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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Currie v. Allan and Campbell [1894] ScotLR 31_814_1 (17 July 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0814_1.html
Cite as: [1894] ScotLR 31_814_1, [1894] SLR 31_814_1
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[Sheriff-Substitute of Lanarkshire.
v.
Facts:
A steamship lying in a perilous position at a quay was unable to sail because another vessel lying outside had the ropes mooring her to the quay stretched across said ship. During the whole of one night it was impossible for the outside and smaller vessel to sail with safety, and in the morning when she might possibly have made the attempt some of the crew still refused to go to sea. The master of the inside vessel after repeatedly requesting the master of the outside one to move, and having given warning of what he would do, cut the ropes and sailed away. The crew on board the other ship with difficulty got on shore, while the vessel was driven on to the opposite coast and there stranded, sustaining considerable damage.
Held that it lay with the master who had cut the ropes to justify what he had done, that he had failed to do so, and that the owners of his vessel were liable in damages for the loss sustained by the one cut adrift.
Observed that a man is not entitled to
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save his own property at the expense of that of another without indemnifying him, and that the proper remedy of the owners of the ship prevented from sailing would have been an action of damages for any loss caused through the fault of the outside vessel.
About half-past three on the afternoon of Friday 17th November 1893 the s.s. “Easdale” arrived at Port Askaig, Islay, which has no proper harbour and no projecting pier but a quay to which about two vessels can lie moored. When the “Easdale” arrived the “Macbeth” was moored at the end of the quay furthest from the shore, and behind her the “Islesman,” alongside and outside of the “Islesman” the “Dunlossit” was lying, and the “Easdale” took up her position outside of the “Dunlossit,” across which her ropes were thrown and attached to the quay. The “Easdale” merely called for orders and intended to sail very shortly, the “Dunlossit” meant to sail that afternoon and indeed remonstrated with the “Easdale” for taking up a position which prevented her getting to sea. The “Easdale” had not received her orders at six o'clock, and thereafter the wind freshened to a heavy gale making it impossible for her to leave with safety. During the night these two vessels knocked against each other and the belting was torn off the “Dunlossit.” In the course of the night and morning the master of this vessel repeatedly requested the “Easdale” to move, and in the morning the master endeavoured to get his crew to proceed to sea as the gale was moderating; two of them however refused to go until the weather moderated still further, and the mate went away altogether. The “Dunlossit” was a vessel of 49 tons with engines of 40 horse-power, while the “Easdale” only measured 85 feet over all, and had engines of 20 horse-power. About 8 o'clock on the morning of the 18th November the master of the “Dunlossit,” after repeatedly threatening he would do so, cut the ropes of the “Easdale” and sailed away. The “Easdale's” crew then on board with difficulty got ashore, the vessel itself was driven over to Jura and there stranded, sustaining considerable damage. Shortly thereafter the end of the quay gave way, and the “Macbeth” drifted down into the place previously occupied by the “Dunlossit” and “Easdale.” The whole facts of the case as found by the Court are set out in the opinion of the Lord President and in the interlocutor pronounced by the First Division.
John Currie, hotel-keeper, Ballachulish, owner of the “Easdale,” brought an action in the Sheriff Court at Glasgow against Francis Allan, commission agent, Glasgow, and Neil Campbell, shipmaster, Port Askaig, joint-owners of the “Dunlossit,” for £450, being the amount of the damage alleged to have been sustained by the former vessel.
The pursuer pleaded—“The s.s. “Easdale” having sustained the loss and damage before condescended on, and such loss and damage having been caused wrongfully and unnecessarily by those on board the s.s. “Dunlossit,” for whom the defenders are responsible, the pursuer is entitled to decree as craved, with expenses.”
The defenders pleaded—“(2) The pursuer's master and crew having abandoned their vessel, which became a source of danger, and having regard to the state of the weather, the position of the various vessels, and the whole circumstances, the defenders' master was justified in cutting the “Easdale” adrift.”
Upon 6th April 1894 the Sheriff-Substitute ( Balfour) after a proof assoilzied the defenders.
