Scottish Court of Session Decisions

This was an appeal under the Shipping Casualties Investigations Act 1879 (42 and 43 Vict. c. 72), sec. 2, against a decision pronounced by a Court of Investigation into the circumstances attending the loss of the steamship “Ashdale,” of Glasgow, which foundered about ten miles N.W. of Lundy Island, in the Bristol Channel, on the morning of 10th September 1890. The Court of Investigation had found “that the ‘Ashdale’ sank in consequence of an inrush of water into her engine-room, the cause of which is not apparent,” and the present appeal was taken by the master, whose certificate had been suspended by that Court for a period of six months.

It appeared from the evidence that the “Ashdale” was chartered in August 1890 upon a time-charter by Messrs R. M'Cowen & Sons, of Tralee, for which port she sailed in the latter part of the month, after having landed a cargo of coal at Irvine. She duly arrived at Fenit, which is at the entrance of the Tralee Canal, and having there discharged 40 tons of cargo she proceeded up the canal towards Tralee in charge of a pilot. The ship had been aground for one tide while discharging at Fenit, and in her passage up the canal to discharge, and thereafter in her passage down to Fenit, she took the ground repeatedly. The bottom of the canal was soft mud unlikely to damage the ship's bottom. She lay at Fenit to take in 25 tons of ballast, and left upon 3rd September for Cardiff, but anchored for two nights in Brandon Bay awaiting favourable weather. Up to this time she made no water, and upon arrival at Cardiff the ship was found to be perfectly dry.

The ship left Cardiff again upon 9th September with a full cargo of coal, and proceeded down the Bristol Channel upon her return voyage to Tralee. The weather was fine, the wind light, and the sea smooth. At about 1·5 a.m. of the 10th September the master came on the bridge, took a bearing of Lundy Light, which was bearing S.E., and then went to the chart-house, and after a very short time returned to the bridge. Almost immediately on his reaching the bridge, and at a time fixed by the first mate as 1·10 a.m., they (the master and mate) heard what they described as a yell from the engineer Dearness, who had rushed on deck shouting the ship was sinking, upon which the master went aft and looked down into the engine-room, where he noticed water coming up under the platform of the engine-room in what appeared to him to be two large spouts. He then ordered the hands to be called, the boats to be lowered, and the engines to be stopped, which was done. The boats were lowered and manned in about fifteen minutes, and then the master again looked down the engine-room, and according to his own evidence then noticed the water some 2 feet higher than before, upon which he got into the lifeboat, and they pushed off and lay about 100 yards distant from the vessel, and in about some twenty minutes after this the “Ashdale” was seen to founder stern first. The account given by Dearness, the engineer, concerning the leak was that he suddenly heard a rush of water into the ship below the engine-room platform, which was 4 feet above the keel, that he then rushed on deck and informed the master, who was on the bridge, and that when he left the engine-room it was about 1 1 2 feet high; that he again went down below, and in accordance with the master's orders stopped the engines; that he then went to the stoke-hole and told the firemen who were there to go on deck and get into the boat; that at this time the water was on a level with the engine-room platform, and that thereupon Dearness also got into the boat. The fireman, Jeremiah Moriarty, who was in the stoke-hole, stated that he saw no water there until he got on deck, and that he then looked down and saw a little water coming through a small hole into the stoke-hole. Other members of the crew confirmed to a great extent this witness. No attempt was made to discover the nature and position of the leak, to use the pumps, or to close the water-tight door.

In his evidence the master in answer to the question, “Do you think that anything that could have been done then could have kept that vessel afloat from what you saw?” replied—“No, the panic of the crew was too great. The rush of water appeared to be so strong, and the panic of the crew was so great rushing for the boats, that it was impossible for anyone to do anything.” In point of fact no step to save the ship was taken either by the master or by the crew; and the master, in speaking of the means taken by himself to ascertain the extent of the danger, said—“I merely went to the deck-grating and looked down into the

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engine-room. … I simply looked at one side, and ran again as quick as possible.” The pumps of the vessel—which were not set to work at all—had pumping capabilities to the extent of 72 tons per hour.

In answer to the questions submitted by the Board of Trade, the Court, inter alia, replied as follows—“The Court is unable to state the cause of the water found in the engine-room at 1·10 a.m. on the 10th September. No effort was made to ascertain the locality of the leak, to endeavour to stop it, or to keep the water under by means of the pumps. The Court considers that the ‘Ashdale’ was prematurely abandoned, as the steps mentioned in the foregoing answer should have been taken, and could have been taken, had the engines not been stopped, and the pumps thus put out of use.”

The Court at the close of the inquiry suspended the master's certificate as before mentioned for six months from 23rd October 1890, upon the special ground that the master was “in fault as regards the premature abandonment of the vessel;” and the present appeal was taken.

Argued for the appellant—The evidence all went to show that the water was coming into the ship in such quantity as would immediately sink her. The crew was panic stricken, and rushed for the boats, and the master could take no effective measures to save the ship. Besides, the master's first duty was the safety of the crew, and if in presence of imminent peril he committed an error of judgment while seeking the safety of the crew, that was not sufficient. The Merchant Shipping Act 1854 (17 and 18 Vict. c. 104), sec. 242, made suspension of certificate conditional upon the master's “wrongful act or default.” The master here was of sixteen years' standing, and unlikely to be moved by unreasonable fear, and “wrongful act or default” must be proved conclusively. The evidence in the Court below was mainly directed to a charge of scuttling of the ship; the charge of premature abandonment was now sprung upon the master without an opportunity of disproving it. The cases of Watson v. Board of Trade, 22 S.L.R. 22, and Famenoth, 7 Prob. Div., showed what amounted to “wrongful act or default,” and the facts here did not amount to that.

Argued for the respondents—It was conceded that error of judgment was not enough to warrant suspension of certificate. Here there was culpable neglect to use any judgment at all. The master allowed himself to be made the victim of panic, instead of using efforts to allay it. He made no effort to discover the leak, much less to stop it. He gave no orders to close the water-tight compartment, or to use the pumps, and the ship was allowed to sink without any endeavour to save her at a time when from weather conditions and proximity to land her crew were in no danger whatever. The master's actings showed unreasonable fear, and both his acts and defaults were wrongful.

At advising—