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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carse v. North British Steam Packet Co. [1895] ScotLR 32_418 (12 March 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0418.html
Cite as: [1895] ScotLR 32_418, [1895] SLR 32_418
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SCOTTISH_SLR_Court_of_Session
Page: 418↓
Court of Session Outer House First Division.
Lord Wellwood, Ordinary.
v.
Facts:
Sub-section (f) of article 10 of the Regulations for preventing Collisions at Sea, 1884, provides that “every fishing vessel, and every open boat, when at anchor between sunset and sunrise, shall exhibit a white light visible all round the horizon at a distance of at least one mile.”
This regulation does not apply to boats propelled solely by oars.
A small rowing boat while lying at anchor one night after sunset in the Firth of Clyde was run down by a steamer. There were several men on board engaged in fishing, of whom one was drowned. His widow brought an action against the owners of the steamer. The case was sent to trial by jury. It was admitted that the boat carried no light, but there was evidence that the night was sufficiently clear to have enabled the steamer to avoid the collision had a good look-out been kept on board. There was also evidence that the boat had anchored in the fair-way between two piers. The judge directed the jury that the Regulations above quoted did not apply to the boat in question. The jury found for the pursuer.
The defenders excepted to the direction of the judge, and also moved for a new trial on the ground that the verdict was contrary to the evidence.
Held (1) that the direction given by the judge was right; and (2) that the verdict was not contrary to the evidence, in respect that, although the boat was in fault in anchoring where it did without showing a light, the direct cause of the accident was the failure of those on board the steamer to keep a good look-out.
On 15th July 1893 William Carse, china merchant, Greenock, accompanied by two friends, hired a small rowing boat without masts, and about nine o'clock in the evening proceeded to the fishing ground east of the pier at Dunoon. They anchored their boat and proceeded to fish. While they were engaged in fishing at about twenty-five minutes to eleven the s.s. “Guy Mannering,” belonging to the North British Steam Packet Company, on its way from Kirn to Dunoon Pier, ran down and sank the boat. William Carse was struck by the paddle float and killed. His widow raised this action on her own behalf, and as guardian of her four children, against the North British Steam Packet Company, for payment of £2000 as damages for his death.
The pursuer averred that the accident had been caused by the failure to keep a sufficiently good look-out on board the “Guy Mannering,” and that there had been gross carelessness on the part of the captain and those in charge. She admitted that the boat had carried no light, but averred that it was not usual or necessary for a boat of the kind in question to do so.
The defenders denied that a good lookout had not been kept, and averred “that the boat was anchored in the usual track of steamers,” and that “the accident was solely due to the culpable and reckless conduct of the deceased and his companions in anchoring in the fairway, and negligently failing to show the light required by the Regulations for Preventing Collisions at Sea. Apart from the Regulations
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a light was required as a reasonable and proper precaution to avoid danger.” They pleaded, inter alia—“(3) The accident having been caused, or at least materially contributed to, by the negligence of the deceased William Carse, the defenders should be assoilzied.”
Sub-section (f) of article 10 of the Regulations for Preventing Collisions at Sea, 1884, provides that “Every fishing vessel and every open boat when at anchor between sunset and sunrise shall exhibit a white light visible all round the horizon at a distance of at least one mile.”
The case was sent to trial by jury on the following issue—“Whether on or about the 15th July 1893, at or about 10·30 p.m., the pursuer's husband the late William Carse, china merchant in Greenock, while engaged in fishing in a small boat anchored near Dunoon Pier, was killed through the fault of the defenders, to the loss, injury, and damage of the pursuer.”
The pursuer led evidence to show that, if a good look-out had been kept on board the steamer, the boat could have been seen in time to avoid a collision. Two witnesses, who had been passengers on board the steamer at the time of the accident, gave evidence to this effect, and said that they themselves had seen the boat for some time before the steamer came near it.
The defenders led evidence showing that the boat had anchored in the usual track for steamers plying between Kirn and Dunoon piers.
