Scottish Court of Session Decisions

This was an action of damages in the Sheriff Court of Lanarkshire at the instance of Hine Brothers, steamship owners, Maryport, against the Clyde Navigation Trustees for injuries caused to their vessel the “Horatio,” a steamer of 261 tons register, by a collision with a hopper barge belonging to the defenders.

The “Horatio” upon the evening of the 21st October, when it was dark, in the course of a voyage from Glasgow to Hamburg was proceeding down the Clyde in charge of a duly qualified pilot. When she rounded Garvel Point her helm was to starboard, and she continued under a starboard helm, which carried her to port, towards the south bank of the river in the direction of Greenock. The hopper barge No. 4 was proceeding up the river on her way to Port-Glasgow, keeping as near the south bank of the river as possible. When the two vessels came near each other the barge starboarded her helm. The “Horatio,” almost at the same moment, ported her helm to try and get into the middle of the channel, and in spite of both vessels reversing their engines, the barge struck the “Horatio” amidships and caused her damage. The place where the collision took place was in Cartsdyke Bay, nearly opposite Greenock. Both parties founded on the Board of Trade rules for preventing collision at sea, which are quoted in the interlocutor of the Sheriff-Substitute infra.

The pursuers pleaded—“(2) The said collision having been caused by the fault of defenders, or those for whom they are responsible, the pursuers are entitled to decree as craved.”

The defenders pleaded—“(l) The collision not having been caused by the fault of the defenders, or by those for whom they are responsible, the defenders are entitled to absolvitor, with expenses. (3) Separatim—The pursuers, or those for whom they are responsible, having caused or materially contributed to the said collision, the loss will require to be apportioned according to law, and the defenders found liable in their share only.”

The evidence led before the Sheriff-Substitute showed that the “Horatio,” in keeping the course she did under a starboard helm after rounding Garvel Point, did wrong, as a vessel going out to sea ought to have kept to the north side of the river. The barge was so close to the south side that she could not have gone to starboard without running ashore. As she came up the river she saw only the green light on the starboard side of the “Horatio,” and saw no other till after she had put her own helm to starboard. The night was so dark that nothing was visible except the lights. The barge thought the “Horatio” was going into Greenock, and accordingly steered for the middle of the river so as to get out of her way. To do so she starboarded her helm, which was contrary to the rules of proper navigation in the circumstances. Almost immediately afterwards the “Horatio” ported her helm, after sounding her whistle, and she thus came across the bows of the barge and the collision occurred.

On 22nd November 1887 the Sheriff-Substitute ( Lees) pronounced this interlocutor:—“Finds that on 21st October 1886, while the steamship ‘Horatio,’ belonging to the pursuers, was proceeding down the Clyde, and the hopper barge No. 4, belonging to the defenders, was proceeding up the Clyde, they came into collision in Cartsdyke Bay, near Greenock: Finds that by article 21 of the regulations for preventing collisions at sea, issued in pursuance of the Merchant Shipping Act 1862, it is required that ‘in narrow channels every steamship shall, when it is safe and practicable, keep to that side of the fair way or mid channel which lies on the starboard side of such ship’: Finds that the place where the collision occurred falls within this rule: Finds that at the time of the collision both vessels were on the southern half of the channel: Finds that by article 15 of said regulations it is required that ‘if two ships under steam are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other’: Finds that when the master of the barge saw that a collision was imminent, or that his vessel would be driven on shore, he tried to pass on the starboard side of the ‘Horatio’: Finds that at or about the same time the helm of the ‘Horatio’ was put to port: Finds that the peril in which the vessels were placed arose from the fault of the ‘Horatio’ in being on the wrong side of the channel, and would not otherwise have occurred: Finds that the actual occurrence of the collision was caused by the master of the barge trying to pass on the starboard side of the ‘Horatio’: Finds in these circumstances as matter of law that the peril having originated in the fault of the ‘Horatio’ in being on the wrong side of the channel, the pursuers are thereby barred from obtaining compensation for the injuries received by their vessel through any fault of the defenders servants in trying to take the barge past the ‘Horatio’ on her starboard side: Therefore as soilzies the defenders from the conclusions of

Page: 365↓

the action, and decerns: Finds the pursuers liable to them in expenses, &c.

