Scottish Court of Session Decisions

This was an action by William Leslie and others, owners of the fishing-boat “Ebenezer” of Stronsay, orkney, against thomas walker and others, owners of the steam-trawler “St Clement” of Aberdeen, for £122 as damages. The pursuers alleged that the trawler on the night of 20th May 1885 carried away ten lines, of 6000 fathoms length in all, which they had set that afternoon, about 1¼ mile from shore, in the North Sound, near Papa Westray, properly buoyed and secured, and easily observable, and that the trawler was indeed within sight when they were set. They alleged fault at common law, and also neglect of the provisions of the Sea Fisheries Act 1883, particularly article 15 of schedule 1 and article 19 of schedule 1; that they lost in consequence a fortnight's fishing worth £112, and the value of the lines, £10.

The Sea Fisheries Act 1883 (46 and 47 Vict. cap. 2), first schedule, article 15, provides—“Boats arriving on the fishing-grounds shall not either place themselves or shoot their nets in such a way as to injure each other, or as to interfere with fishermen who have already commenced their operations.” Article 19—“When trawl

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fishermen are in sight of drift-net or of long-line fishermen they shall take all necessary steps in order to avoid doing injury to the latter. Where damage is caused the responsibility shall lie on the trawlers, unless they can prove that they were under the stress of compulsory circumstances, or that the loss sustained did not result from their fault.”

The defenders denied fault or liability, and stated that in any view the claim was excessive, since the pursuers could have supplied themselves with new lines by travelling a short distance to Kirkwall.

It appeared from the proof that the pursuers after setting their lines went on shore, according to the custom of the place, intending to return in the morning for them. Their evidence was to the effect that the trawler could, and the defenders' evidence to the effect that it could not, have observed them and their lines. The trawler was during the night in question trawling round a buoy which it had fixed in the Sound. It appeared that in the morning the pursuers had boarded the trawler and made a claim for lost lines, putting the value of their lost lines at £2, and even at £1, and offering to give up their claim for such sums, which offer was refused, those in charge of the trawler having seen no evidence on any occasion when they lifted their trawl of the presence of lines which had been torn away by it.

The Sheriff-Substitute ( W. A. Brown) found that the trawler might have seen the pursuers setting their lines if a proper look-out had been kept, and that the trawler had carried them away—“That the officers and crew of the said trawler failed to keep a proper look-out while engaged in trawling operations as aforesaid, and failed otherwise to take all necessary steps in order to avoid doing injury to the pursuers' lines, in terms of article 19 of the first schedule appended to the Sea Fisheries Act 1883.” His Lordship gave the pursuers £10 damages for the value of the lost lines, and £10 damages, holding that the pursuers had greatly exaggerated this item.

“ Note.—[ After stating reasons for holding that the nets were set, and the trawler tore them away]—(3) It seems to me that any difficulty there is in the case lies in its last branch, and is connected with the law rather than the facts. Both parties appeal to the common law and the provisions of the recent statute, the pursuers specially founding on article 19 of the schedule annexed to the Act of 1883. The defenders, on the other hand, contend that article 19 is to be read along with article 15, and that it is not applicable to the circumstances of the present case, as the trawler was first on the ground. I think it is the fair construction of the evidence that the trawler was fishing in the North Sound at the time the pursuers set their lines, but it rather seems to me that article 15 is intended to apply to the case of fishing-boats only, and that it is too narrow a reading of article 19 to limit the duty imposed on trawlers by the consideration of which party first arrives on the ground. The statute was evidently designed to give a special protection to the weaker party, and I am disposed to think that the provision in the schedule imposes an absolute obligation on trawlers when long-line fishermen are in sight, or, with proper care, may be observed. But notwithstanding the rules laid down by the Sea Fisheries Act, it seems to me that the main issue in the case must still primarily be controlled by the provisions of the common law. In this view the defenders contend that there is a duty laid on long-line fishermen, after they have set their lines, to remain by them in their boats during the night, in which case the situation of the lines would be marked by the lights which the boats are bound to carry. It is not said that there is any provision in an Act of Parliament or any statutory regulation that a boat shall remain beside its lines during the night, but it is argued that that is a principle of the common law, and in corroboration of that the defenders appeal to the regulations for preventing collisions at sea, annexed to the Order in Council, dated at Balmoral on 17th September 1885, and particularly to section 10 thereof, subsection C. The rule may be quoted for convenience of reference, and is in the following terms—‘A vessel employed in line-fishing with her lines out shall carry the same lights as a vessel when engaged in fishing with drift-nets’—that is, two white lights on any part of the vessel where they may be seen. Now, certainly that is a very distinct provision as to what lights are to be exhibited, assuming fishing-boats and vessels to be in the same category, when they remain beside their lines; but considering what the primary object of the regulations is—viz., to prevent collisions at sea—it strikes me as a somewhat strained principle of construction to extract from them a law to regulate the conduct of fishermen in prosecuting their rights as such. It is proved in this case that the lines were set in the usual way, and that it is quite a common practice to leave them out all night without a watch, and I have judged in several cases in this Court where damages have been claimed and awarded under the same conditions. I quite appreciate the strength of the argument that if fishermen are to be permitted to occupy such a large portion of the highway of the sea as is implied in setting their lines in a continuous line, and are not to be held bound to mark their situation by a light, and trawlers are to be found responsible for destroying them, that practically means the proscription of trawlers from certain localities in the exercise of an admittedly common right. It would, however, be as manifest a hardship to poor fishermen following their calling in remote districts of the country, and knowing little of modes of fishing beyond their own primitive experience, to have their property destroyed when pursuing their vocation as they have been accustomed to do, and in a way that the law, so far as I can see, has never declared illegal. Both trawlers and fishermen are engaged in exercise of their common right to take white fish from the sea, but it is notorious that in pursuance of these rights a conflict of interests may arise, and therefore it is necessary that each party should inform himself as to the conditions under which the other practises his vocation. I think it is proved that there is a practice not only in the North Sound, but in other places, such as the Bay of Aberdeen, of fishermen leaving out their lines all night, and it seems to me that if a trawler betakes himself to such a limited area for fishing as the North Sound, with that knowledge, a special duty of inquiry and vigilance is laid