Counsel for the defenders moved the Judge to give the following directions to the jury:—“1. That the boat in which the deceased was, and which came into collision with the defenders' steamer was an ‘open boat’ within the meaning of the Regulations for the Prevention of Collisions at Sea, 1884, Art. 10 ( f), and ought when at anchor, at the time of the said collision, being between sunset and sunrise, to have exhibited a white light in terms of said Regulations. 2. That, it being admitted that the said boat was not exhibiting a white light at the time of the collision with the defenders' steamer, the jury are bound to find for the defenders, unless the jury are satisfied upon the evidence that the absence of such light could by no possibility have contributed to the collision. 3. That, even if the jury are of opinion that there was fault on the part of the defenders, the pursuers are not entitled to a verdict, in respect that, in breach of said Regulations, the said boat, which was in charge of the deceased William Carse, failed to exhibit a white light, unless the jury are satisfied on the evidence that the absence of said light did not contribute to the said collision.”
Lord Wellwood refused to give the directions asked, and directed the jury that the said regulation did not apply to the boat in question, but that they were entitled, apart from the regulation, to consider whether the deceased should not, in the circumstances, as a reasonable precaution, have exhibited a light on board the boat, and whether his failure to do so caused, or materially contributed to, the collision which caused his death; that in the event of their so finding they were bound to find for the defenders, although they might think that the defenders were also in fault; but that, if they were satisfied that, notwithstanding negligence on the part of the deceased, the defenders, by keeping a proper look-out, and by the exercise of reasonable care, could have avoided the collision, they should find for the pursuer.
Counsel for the defenders excepted to the foresaid refusal, and also to the above directions, in so far as inconsistent with the directions which, on behalf of the defenders, he had asked the Judge to give.
The jury, with consent of the Lord Ordinary, read the following questions which they had put to themselves, with their answers, which sufficiently indicate the view taken by them of the evidence. “(1) Was the small boat moored in the track of the steamers?—Yes. (2) Were Mr Carse and his friends at fault in mooring in such a position?—The jury are of opinion that Mr Carse and his friends acted rashly in mooring where they did. (3) Was there enough light to enable those in charge of the steamer to detect the small boat if a sufficient look-out had been kept? —Yes, but the jury consider that the man selected as outlook was inefficient.”
The jury returned a verdict for the pursuer, and fixed the damages at £300 for the widow, and £50 for each of the children.
The defenders presented a bill of exceptions. They also applied for and obtained a rule on the ground that the verdict was contrary to the evidence.
Argued for the defenders—(1) The verdict was against the weight of the evidence. (2) There had been sufficient contributory negligence proved, even according to the finding of the jury, to prevent the defenders from being liable in damages. This was an ordinary case of contributory negligence, where the conduct of both parties was the continuing cause of the accident. Accordingly it could not be brought under the principle of Davies v. Mann, November 4, 1842, 10 M. And W. 546. It was impossible to say that the want of lights did not contribute to the accident, and therefore this case was ruled by that of The Khedive, L. R., 5 App. Cases, p. 876; Spaight v. Tedcastle, March 7, 1881, L.R., 6 App. Cases, 217; approved in Cayzer, Irvine, & Company v. Carron Company, August 1, 1884, L.R., 9 App. Cases, 873, at p. 886. (3) On the bill of exceptions—The boat was an “open boat” within the meaning of the Regulations for the Prevention of Collisions at Sea, 1884, Art. 10 ( f).” It was not reasonable that the Interpretation Clause defining “ship” in the Act of 1854 (17 and 18 Vict. c. 104), sec. 2, should be held to limit the operation of subsequent Acts, the regulations in which clearly applied to open boats. Sec. 17, being the penal clause of the Act of 1873 (36 and 37 Vict. cap. 85), spoke of “ships.” but the term as used there applied to all vessels specified in the Regulations, of which vessels this was one. So, too, sec. 25 of the 1862 Act (25 and 26 Vict. cap. 63), applied to boats of
