Scottish Court of Session Decisions

Lord Chancellor (Herschell)—This is an appeal from an interlocutor of the Second Division of the Court of Session. The Lord Ordinary found that both the “Otto” and the “Thorsa” were to blame for a collison by which the “Otto” was sunk. The Inner House, reversing this judgment, held that the “Otto” alone was to blame, and that the “Thorsa” was not to blame. No attempt has been made to impeach the finding of the Court below with regard to the “Otto,” and indeed any such attempt would have been useless, because it is perfectly clear that the “Otto” was very seriously to blame.

The vessels were proceeding upon, generally speaking, opposite courses, the one up and the other down. The “Otto” had left her pilot at Elsinore and was proceeding towards the Lappegrund lightship. Shortly before the time with which your Lordships have to deal, a vessel called the “James Malam,” which was coming in the same direction as the “Otto” and had passed her, also passed the “Thorsa.” Those two vessels passed starboard to starboard. After a manoeuvre by the “Thorsa” had been executed for the purpose of passing clear of the “James Malam” the view taken by the Lord Ordinary and by the Inner House is that the two vessels, the “Thorsa” and the “Otto,” were end-on or nearly end-on. The “Thorsa” blew one blast in order to indicate to the “Otto” that she was going to the starboard. She ported her helm in accordance with the indication which she had given by her whistle; and there seems to be no question that the sound of her whistle was heard on board the “Otto.” There is some doubt as to whether the “Otto” at that time had ceased starboarding (she undoubtedly had been starboarding) and was keeping a steady course, or whether she was altering her course. It is not necessary to determine that question. According to the account of the master of the “Otto,” she was keeping a steady course.

The “Thorsa,” observing that the “Otto” was coming towards her and was not executing the corresponding manoeuvre which the master of the “Thorsa” had been led to expect she would execute, blew the whistle again and again ported. Almost immediately afterwards the “Otto” hard-a-starboarded, coming across the “Thorsa.” It is not disputed that as soon as that manoeuvre was observed the master of the “Thorsa” directed that her engines should be stopped and reversed, and that his order was obeyed; and no complaint is made of the conduct of the master of the “Thorsa” in not stopping and reversing earlier than he did after the hard—a—starboarding manoeuvre was observed. But it is said (and this is the only case now made against the “Thorsa”) that she ought to have stopped and reversed at an earlier period; that when, at some time betwen the first whistle and the second, the master of the “Thorsa” saw that the “Otto” was not so manœuvring as to bring her port-side to port-side, it ought to have been seen then that there was a risk of collision, and that accordingly then the master of the “Thorsa” ought to have stopped and reversed.

Now, it is by no means clear upon the evidence that, supposing the two vessels had kept their courses after the first whistle, and that last manoeuvre the hard-a-starboarding of the “Otto” had never taken place, the two vessels under those circumstances would not have passed each other without collision or danger. That they would have done so is stated by the master of the “Thorsa.” Sir Walter Phillimore on behalf of the appellants suggests that they would have passed very close to one another, that it would have been a very fine thing, and that it would have been doubtful whether they would have passed clear. But it appears to me that the case of the “Thorsa” does not rest and ought not to be rested solely upon the question thus put. The master of the “Thorsa” a second time gave a signal to the “Otto” that he was intending to go to the starboard. Now, it is not denied that the vessels were able to see one another. They were manœuvring with the knowledge as far as vessels ever can have it of what was going on in the meantime; and if the story of the “Thorsa” which has been practically accepted by the Court below is anything like correct, namely, that the two vessels supposing their courses had not been changed would have passed clear although it might have been a near thing—it is obvious that under those circumstances, if the “Otto” had taken the step she ought instead of starboarding when she got that second signal, there would have been no collision whatsoever.

Now, under the circumstances which existed, it appears to me that the master of the “Thorsa” was justified in giving that second signal before taking any other step, and that he was justified in porting after giving that second signal to see whether the master of the “Otto” would not manoeuvre in the manner in which proper navigation demanded that he should. Considering that it is by no means clear that the two vessels would not have passed each other with perfect safety if they had kept their courses, the master of the “Thorsa” was not bound to stop and reverse, but had a right to see whether the master of the “Otto” was going to manoeuvre as he ought to have done. As soon as he saw that the “Otto” had starboarded he stopped and reversed. It appears to me certain that in this case the rule which has been relied upon by the learned counsel for the appellants has not been violated by the “Thorsa,” and that she is consequently not to blame. I certainly do not desire to countenance the idea that a vessel is entitled to run the matter very fine and to go on until the last moment before stopping and reversing; but in the present case

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