, bound to Quebec with a ballast cargo of 750 tons of coal. The vessel passed through the Pentland Firth in safety, and on the morning of the 17th July, at 5 a.m., she was about ten miles W.S.W. of Hoy Heads. It was then blowing a gale of wind from the W.N.W., with thick weather, and as the master feared the ship would not weather the Orkneys, he determined for safety's sake to run back to the Pentland Firth. The weather continued stormy, and the master resolved to stand across to Cantick Head to obtain the shelter of Longhope Bay. After proceeding a part of the way he changed his mind, and determined instead to run to the eastwards, passing through the Pentland Firth by the channel between the Skerries and Ronaldshay, and then to continue his voyage round the Orkneys to the northward. At 3 p. m. the vessel passed the Tail of Swona, and thereafter, counting upon the accuracy of the Admiralty chart as regarded the direction of the tide, he steered an E.N.E. course to pass a mid-channel course between the Skerries and the Lowther Beacon, thus taking the northern of the two channels which a ship may there take. A strong current, however, setting to the S.W., instead of E.S.E., carried the ship with great force to the north-west point of the Skerries, against which she struck about 3.25 p.m., and remained fast. After the ship struck seven of the sailors got into the pinnace, without any officer being with them, and, cutting the painter, allowed the boat to drift into the breakers without making use of either the helm or oars. This boat was overrun by the sea, and five out of the seven men were drowned. The two mates and seven sailors then left the ship in the lifeboat, and succeeded in getting to shore in safety. The captain and four men were left on board the ship, but of these the captain alone succeeded in reaching the shore in safety.

A formal investigation into the circumstances attending the loss of the “Vicksburg” was held at Leith, in terms of the provisions of the Merchant Shipping Acts 1854 to 1876, upon the 5th, 6th, 14th, 15th, and 16th August 1884, before two Justices of the Peace, assisted by three nautical assessors.

A proof was led, and, on its being concluded, the following questions were submitted to the Court by the Board of Trade:—“(1) What was the cause of the stranding of the vessel? (2) Whether safe and proper courses were set and steered after passing Cantick Head, and whether due and proper allowance was made for tide, currents, and leeway? (3) Whether the vessel was under proper and sufficient canvas? (4) Whether a safe and proper course was set after passing Swona, and whether due and proper allowance was made for tide, currents, and leeway? (5) Whether the vessel was navigated with proper and seamanlike care? (6) What was the cause of the loss of life? (7) Whether all proper measures were taken to insure the safety and to save the lives of the crew after the vessel struck? (8) Whether the master and officers are, or either of them is, in default?”

The Court returned the following answers:—“(1) The cause of the stranding of the vessel was that she was not navigated with proper and seamanlike care. (2) and (4) Safe and proper courses were not set and steered, and due and proper allowance was not made for tides and currents. (3) The Court can find no fault with the canvas set. (5) No. The vessel was not navigated with proper and seamanlike care. (6) The want of order and discipline, whereby the boats went off from the vessel without orders, and without an officer being ordered to take charge of each boat. This also answers No. 7 (8) The master and both mates are in default—the master from not having navigated the vessel with proper and seamanlike care, and both mates from prematurely leaving the vessel without orders from the master, and thus leaving five of their shipmates to almost certain destruction; and the Court suspends the certificate of the master John Bruce Watson, No. 15,303, for six months from this date; and the certificates of the first and second mates, Douglas Anderson (No. 014,545) and James Sinclair (No. 04, 897), both for three months from this date. ”

The report of the Court was substantially in terms of answer 8 above quoted. It found that both the master and mates were in default, and suspended the master's certificate for six months, and that of each of the mates for three months from the 18th August 1884. This report was signed by the two Justices of the Peace and the three nautical assessors.

The master appealed against this decision to the Court of Session in terms of section 2 of The Shipping Casualties Investigations Act 1879 (42 and 43 Vict. cap. 72) and The Shipping Casualties (Appeal and Rehearing) Rules 1880, and craved that the said decision in so far as it found him in default and in so far as it suspended his certificate might be recalled, as contrary to the evidence adduced.

At the hearing of the cause the Court was assisted by two Elder Brethern of Trinity House, who sat as nautical assessors.