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this class. The objection that these boats were not examined by Board of Trade surveyors, and were therefore not included in the Regulations, would apply equally to yachts, which it was not customary to examine, but which were indisputably bound to carry lights. The case of the “ C.S. Butler” was distinguishable from this, because there the boat in question was a lighter which had never left the Thames, while this was a boat which might, and as a matter of fact did go to sea. Accordingly the Lord Ordinary had been wrong in saying that the regulation did not apply to this boat. Argued for the pursuer—(1) The verdict was not contrary to the weight of evidence. It would have to be grossly so in order to be set aside —Metropolitan Railway Company v. Wright, April 6, 1886, L.R., 11 App. Cas. 152. (2) This case fell within the principle of Davies v. Mann. It was clearly the duty of the steamer to steer clear of the boat, which at worst was only in the same position as a man walking along the middle of a road. Even if there had been contributory negligence on the part of those in the boat, the defenders might by reasonable care have avoided the accident, and were therefore liable. The absence of the light had not contributed to the accident, and the defenders accordingly could not escape on that ground —Morrison v. General Steam Navigation Company, April 23, 1853, 8 Ex. 733. (3) The Regulations did not apply to small boats such as this, and the direction of the Lord Ordinary to that effect was quite right. The Definition Clause of the 1854 Act, sec. 2, expressly excluded them, speaking of ships as “every description of vessel used in navigation, not propelled by oars.” In the Act of 1862 and its regulations as to lights, the language of the 1854 Act was maintained. Thus sec. 27 spoke of the duty of “masters of ships” to take notice of the Regulations, and the word “ship” in that Act had special reference to the definition clause in the 1854 Act. Thus also sec. 17, the penal clause of the 1873 Act, spoke of “ships” infringing the Regulations. Accordingly, if the Merchant Shipping Acts were read along with these regulations, this boat was evidently excluded from their scope. There was no authority for including boats like this, and much authority against it—“ C. S. Butler,” August 6, 1874, L.R., 4 Ad. And Ecc. 238, where a lighter of 60 tons was held not to be bound to carry lights—“ Owen Wallis,” January 23, 1874, L.R., 4 Ad. And Ecc. 175; Ex parte Fergus—son, L.R., 6 Q.B. 280, at p. 291; European and Australian Royal Mail Company v. Peninsular and Oriental Steamship Company, January 4, 1866, 14 L.T. (N.S.) 704.
At advising—
But while, therefore, prima facie this rule might be applicable, the question whether it is applicable to an open boat, which admittedly has oars as its only means of propulsion, is a question depending upon a consideration of the statute which authorises these Regulations and of the Regulations themselves. It has been contended to us by the pursuer that the word “open boat” must be construed with reference to a certain limitation which runs through the two statutes which are now to be read as one, viz., the Merchant Shipping Act of 1854, and the Merchant Shipping Act of 1862, and the subsidiary rules which derive their force from the latter. After hearing the argument I have come to be satisfied that the pursuer is right. In the first place it is section 25 of the Merchant Shipping Act of 1862 which authorises these Regulations; and the Regulations, when we turn to them, most plainly import a certain relation between one another, and particularly between article 10 and article 6 which precedes it, because article 10 in the initial part or first half—which must have the same extension as the second half—imports an exemption from the obligation which is contained in article 6 — an exemption which implies that but for the exemption the rule would have effect.
Now, we have a rule which in terms is applicable to a sailing ship, and accordingly it must be plain that, for the purposes of this section, the open boats which are exempted are open boats which would have been hit by article 6, and hit because they are described by ships. Well, then, when we turn to the interpretation clause, which is made common to the Act of 1854 and the Act of 1862, we find that it limits the operation of the Act to such vessels as are not propelled by oars. It seems to me, therefore, that so far as the first part of article 10 is concerned, it is made plain that the word “open boats” is to be used in the sense in which the Act brings them under the word “ship;” and that is, that they must have the common characteristic of those ships which alone are dealt with by the Act, viz., that they are not propelled by oars.