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upon him both by common and statute law to see that no damage is done. But that is precisely, I think, what the defenders’ trawler did not do, for I believe the master of the trawler strikes the true keynote of the case, notwithstanding his protestations as to the instructions to keep a good look-out, by his admission that it never occurred to him to look out for fishermen's lines; and if that was the frame of mind of the captain, that of his crew may readily be inferred.”

On appeal the Sheriff ( Guthrie Smith) found that the lines were damaged by the trawler, but that the defenders had proved that the loss did not result from their fault.

“ Note.—I think that the Sheriff-Substitute has rightly held that the damage in this case was done by the trawler. The master admits that she was the only trawler in the North Sound of Orkney on the night of the 20th May, and two perfectly neutral witnesses saw her crossing and recrossing about 10 o'clock at night over the part of the bay where the nets were set. It follows that under article 19 of the Convention, which by the Sea Fisheries Act of 1883 has the force of statute, the responsibility lies on the trawler ‘unless she can prove that the loss sustained did not result from her fault.’

“The pursuers commenced to set their lines about three in the afternoon, and about four o'clock left them for the night, their custom being to return next morning and lift them. During the night they admit that they were wholly unattended and unprotected, and were only marked at either end by a skin and cork buoy, surmounted by a flagstaff, rising perhaps 7 feet above the water. The lines were 6000 yards, or nearly miles in length. It is admitted that the weather was hazy, not so much so in the afternoon, but towards evening the haze became very dense, and after dark the two terminal buoys were of no use in indicating the lines.

“It appears that it has always been the custom for the people of the islands to fish in this way, and until they were invaded by trawlers the traffic in these seas was too insignificant to occasion any considerable risk. It is otherwise, however, now, and I have no scruple or hesitation in holding that the local custom must conform to the requirements of the general law. The sea is a public highway open to all, and if a fishermen leaves his lines all night to take care of themselves, it is at his own risk. Had the pursuers remained by their nets they would have been bound to exhibit the lights prescribed for vessels engaged in fishing, and any failure to do so would have disentitled them to recover. Much more when there was neither boats nor light nor anything visible to warn off passing vessels, and if in the darkness another boat chanced to run through their lines she cannot be said to be to blame unless she knew that they were there.

“The question in the case thus comes to be, Did the defenders know? On this point the burden of proof shifts to the pursuers as soon as the defenders have proved negligence in leaving the lines unguarded. I do not think that on the evidence this burden has been discharged. When the pursuers began to set their lines the trawler was observed away to the south, about half-way between them and the island of Sanday, which according to the chart would be about 3 miles. It is inferred that at that distance they might have seen both the boat and what they were doing if a proper look-out had been kept. But the master states that he was on deck all the time, and he is confirmed by his crew in saying that no boat was seen, and they had no reason to suppose that a line had been stretched right across the mouth of the bay. Moreover, the argument cuts both ways. If the trawler was to blame in not taking a more active interest in the operations of the fishermen, it was no less the duty of the pursuers to have made certain that she did see them. It would have been an easy thing to have hailed her, and warned her to keep clear of the lines, especially if one of their own witnesses is right in saying, ‘I expected the trawler would take away some of the “Ebenezer's” lines before morning.’ Thus, in the most favourable view which can be taken of the pursuers’ case, there was negligence on both sides, and I have no doubt that article 19 of the Convention, under which the case falls to be determined, must be read in accordance with the rule of the common law on the subject, namely, that to enable a fisherman to recover, the accident must be attributable entirely to the fault of the trawler, and if there was want of care on both sides he cannot maintain his action.”

The pursuers appealed to the Court of Session, and argued—The trawler was liable in damages. It was found by the two Sheriffs that the lines had been destroyed by the trawler. Under the 19th article of the first schedule of the Sea Fisheries Act 1883 a trawler was bound to take all necessary steps in order to avoid doing damage to the long lines. Here it was proved by the evidence of the fishermen in the “Ebenezer,” and also by independent witnesses, that the trawler and the fishing-boat were in sight of each other on the afternoon of the 20th May. It appears from all the evidence that there was no effectual look-out kept on board the trawler; they did not see the fishermen shooting their lines, and they did not see the boats that passed within 200 yards of them on the morning of the 21st. It was impossible for the fishermen to lie by their nets all night; the weather was too rough, and, besides, it was the common practice of all fishing-boats to go ashore during the night. The captain of the trawler ought to have taken the trouble to inform himself where the lines were, as he knew long-line fishing was carried on in those seas— Combe v. Renton, June 5, 1886, 13 R. (J.C.)

Argued for defenders—It was admitted that the long lines were destroyed by the trawler, but there was no necessity for the trawler keeping a constant watch for the long lines. The first question is, Did the trawler see, or ought she to have seen, the fishing-boat shooting her lines? All the evidence was against it. She was three miles off, and the difficulty of seeing a small boat at that distance was very great. (2) Even if they did not see the boat, they ought to have been warned off by the buoys at each end of the long line, but that was impossible as the buoys were more than three miles apart, and the course of the trawl did not take her near either of them. No vestiges of hooks or long lines were found in the trawl when it was drawn up. If the fishermen saw the trawler they ought to have warned her where their lines were set and she would have avoided them.

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At advising—