At advising—

Judgment:

The judgment of the Court was delivered by the Lord President—[ After narrating the facts which have been given above]—A good deal has been said about the captain's vacillation. We have the authority of the nautical assessors (Captains Aitkens and Burne) for saying that no fault could be alleged against the captain in that respect, and that the vacillation he displayed was perfectly reasonable and intelligible in the circumstances. When he got to Cantick Head he formed the resolution of running for the channel between South Ronaldshay and the Pentland Skerries, and so get out to the eastward and sail round the Orkneys. What happened throughout that portion of the day formed the foundation of the judgment of the Court below, and the view they have taken of the evidence was this—“Taking

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into consideration that the ship had a strong fair wind to carry her through the channel, the Court were unable to accept the master's statement of the position of the ship as ever having been near the Lowther Rock on the north side of the channel. But the Court have no doubt this vessel was stranded by having been run to the south end of the Skerries, and then, with these rocks under her lee, wearing round to stand for the northern channel at a time when the flood tide and the wind were both driving her towards the rock; and that the master adopted this fatal resolution, when had he continued his previous course with the wind on the starboard side, he must have gone in safety through the main channel of the Pent-land Firth.” Now, if that is consistent with the weight of the evidence, there can be no doubt that the judgment of the Court below is well founded; but, on the other hand, if the statement of the master is consistent with the fact, and is supported by sufficient evidence, it is quite clear that the ground of the judgment of the Court is inconsistent with the evidence. If it be the case, as the master says, that he took his bearings at Lowther Rock, and was within a mile of it, it is utterly impossible that the view which the Court below has taken of the evidence can be sustained, because they have adopted the statement of a witness named Pittuck, who described the course the vessel took as being from Tail of Swona in a southerly direction down to the eastwards of the Skerries. With regard to the evidence of Pittuck, I can only say that I cannot attach the importance to it that the Court below seems to have done. On the contrary, I think it very inconsistent throughout, and very unreliable, particularly looking to the evident animus of the witness, and the manner in which he speaks of the conduct of the captain in sailing his vessel. The other witness, Macpherson, who seems to have been relied upon also to some extent by the Court below, has very little to say to the purpose, and what he does say is rather consistent with what the master himself says as to the direction in which he steered his vessel from the time he left the Tail of Swona until the casualty occurred. The master's evidence is consistent throughout, and seems to have been given in a very frank and open way, and certainly commands respect, because one cannot but see that he was placed in a position of very great danger, and he seems personally to have done his duty with great earnestness and vigilance, having been forty-eight hours on deck before the casualty occurred. But the captain is by no means unsupported in his statement, because he is corroborated by Sinclair, the second mate, and by Dawson, the lighthouse man.

It appears to me that the strength of the evidence—in fact the whole weight of the evidence—is upon one side, and I cannot adopt the ground of the judgment of the Court below. I think the master was intending, and striving very earnestly, to pass through the channel between South Ronaldshay and the Skerries, and that he navigated his ship to the best of his ability to accomplish his purpose, He thought he did accomplish his purpose, so far as to reach a point between the Lowther Beacon and the Skerries, and that his vessel was much nearer to the Lowther Beacon than it was to the Skerries. The captain said he was one mile, and the second mate three-quarters of a mile off the Lowther Beacon, the channel itself being two miles and a half in width. But, then, after he got to that point between the Lowther Beacon and the Skerries, the disaster commenced, and the question comes to be whether, being justified so far in what he had done, he was entitled to go through that channel at all, or to attempt to go through it, and whether what he did in the attempt to go through it was seamanlike navigation. And here I think we are bound and are only too happy to take the advice of our nautical assessors, and that there may be no mistake about the ground on which the assessors advise us, I shall state the matter in their own words. [ His Lordship then read the following statement by the assessors:—] “It is certain the north channel is not infrequently used by vessels, and with a strong, fair wind, and presumably with a fair tide, it might readily have been deemed by the master, whose object was to stand round the Orkneys to the eastward, the most expedient channel to traverse; and the sailing directions, which contain no warning special to this north channel, or particularising it as inadvisable, are so involved and perplexing in their phraseology and varied in statement, that even if the master possessed the book, of which there was no testimony adduced affirmative or negative, he might well be excused for believing that the existing conditions favoured his decision. We do not, therefore, think that the vessel was not navigated with proper and seamanlike care, or that the courses followed—for none were set, it being stated that the ship was steered by the land—were not initially safe and proper, having regard to the ordinary sets of the tides, which he might have duly anticipated, but which, we believe, proved abnormally overpowering and finally destructive in their effects.”

Now, following that advice, and combined with the view we take of the evidence, the Court has no hesitation in coming to the conclusion the first place, that the ground of the judgment of the Court below is not well founded, and in the second place, that no blame attaches to the master in this matter at all. There may have been, perhaps, to a certain extent an error of judgment; perhaps it might have been better if he had gone the south channel instead of the north channel, but that is a matter upon which the master was bound to judge for himself in such an emergency, and a mere error of judgment will not constitute wrong upon his part. Upon the whole matter, the Court has come to the conclusion that the prayer of the appeal must be granted, and that the deliverance of the Court below, in so far as it finds the master in default, and in so far as it suspends his certificate as master, ought to be recalled.

The Court recalled the judgment of the Court below, and restored the certificate of the appellant.

Counsel:

Counsel for Appellant — Trayner— Dickson. Agents— Beveridge, Sutherland, & Smith, S.S.C.

Counsel for Board of Trade—Solicitor-General Asher, Q. C.— H. Johnston. Agent — David Turnbull, W.S.
1884