Then when we turn to the second part of article 10, which is that under which the present question primarily arises, I find that the phraseology is just the same as in the first part; and accordingly I cannot resist the argument that the same limitation
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And that view is greatly confirmed by two considerations. I have referred to section 25 of the Act of 1862 as that which points out the regulations which are to be observed; but the relative section which compels obedience to these regulations under a penalty is not section 25 but section 27, and there the persons who are put under obligation, and under penalty in the case of default are “all owners and masters of ships.” Now, it is quite plain that there the statutory word “ship” is used in the statutory sense, and it cannot, I think, be maintained that the Legislature passed, as a brutum fulmen, the code which is found in the Regulations, but compelled obedience only from a certain class of the persons who were directed to fulfil them. That is the result of the argument on the side of the defenders, because section 27 unquestionably does not cover the master of an open boat which is propelled by oars; and the result would be that the enactment would be nugatory so far as this class is concerned. It seems to me that the reconciliation of the two is to be found by recognising the limitation which is common to both, and which is derived from the word “ship” having a standard meaning— the original definition in the Act of 1854. The other consideration to which I referred is to be found in the 17th section of the Act of 1873. That is a penal clause which makes it extremely difficult for anyone in default in the matter of these Regulations to escape civil consequences. Now, it has not been suggested that, if the rule applies to open boats which are propelled by oars, there is any reason, or any evidence of an intention, to treat them more lightly than other defaulters; and yet again, apparently of set purpose, the phraseology used is “ship.” The word “ship” under the Act amending the Merchant Shipping Act suffers the limitation common to the two preceding Acts of 1854 and 1862; and that is, that it applies to ships which are not propelled by oars.
Therefore I have come to be satisfied that the bill of exceptions is wrong, that the Judge's direction was right, and that we must act accordingly. If the Regulations do not apply, then the first, second, and third questions all fall to the ground.
But then we are also moved to make an absolute rule to set aside this verdict as contrary to evidence. In this matter, we are aided in ascertaining the views of the jury by certain statements which they made to the learned Judge who presided, as to their opinion upon certain questions which they had put to themselves. It appears from these that the jury were of opinion that the outlook on board the steamer was inefficient; and we have to read that in connection with what after all is the verdict which we are concerned with, to see whether it is right or not. They affirmed the proposition that the accident was caused by the fault of the defenders, and that the fault is an inefficient outlook.
Now, considering, first of all, the conduct of the steamer, I think that the evidence as it stands is such as fairly supports that conclusion. There are two witnesses among the passengers on board the steamer who give evidence, which if it were believed by the jury, led directly to the conclusion that the outlook was inefficient. Two men, whose testimony is really, I think, not substantially shaken on cross-examination, asserted that they, looking in front of them on the night in question, saw this boat when the steamer was at a considerable distance from it, that they saw it from that time up to the moment of the collision, that the time which elapsed was such that the boat might have been saved; and they had a strong opinion as to the conduct of the persons on board who did not secure the safety of the boat. Now, it seems to me that the prima facie cause of the accident was the want of an efficient look-out. But then the man who professed to keep a look-out was put into the witness—box, and it is enough to say that his evidence, as reported in the notes taken at the trial, very well justified the jury in coming to the conclusion, from his conduct, by the way he answered the questions, and, very possibly also, from the look of him, that he was not an efficient look-out. Putting these two things together it seems to me to be a sufficient conclusion that the view of the jury was that there was no sufficient look-out—practically no look-out; and that if there had been a look-out, as testified by those two witnesses, this boat might have been saved. Again, I think it is quite clear, from other evidence in the case, that the diversion of the steamer so as to save the boat would not have been an extraordinary manœuvre at all, but, on the contrary, would have been the simplest and most plain-sailing manoeuvre. Therefore, when I look at the matter, without examining with any minuteness the various pieces of evidence which the Court have had put before them, I think there was enough to justify the jury in saying that this boat was run down, and this man lost his life, because the steamer was not keeping a lookout, and that, if it had kept a look-out, with ordinary care and prudence the accident would have been avoided. Now, apart from the position of the boat itself, that would completely sustain the finding of the jury. But let us see what there is in the action of the party in the boat to avert the consequences of the steamboat's carelessness. The facts are these, that, in the course of the evening and sometime before this accident took place, these gentlemen had gone out in their boat for the purpose of fishing, had moored it at a particular place, and were engaged in fishing. They had moored it with the anchor. As I have said, that was some time before the steamer came down upon them. It is shown that the boat was at anchor, and that it could not at the first sight of danger move out of its place; it was a matter of more or less time to extricate it from that position. Now, it seems to me that these facts show that the direct cause of the accident was not the boat being in
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I am for refusing the bill of exceptions and discharging the rule previously granted.