“ Note.—… Under all the circumstances I am of opinion that the master of the ‘Dunlossit’ was justified in cutting the ropes of the ‘Easdale,’ because (1st) the ‘Easdale’ took up a dangerous berth at the quay, which she at first intended to occupy for only fifteen minutes; (2nd) the ‘Dunlossit’ had already suffered considerable damage at the quay from lying between the other two steamers; (3rd) at break of day the storm had not abated, and the ‘Dunlossit’ lay in a position of great danger; (4th) she could only get away by cutting the ropes of the ‘Easdale’; (5th) the ‘Easdale’ herself could not move for want of a proper crew; and (6th) if the ‘Dunlossit’ had not moved away at the time she did, she and the other vessels would have been wrecked by the ‘Macbeth’ coming down on the top of them. …
The following authorities were referred to for the pursuer, viz.— Rylands v. Fletcher, 3 L.R. (H. of L.) 330; Radley v. London and North—Western Railway Company, 1 App. Cas. 754; and Davies v. Mann, 10 M. and W. 546.
The following authorities were referred to for the defenders, viz.— The ‘ Pladda’ and The ‘ Kepler,’ 2 L.R. (Prob. Div.) 34 and 40; The ‘Uhla,’ Maritime Law Cases, iii. 148; The ‘ Vivid,’ Aspinall's Maritime Cases, i. 601; The ‘ Excelsior,’ L.R. (Ad. & Eccle. Cas.) ii. 268; The ‘Clara Kellam’ L.R. (Ad. & Eccle. Cas.) iii. 161; The ‘Volcano,’ Robinson's Admiralty Reports, ii. 337; Marsden on Collisions, 507.”
The pursuer appealed to the First Division of the Court of Session, and argued—(1) The “Easdale” was entitled to take up the position she did; at such a quay as this it was her only course. There was no case of a foul berth. (2) She was prevented by the exceptionally bad state of the weather from going to sea, and that was a reason freeing her of all liability for keeping back the “Dunlossit.” (3) There was no case of desertion except on the part of the mate; the crew were willing to go to sea when the weather moderated. The fate of another vessel (the “Barra—coutta)” showed them it would not be safe to try to go to sea. (4) The master of the “Dunlossit” had failed to show any grounds for taking this extraordinary step. There was no question of danger to life. If he had had patience, both would have got away in safety, for the gale was moderating. The giving way of the quay was
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unforeseen. If his vessel was being injured or delayed by the fault of the “Easdale,” his remedy was by action of damages against the owners. (5) If he took the matter into his own hand and saved his own property at the expense of that of another, he must pay the damage sustained by that other— cf. Rylands v. Fletcher, 1868, L.R., 3 (H. of L.) 330. Argued for respondent—(1) The initial fault was that of the “Easdale,” which had practically taken up a foul berth, and for all that resulted therefrom her master had himself to blame— Bailiffs of Romney Marsh v. Trinity House, 1870, L.R., 5 Exch. 204; Marsden on Collisions (3rd ed.) 502–503, and cases there cited, especially “ The Innisfail,” 1877, 35 L.T. (N.S.) 819. (2) The “Easdale's” crew had deserted her, and the master of the “Dunlossit” had no other course open to him. If he had not acted as he had done, both his vessel and the “Easdale” would have been seriously injured by the “Macbeth” coming down upon them when the quay gave way. Even if he had not foreseen this precise danger, it showed the perilous position he was in, and that his action was reasonable in the exceptional circumstances of the case. A master was entitled in special circumstances to cut another ship adrift—Balfour's Practicks, p. 625.
At advising—
I think it sufficiently clear that prima facie the act of the master of the “Dunlossit,” in cutting the moorings of the “Easdale” and sending her adrift was an illegal act, and that it is therefore for the defenders to justify that act on some ground known to law. I shall state briefly what I take to be the facts.
Port Askaig has no harbour, and vessels lying there are moored to the pier or wharf, there being no pier projecting into the sea. On the afternoon of the 17th the “Dunlossit” was lying moored when the “Easdale” arrived, and the “Easdale” accordingly lay outside the “Dunlossit,” and was moored to the quay by ropes which passed over the “Dunlossit.” The “Dunlossit” explained to the “Easdale” at the outset that she intended soon to leave, and the “Easdale” had no intention herself of making any stay. By six o'clock, however, the storm had come on, and the “Easdale's” business at Port Askaig was only then finished. From that time onwards the storm raged with great violence, and two of the “Easdale's” hands declined to go to sea on account of the severity of the weather. Whether, if she had been fully manned, she could safely have gone out to sea may be doubtful, but it is certain that with two of her crew away it would have been impossible to face the storm. The “Easdale accordingly stayed where she was. Meanwhile the “Dunlossit” was impatient to get away. She was lying between two steamers, the “Easdale,” as already explained, being outside her; as the night went on she was suffering damage from the other steamers tossing against her, and tearing the belting off her side, and I think that towards morning her position became one of considerable peril, having regard not merely to the contact with the steamers on either side, but also to the proximity of a fourth steamer moored in front of her. Suffering damage from hour to hour, and apprehensive of dangers which might involve the destruction of his steamer, the master by eight in the morning had resolved that his position was no longer tolerable. He had repeatedly appealed to the “Easdale” to let him out, but it was manifest that the “Easdale” could not move without having to go to sea, and could not go to sea without her crew. Accordingly the master of the “Easdale” refused to move. The master of the “Dunlossit” threatened several times to cut the moorings of the “Easdale” before he actually did so. About, eight he proceeded to do so, and the men on the “Easdale” had just time to clear out before the steamer was sent adrift.
