Scottish Court of Session Decisions

On 1st April 1896 Burrell & Son, shipowners, Glasgow, raised an action of damages against Russell &Company, shipbuilders, Port Glasgow, concluding for payment of £10,000.

The pursuers averred that in June 1893 the defenders contracted with them to build four steamers—the “Strathtay,” “Strathairly,” “Strathgarry,” and “Strathgyle,” the two former being the smaller, and the two latter the larger. The contract price was £39,000 for each of the smaller vessels, and £43,500 for each of the larger “It was an implied term of the said contract, and in accordance with the universal practice of the shipping and shipbuilding trades, as was well known to the defenders, that the said vessels should all be constructed with straight keels, the straight keel being the only form which is proper and appropriate to vessels of the class specified. The draught of the vessels when completed, if built in accordance with the contract, was a mere matter of calculation, and necessarily followed from the dimensions specified in the offer and accepted by the defenders as above mentioned.”

On 4th October 1893 the defenders requested the pursuers to agree to an increase in the coefficient of fineness of the two larger steamers. “This proposed alteration of the coefficient the pursuers reluctantly agreed to on 11th October 1893, but no other alteration was made on the original contract between the parties, and the pursuers believed that the steamers were all being built in terms of said contract as so modified, and in that belief took delivery of them as after mentioned.”

The pursuers took delivery of all the vessels, and after the lapse of some time they were surveyed and examined in dock. “As the result of said surveys it was ascertained, and it is the fact, that all the steamers had, in violation of the contract, been built with a cambered or arched keel.” Certain other deviations from the specification embodied in the contract were averred by the pursuers, who continued—“In each and all of these respects each of the said four steamers was disconform to contract, and in consequence of the said disconformity of said steamers to contract, and of the defenders' breach of contract with regard to said vessels, the pursuers have sustained and will sustain great loss and damage.” “(Cond. 7) The camber in the keel of each of said vessels (which was an unlawful, unauthorised, and most injurious device, resorted to, the pursuers believe, with the view of thereby increasing the dead-weight carrying capacity of the vessels), was in breach of the contract between the parties, and rendered the vessels liable to be strained and otherwise injured in being docked, and added materially to the expense of docking. In consequence of said camber it became necessary to fit a false keel to each of said vessels so as to give them each a straight keel, and such a keel has been fitted to each of the ‘Strathgarry,’ the ‘Strathgyle,’ and the ‘Strathairly,’ and the ‘Strathtay is about to be simdarly fitted with a false keel. Further, said vessels the ‘Strathgyle’ and the ‘Strathairly’ were, while having said surveys made and getting said false keels fitted, thereby detained, and the ‘Strathtay’ will in like manner be detained each for a lengthened period, and thus prevented from earning freight, or being otherwise utilised by the pursuer's, and the defender's have in consequence incurred liability to the pursuers for the cost of fitting said false keels and for the demurrage or damages for detention of said vessels while having said keels fitted.” “(Cond. 10) The selling value of said vessels is greatly less than it would have been had the defenders constructed them in terms of the contract between them and the pursuers, said depreciation being directly due to the foresaid disadvantages arising from the defender's failure to fulfil their contract in the particulars above libelled.”

The defenders denied that it was an implied term of the contract that the vessels should be constructed with straight keels. “The pursuers took delivery of the steamers in full knowledge of the fact that they had been constructed with cambered keels, of their draught, and of their coefficient, and so took delivery without objection or reservation.” “(Ans. 6) Admitted that the steamers were built with cambered keels. Quoad ultra denied. The said steamers were built with cambers, as is matter of common practice, and were so built at the sight and to the instructions of the pursuers, and in particular of their overlooker Mr James C. Stewart, to whom they entrusted the preparation of the specification for said ships, and the whole superintendence of their construction. The camber in the smaller ships was about 4 inches, and in the larger rather more. The cambers taken by the pursuers in 1897 were not properly taken, and the cambers mentioned do not truly represent the cambers of the vessels at the dates when same were taken.” The defenders further denied the averments contained in arts. 7 and 10.

The pursuers pleaded, inter alia—“(1) The defenders having failed to implement their obligations under the contract between them and the pursuers as condescended on, and the pursuers thus having suffered loss and damage to the extent of the sum sued for, the pursuers are entitled to decree in terms of the conclusions of the summons.”

The defenders pleaded, inter alia—“(4) The pursuers are barred from making the present claim in respect the said vessels were constructed under their supervision, and they took delivery thereof without objection, in full knowledge of the points of construction of which they now complain.”

Proof having been led at great length, the Lord Ordinary (Low), on 30th October 1897, assoilzied the defenders.