Upon the other question I agree with your Lordship and have very little to say. The question put to the jury was whether the accident happened through the fault of the defenders. Now, on this particular question, in this boat Mr Carse and his friends had gone out on this summer night and they had anchored the boat in the fairway of the river so to say. They had gone without any lights; and the jury, the question having arisen, very properly came to the conclusion that in doing so Mr Carse and his friends had acted rashly. Now, Mr Carse and his friends preferred to anchor there, but I am far from thinking that because a person may anchor rashly—it may be in the fairway of a channel—any other boat has a right to run them down with impunity. I do not think that is so; I would be very slow to affirm such a proposition as that. On the other hand, I think that people who had put themselves in such a position are bound to take ordinary care of themselves, and if, through the fault of another, they suffer injury, that does not dispense with their duty of taking ordinary care of themselves. That was the sort of case, it seems to me, that was raised in this case. Now, looking at it in that light it humbly appears to me that the true view which the jury came to was this—there was this boat, anchored no doubt in this place, which was attended with some danger; we think it should not have been there; but on the other hand, here was a steamer coming down on a night which, on the evidence, the jury evidently took to be a very clear night, on which they could see perfectly well, and with the observance of ordinary care and the most ordinary outlook could have avoided and should have avoided this collision. Now, if that be so I should think they were bound to avoid it. On the other hand, there was a duty laid upon those people who had put themselves in this position to get out of that dangerous place if they could. It is obvious upon the evidence that they were in a position from which they could not extricate themselves, because they were anchored there. Now, I think it would have been contributory negligence if these people had been there, being free to remove, and had deliberately remained in that place, and had been deliberately run down without the least exertion on their part. But the jury were apparently satisfied upon the facts proved that the act complained of was in their view, as I think, solely attributable to the steamer. I therefore think we should not disturb the verdict.
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Now, that being the result of my consideration of the first part of the 10th article, it follows that the same words are used in the subsequent part of the article in the same sense to describe the class of boats that are to exhibit a white light at anchor, and that no boat can be held to fall within that provision except those that are enumerated in the commencement of the article, and which are boats of such a size and so fitted with sails as to be able to proceed to sea. I have no doubt from the contents of article 10, that fishing vessels—I mean vessels that carry on the trade of fishing—were those primarily in view of the Legislature in giving statutory effect to those Regulations.
On the question of the motion for a new trial on which we have called for argument I shall say very little. The chief interest of the case is that an argument is raised as to the extension of the limits of application of that rule of liability which is illustrated by the cases of Davis v. Mann and Radley v. London and North-Western Railway Company. of course it would be easy to state that principle with such generality as to cover all cases of injury to life and property consequent upon collision, and if we should accept the rule in the general terms contended for, I am afraid it would go very near to abrogating altogether the rule of law which disentitles a pursuer to damages when he is shown to have been guilty of contributory negligence. But we must consider that rule with reference to the class of cases in which it has been applied; and they seem all to contain this element in common, that the negligence which is alleged to be contributory—the negligence of the plaintiff or pursuer—is something which has been done by him in advance, and which makes him less able to avoid the collision. Either it is the case of the ass which has only power to move within the length of its tether; or again the case of the railway trucks which are put in a siding, and which even though in charge of a man cannot be got out of the way in sufficient time to avert a collision; or again, as in the present case, where a boat is at anchor, and when a collision is imminent, the persons who are navigating the boat are unable to get the anchor up in time to move out of the way. Now, in this class of cases there is certainly a moral duty incumbent upon the other party to do what he can by going out of the way to avoid a collision; that moral duty seems to be the foundation of the legal rule, and the Judges have acted upon it.
I may refer in this connection to the bill of exceptions. The presiding Judge gave a direction on this subject which is not excepted to (except in so far as bearing on the other exception), in which his Lordship—as I think quite rightly—lays down that in the state of circumstances, which apparently the jury has held to be proved, the antecedent negligence of the pursuer is not contributory negligence, because the Judge puts the facts and says that is not contributory negligence on a state of the facts which might otherwise entitle the pursuer to claim a verdict. But I should desire to reserve my opinion as to the possible extension of this principle to every case, other than those of the class to which it has hitherto been applied. In the present case I think the jury were entitled to hold that although there had been originally fault on the part of the persons navigating the boat—and no one can dispute that it was a rash and dangerous thing for a boat to anchor in the fair-way without a light—yet as it was not in the power of the people in the boat to retrieve their error when collision became imminent, the responsibility for the accident lay upon the steamship. of course the jury must have held that there had been an omission to keep a proper look-out, because if, in point of fact, the boat was not seen then there would be no negligence. But it appears to me after reading the evidence that there was sufficient material in the evidence to enable the jury to hold (1) that a proper look-out was not kept; and (2) that if their look-out had been good, there was sufficient light at eleven o'clock on that night in July to enable the look-out man, or the master of the steamer, to see the boat, and by deviating its course to avoid a collision. I am therefore of opinion with your Lordships that the rule should be discharged.