Now, I am prepared to hold that the “Dunlossit” was suffering substantial damage and was in serious peril; that she could only avoid damage and peril by going out; and that as the “Easdale” declined to move, the cutting of that steamer's moorings was the only way of enabling the “Dunlossit” to escape damage and peril. On the other hand, it is equally certain that to cut the “Easdale” adrift was to expose her to at least equal damage and peril; and it is not disputed that when the master of the “Dunlossit” sent the “Easdale” out into the storm he did it with his eyes open to what it meant to that vessel.
In using the word “peril” it is necessary to remember that there is on neither side any question of peril to life. It was, so far as the “Dunlossit” was concerned, merely present and probable injury to the ship to a greater or less (and an entirely uncertain) extent; that is put forward as the justification of the act in question. On the other hand, as already pointed out, the men on the Easdale had time to clear out before she was sent adrift.
Now, I own to having a strong repugnance
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Let it be remembered, however, that the question we have got to settle is not whether the master of the “Dunlossit” can be justified in foro poli for laying violent hands on his neighbour's goods. The question is, who is to bear the loss? Now, I cannot help thinking that the frankness of the defenders' claim is apt to make one forget its exceeding arrogance. They assert right for their own benefit to seize and destroy another man's ship, and to make him pay for the consequences. This new form of compulsory taking would have for its characteristics that it is unauthorised by anything but the needs of the taker, that it serves none but his private benefit, and that it is unrestrained by any obligation to compensate. I own my inability to fall in with such views.
A subordinate argument was submitted that there was no damage, inasmuch as the “Easdale” would have been destroyed had she been left where she was at the pier. This theory is highly conjectural, and in my opinion the evidence does not establish it
I am for recalling the interlocutor of the Sheriff-Substitute.
There is no doubt from the evidence, and indeed it is matter of general knowledge, that when the master of the “Easdale” moored his vessel alongside and outside of another vessel he was only exercising one of the ordinary rights of vessels touching at ports of the description of Port Askaig. It is equally clear that he was under obligation to withdraw when required and when practicable in order to enable the inside vessel, the “Dunlossit,” to proceed on her voyage. But this obligation on the part of a vessel lying in the way of another must be qualified by this condition, that it must only move as and when it can do so consistently with its own safety. In a crowded harbour, for instance, it may be impossible to move at any moment so as to let the boat nearer the land get clear, and at a wharf open to the sea like the one here, if the vessel required to move cannot do so without risk of loss of the ship or the crew, that is equivalent to physical impossibility.
Certainly in the ordinary case the obligation to move is not an obligation to leave the ship, and then to cut her moorings and allow her to drift on to a lee shore; it is an obligation, if possible, to give the other vessel a passage, having regard to the relative positions of the ships and the dangers of navigation, returning afterwards to the quay if the master wishes to do so.
On the night in question it was the intention of both vessels to proceed on their respective voyages, but it is also certain that when they were ready to sail it was not safe for either of them to go to sea. As at that time the master of the “Easdale” was undoubtedly justified in refusing to move, indeed his view is acquiesced in by the master of the “Dunlossit.” But during the night a fresh element of difficulty was introduced, because the master of the “Easdale” in his anxiety to get to a safe harbour had tried to persuade his crew to go to sea; they had refused, and the mate had absconded. On the following morning, therefore, when the “Dunlossit” wished to proceed, while I think there is considerable doubt as to the possibility of the “Easdale”—a small and unloaded vessel—proceeding to sea with safety, even assuming her crew were all on board, it was clearly impossible in the then state of the weather to sail with an insufficient crew.