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Opinion.—… . “The pursuers claim damages to the amount of £40,000 from the defenders on the ground that all of the ships are disconform to contract in the following respects:—

(1) The keels, instead of being straight, are cambered—that is to say, the keels are arched, being higher amidships than at stem and stern. The result is that the draught of the ships is increased, and that the operation of docking is made more troublesome and expensive, because unless the blocks upon which the vessel is placed are specially prepared with a curve corresponding to the camber of the keel, the vessel is strained and twisted. In order to avoid the expense and risk of docking ships with cambered keels, the pursuers have at large expense put false Keels upon the ships, so as to fill up the camber and make the keels practically straight.

(2) In the second place, the pursuers allege that the coefficient of fineness which was stipulated for has been exceeded as regards all the vessels, with the result that they require a larger consumption of coal to drive them through the water at a given rate of speed.

(3) In the third place, the pursuers aver that the depth of all the vessels is in excess of the contract depth. The result is that the ships draw a great deal more water than they ought to have done, and are thereby excluded from a number of ports which would otherwise have been open to them.

The position taken up by the defenders is this—

(1) They admit that the keels of the vessels are cambered, but they allege they were so built by the instructions of Mr Stewart, the superintendent engineer of the pursuers, with the knowledge and approval of the pursuers.

(2) The defenders deny that the contract coefficient of fineness has been exceeded in any of the vessels.

(3) The defenders admit that the vessels were made deeper than they ought to have been in terms of the contract. They allege, however, that the pursuers knew what the draught of the vessels was, and that they took delivery without protest or reservation of any claim.

I shall deal with these grounds of claim in the order in which I have stated them.

I. The first and most important question is whether the keels were or were not cambered by the instructions of the pursuers? I am sorry to say that upon that question there is a conflict of evidence which leaves no room for doubt that upon the one side or the other there has been deliberate falsehood.

Before dealing with the evidence I may explain that it is common enough to lay the keels of steel vessels with a camber. That has long been done in the case of sailing ships, and in recent years the course has also been frequently followed in the construction of steamers. The object, however, is not to supply a ship which will have a keel permanently cambered, but a keel which will become straight. It was found that steel ships were to a certain extent flexible, and that if the keel was laid straight the weight amidships when the vessel was loaded caused the keel to sag or bulge. That was especially the case in sailing ships, which have not so many bulkheads as steam ships. To avoid sagging the keel is laid with a slight upward curve, so that the weight of the cargo, instead of causing the keel to sag or bulge, simply presses it straight. When this method of construction is followed, the whole materials of which the ship is composed are designed and prepared upon the assumption that she will have a straight keel. The camber is not given by building the ship deeper at the ends than she would have been if the keel had been straight, but simply by building the ship from keel to deck very slightly upon a curve.

That is the method of construction which the defenders say that they followed upon the pursuers' instructions.

The case made by the pursuers, on the other hand, is this. The defenders had, upon a specification of length, breadth, and depth supplied by the pursuers, guaranteed a certain carrying capacity on a certain coefficient of fineness. They found, however (the pursuers allege), that they had made a miscalculation and could not give the carrying capacity with the coefficient which they had fixed, They therefore adopted certain devices to increase the carrying capacity. They increased the moulded depth, they increased the coefficient, and in addition they lengthened the end bulkheads and built the vessels deeper at the ends than in the middle to the extent of some seven or eight inches.

Now, I think that the pursuers have made a formidable prima facie case against the defenders. In the first place it is proved, in my opinion, that the defenders' draughtsman did make a miscalculation in regard to the weight of the machinery, and that if the vessels had been built strictly according to contract there would have been some shortage of carrying capacity. In the second place, the defenders admit that they had never cambered the keel of a steamship before. The inference of course which the pursuers draw from these two facts is that the defenders cambered the keels for the purpose of increasing the carrying capacity. In the third place, if, as the defenders allege, the keel had simply been set up a few inches to prevent sagging, the probability founded upon experience is that the camber would have disappeared or been greatly diminished by the use which has been made of the ships. As matter of fact, however, the camber has in no way diminished, and may have increased. Finally, after the present action was brought the defenders altered the plans upon which the ships had been built. Their draughtsman — Hutchison — cut off and destroyed the parts of the plans upon which the end bulkheads appeared, and made new plans of these bulkheads. The pursuers naturally draw the inference that that was done to conceal the fact that the end bulkheads were made longer to the

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extent of the camber than they would have been if the vessels had been constructed as straight-keeled vessels. Further, the pursuers say that the assertion that they instructed the defenders to lay the keels with a camber is not only untrue, but absurd, because they had never had a vessel which was laid with a cambered keel, and had never heard of the practice of laying the keels in that way.