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On the question of fact as to whether the verdict is justified by the evidence I also agree with all your Lordships. It appears to me that the evidence raised a very proper question for the consideration of the jury. In considering the discussion of the rule for a new trial we have the advantage not only of their verdict, but of the specific answers which the jury have given to certain questions which they put to themselves, and which were read when they returned their verdict. These answers did not exhaust the issues, and did not even exhaust the opinion of the jury upon the questions of fact which were committed to them; and accordingly the Judge did not accept them as a special verdict, but required the jury to give a general verdict on the issues. They found in the first place, that the gentleman who lost his life acted rashly in mooring the open boat in the track of the steamer; and, in the second place, they found that the steamer did not keep an efficient lookout. But they did not find whether one or other of those two faults—for both of these acts are in one sense faults—was the cause of the accident, or whether they both contributed to the accident. Therefore, in order to find their opinion upon that vital question we must go to their general verdict in which they find for the pursuer. Now, the question is whether the evidence which justified them in giving those two specific answers to the questions they themselves had stated is or is not consistent with the verdict which they ultitimately gave. I agree with all your Lordships that it is quite consistent with their verdict, because, although an open boat may be anchored in the way of a steamer, and although the boat may have acted very rashly indeed in putting itself in that position, still the steamer is not entitled to run down the boat. Therefore, if it appear that the loss of the boat is to be attributed either to reckless navigation on the part of the steamer, which, although it observed the boat, took no pains to avoid running it down, or to such negligence in keeping a look-out as a jury is entitled to say is blameable on the part of those in charge of a steamer navigating such waters as the Clyde, where they are perfectly well aware that there are numbers of open boats constantly either crossing their bows or lying in their way—then the jury find that the cause of the accident—the direct cause of the accident—is the negligence of the steamer rather than the antecedent rashness of those on board the boat. I therefore agree with your Lordships that the jury have been properly directed upon that question, because no exception whatever is taken to the law laid down by the Judge, and that their verdict is one with which we are not entitled to interfere.
In regard to the other point there was a very great conflict of evidence, but I left that matter entirely to the jury, subject to the directions which I gave them. I think that there was a body of evidence which, if they believed it, entitled the jury to hold that the persons in charge of the defenders' vessel, the “Guy Mannering,” could have seen and should have seen this little boat at the distance of two or three hundred yards, and in ample time to have avoided running it down. By their verdict they evidently took that view. Then, in regard to the fault or negligence on the part of the persons in charge of the boat, I explained to the jury that they must be satisfied, in order to enable the pursuer to get the benefit of the last direction which I gave them, that any fault on the part of those
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No doubt the captains of these vessels say that they did not see the boat although they were close upon it and very nearly ran it down. But I do not think the jury can have taken that view; because, if they believed the evidence of the captains of those two vessels, the “Mercury” and the “Marchioness of Breadalbane,” they would not have formed the opinion that those in charge of the “Guy Mannering” should have seen the boat at a distance of two or three hundred yards. In the view of these facts I think there was evidence, if the jury believed it, to entitle them to hold that this boat had been moored there, unable to get away in a hurry, for some time before, and that other vessels had been able to pass it in perfect safety, thus inducing the belief in the minds of those in the boat that they were in safety in remaining where they were in the state of the light. I therefore agree that the exceptions should be disallowed and the rule discharged.
The Court disallowed the bill of exceptions for the defenders, and discharged the rule.
Counsel for the Pursuer— Salvesen— Blair. Agent— A. C. D. Vert, S.S.C.
Counsel for the Defenders— A. Jameson— Grierson. Agents— J. & J. Ross, W.S.