Note.—… The general requirement as to how vessels shall pass one another where they meet end on, or nearly end on, is that each is to pass on the port side of the other. The pursuers contend that as the barge transgressed this rule the defenders are therefore liable to them in compensation. They found on the well-known case of The Stoonwart Maatschappy Nederland v. The Directors of the Peninsular and Oriental Steam Navigation Company, 1880, 5 App. Cas. (H.L.) 876, as establishing liability against the defenders. That case, however, did not go quite so far as the pursuers contend, though it did emphatically lay down the rule that disregard of the directions given by the regulations is not to be based on considerations of discretion and expediency, but on actual necessity. The House of Lords accordingly held, in regard to the claim for compensation made by the owners of each vessel, that both were to blame. In the present instance the only claim made is by the pursuers, and therefore the judgment must be the same, whether they fail to prove fault on the part of those in charge of the barge, or whether they prove it if they themselves were also to blame.

The defenders contend in reply that as matter of fact the ships were not end on, or nearly so; but I am inclined to believe on the whole that they were sufficiently so to let article 15 of the regulations apply.

But the defenders maintain they are entitled to immunity in respect of the provisions in article 21 of the regulations, which requires that in narrow channels a steamship is to keep on that side of the fairway or mid channel which lies on her starboard side. The pursuers say this rule is inapplicable as the place where the collision occurred was beyond the limits of the river. But in my opinion the rule is not limited to the river. It is not a question of where is the mouth of the river, and that all above that is narrow channel, and all below it is not so. As matter of fact I understand the channel is broader above the spot where the collision occurred than at it or below it. And I should have little hesitation in holding that the rule would apply as regards the Kyles of Bute or Loch Long. The only requirement to make the rule apply is that the place in regard to which it is mooted is a narrow channel, and therefore I should think it applicable to a narrow passage between islands anywhere, or between an island and the mainland. Indeed, it would be absurd to say that the rule was to be applicable at a place where measures of precaution were little needed, and not where they were most needed. It is the narrowness of the channel that creates the danger, and therefore requires that to avoid risk of collision where there is no room to manœuvre each vessel shall keep to her own side of the channel.

Now, the ‘Horatio’ transgressed this rule. And this was the source of the danger. It was the fons et origo mali, and if the ‘Horatio’ had kept to her proper side, as the barge did to hers, nothing that the barge could have done would have brought about the collision.

It is therefore unnecessary to determine whether the master of the barge was right or was wrong in trying to escape injury by passing the ‘Horatio’ on the starboard side. Possibly the case was one of actual necessity. This, however, is open to argument. But even assuming that it were held that the barge was wrong in trying to pass on the starboard side, the important point is that her election or adoption of this wrong course could not have occurred if the ‘Horatio’ had kept to her own side of the channel. The barge was close to the shore on her proper side of the channel, the ‘Horatio’ was where she had no right to be, and as it was her being there created the danger, I think her owners are barred from obtaining the compensation that they seek.”

The pursuers appealed to the Court of Session, and argued—It was admitted that the “Horatio” was to a certain extent in the wrong in keeping too near the south shore, but that was entirely a question of degree. According to the Sheriff-Substitute's findings in fact both the ships were in the wrong, and that did not bar the ship injured from claiming damages, it merely divided the amount between the two ships. Even if the fact that the “Horatio” was on her wrong course had caused some confusion on board the barge, that would not relieve them of liability, as their bad navigation was the ultimate cause of the disaster. They were therefore liable, if not for the whole damage, at least for half— Spaight v, Tedcastle, March 7, 1881, 6 L.R., App. Cases 217; Cayaer v. Carron Company, Aug. 1, 1884, 9 L.R., App. Cases, 873; “ The Benares,” Dec. 3, 1883, 9 L.B., P.D. 46.

The respondents argued—The barge was not at all in fault. The evidence showed that she saw the “Horatio's” green light only as she came up the river. That indicated that the ship was going to touch at Greenock. The crew of the barge, thinking that, did their best to avoid her, and stood out for the centre of the river; then the “Horatio” ported her helm, and that caused the collision. Either the “Horatio” was going to touch at Greenock or she was not. If she was, then the barge had to get out of her road in the best way she could, in which case the “Horatio” ought not to have ported her helm; or she was going out to sea, and then she ought to have been on the north side of the river, and not to the south at all. In either case, if the “Horatio” had acted properly the collision would not have occurred—“ The Oceana,” June 7, 1878, 3 L.K., P.D. 60; “ The Bywell Castle,” July 15, 1879, 4 L.R., P.D. 219.

At advising—