I am far from saying that a master who refused to move because his crew had declined to go to sea could remain in the position he had taken up, although obstructing the progress of another vessel, without incurring the risk of having to pay damages of the nature of demurrage to that other vessel for any loss she might sustain
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Admitting, however, that the master of the “Easdale” was in the wrong in not having a sufficient crew on board, we have a very different question before us here, viz., whether in that state of circumstances the master of the “Dunlossit” was entitled to cut the “Easdale” adrift and send her to perdition. I could not assent to that proposition even if there had been no crew on board, although in such circumstances the master of the vessel wishing to move might be justified in removing at his own hand the vessel obstructing his course and taking her out, if he took her back afterwards. I have no doubt he might do so, but the right which is here asserted is that while the “Easdale” could not with safety go out, the master of the “Dunlossit” was entitled to cut her adrift and make her a derelict.
In the course of the argument I asked whether the authority of any jurist or any moralist could be cited for such a proceeding. No authority was given, and I know of no principle in law allowing one, who apprehends the loss of his own vessel, the right to take the matter into his own hands and wreck his neighbour's to prevent such loss. I can see that very alarming consequences might result from the recognition of such a principle, and I am satisfied that there is no such right. Nor could I imagine a more unfavourable case for its exercise, even if such right existed, because I think that if the “Dunlossit” had waited a few hours longer until the gale had subsided both vessels could have got away in safety.
I agree with your Lordship in thinking that the owners of the “Dunlossit” are responsible for the damage caused to the “Easdale” by the cutting her adrift.
Counsel explained that the amount of damage had not been adjusted, and concurred in asking that the case should be remitted to the Sheriff.
The Court pronounced the following interlocutor:—
“Find as matter of fact that on the afternoon of 17th November 1893, while the s.s. ‘Dunlossit’ lay moored to the quay at Port Askaig in the Isle of Islay, the s.s. ‘Easdale’ came to Port Askaig, and was moored to the quay alongside but outside of the ‘Dunlossit’ by ropes passed across the ‘Dunlossit;’ that before six p.m., and while the two steamers thus lay, a gale of exceptional violence came on, which lasted all night and until after the unmooring after mentioned; that throughout the night the ‘Dunlossit’ suffered considerable damage through the tossing against her of the ‘Easdale’ and of another vessel lying on her inner side; that the master of the ‘Dunlossit,’ from and after six p.m. on the 17th November, desired to leave, but that it was impossible for him to do so unless the ‘Easdale’ cleared out; that the master of the ‘Dunlossit’ repeatedly asked the master of the ‘Easdale’ to clear out; that it was impossible for the master of the ‘Easdale’ to move his steamer so as to enable the ‘Dunlossit’ to leave without the ‘Easdale’ herself going to sea; that it was impossible for the ‘Easdale’ to go to sea with safety to life and property on board owing to two of the crew having refused to go out on account of the gale, and the remaining crew not being sufficient to man the ship in the existing state of the sea and weather; that the master of the ‘Easdale’ declined to go out; that during the night and morning the master of the ‘Dunlossit’ repeatedly threatened to the master of the ‘Easdale’ to cut the moorings of that vessel; that shortly after eight a.m. on 18th November the master of the ‘Dunlossit’ cut the moorings of the ‘Easdale,’ the men on board hastily left, and the ‘Easdale’ drifted to sea with no one on board, and was driven on shore and suffered damage; that at the time when the moorings were cut the ‘Dunlossit’ was suffering damage from the contact of the ‘Easdale,’ and was in serious peril of further damage owing to contact with the ‘Easdale’ and the steamer on her inner side, and also to the possibility of another vessel moored in front of her coming into collision with her; that the master of the ‘Dunlossit’ in cutting the moorings of the ‘Easdale’ acted without any consent or authority from anyone representing the ‘Easdale,’ and in the knowledge that by cutting her moorings he exposed her to the certainty of her being driven out to sea, and to the probability of serious damage; that the master of the ‘Dunlossit’ so acted solely for the protection of the ‘Dunlossit’ against present and possible damage: Find in law that in so cutting the moorings of the ‘Easdale’ the master of the ‘Dunlossit’ made the defenders liable for the damage resulting to the ‘Easdale:’ Find the defenders liable in expenses in both Courts, and remit to the Auditor to tax the same, and to report to the Sheriff of Lanarkshire: On the motion of both parties, remit to the Sheriff of Lanarkshire to ascertain the amount of damage, and to proceed in the cause as shall be just, and authorise him to decern for the taxed amount of the expenses for which the defenders are hereby found liable.”
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Counsel for Pursuer and Appellant— Ure— A. S. D. Thomson. Agents— Morton, Smart, & Macdonald, W.S.
Counsel for Defenders and Respondents— Dickson— Salvesen. Agents— Ronald & Ritchie, S.S.C.