On the other hand, if the pursuers' case is true, then Mr Lithgow, the sole partner of the defenders' firm, has been guilty of the grossest fraud and perjury, and has been able to induce a number of persons, some in his employment, and some no longer in his employment, to give false evidence. Further, even assuming that Mr Lithgow was dishonest enough to adopt the device with which he is charged, the antecedent improbability of his doing so appears to me to be great. The amount of carrying capacity to be gained was not very great (I think considerably under 100 tons in a vessel of over 7000 tons), and the fraud would have been certain to have been found out, because, if a vessel was built with a rigid camber of six or eight inches, the first time it was docked it would be strained and buckled in a way which could not fail to attract attention, and lead to the detection of the fraud.

It is therefore necessary to examine the evidence with great care.

Mr Lithgow's evidence is that it was Stewart, the pursuers' superintendent engineer, who instructed him to lay the keels with a camber. He says that one day before the keel of the first vessel was laid, Stewart was at the office going over the plans with Hutchison, the draughtsman. Lithgow accidentally met Stewart and Hutchison in the passage, and his evidence as to what passed is as follows:—“Addressing Mr Stewart, I said, How are you getting on with the plans?’ and he said, ‘All right.’ Our stair goes down straight, and then there is a landing about six steps down. Mr Stewart went down a couple of steps while this conversation was going on, and when he got down to the Landing he stopped there, and said to me, ‘The Grays are laying our boats with cambered keels.’ I said, ‘What camber are they giving them?’ ‘Three or four inches,’ he said, ‘and I wish you to lay these boats down the same.’ I said, ‘What will we give them, Mr Stewart?’ and he said, ‘Give the small boats four inches and the big boats a little more.’ That is the conversation that passed, not word for word, but very near it. That must have been about the middle of September, shortly before the first keel was laid. My reason for fixing the date is that I immediately sent to Greenock for our foreman carpenter Mr Arnot. Our office is about a mile from the yard where the steamers were being built, and I sent for Mr Arnot and Mr Lambie to come up that day and get instructions, and I gave the instructions to Mr Taylor.’

The explanation of the reference to ‘Grays’ is that the pursuers were at the time having four steamers similar to those in question built by Messrs William Gray A Company of West Hartlepool, and as matter of fact Messrs Gray laid the keels of the steamers with a slight camber.

Lithgow's evidence in regard to the alleged conversation with Stewart is corroborated by Hutchison, who was with Stewart and heard what passed.

Staveley Taylor, the defenders' manager, gave the following evidence:—‘Before the eel of the first vessel was laid, I was told by Mr Lithgow that Mr Stewart had asked him to camber the keels of the vessels when they were laid down. He said Mr Stewart wished the keels of the smaller vessels cambered to the extent of four inches, and the larger ones rather more, about four and a-halt inches. He also mentioned that Stewart had told him that the Messrs Gray, West Hartlepool, who were building four vessels for them at the same time, were cambering their keels, or intending to camber them, three and a-half inches. I passed on the instructions to Mr Lambie, and I may have mentioned the matter to the foreman carpenter David Arnot as well.’

Lambie, the defenders' assistant manager, says that Taylor instructed him to lay the keels of the first two vessels with a camber of four inches, and the keels of the two larger vessels with a camber of four and a-half inches. He fixes the date when these instructions were given, by an entry in his note-book, as 28th August 1898.

David Arnot, who at the time was foreman shipwright with the defenders, but has now left their service, gave the following evidence:—‘Before laying the keel of the first ship, Mr Lithgow gave me instructions to lay the blocks straight, and then to camber them. He gave me these instructions in the Kingston office in his private room. He sent for me for the purpose… . I laid the blocks of No. 343 (i.e. the first vessel), and afterwards Mr Lambie came along with Mr Stewart and gave me instructions to raise them a little higher in the centre, as he thought we had not quite got the four inches. That was done. Mr Lambie told me to give the boats four inches of camber. Mr Stewart was with him at the time.’

Then several other witnesses speak to Stewart being anxious to have the keels cambered, and inspecting them while in course of construction.

Thus, Staveley Taylor, the manager, says that during the earlier stages of the construction of the ships he had a conversation with Stewart in the office at Port-Glasgow in regard to cambering the keels. He said, ‘He’ (Stewart) ‘impressed upon me to be very careful to maintain and keep up the camber. His reason for saying so was that Grays considered it most important. I asked him what camber Grays were giving, and he said 3J inches. I told him that we were giving quite that, and that we were giving them exactly what he had arranged for, and I promised that we would look after it… . The keels of the two smaller vessels were laid at the time when I had

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this conversation with Mr Stewart. Mr Stewart was very anxious about the camber being maintained.’

There is then the evidence of Bolton, who succeeded Arnot as foreman shipwright in November 1893, when three of the vessels were in course of construction. Bolton is no longer in the defenders' service, He gives the following account of a conversation which he had with Stewart in reference to the ‘Strathgarry.’ ‘Shortly after I entered the employment I had a conversation with Mr Stewart about the vessels. The conversation took place at the bow of No, 345, the ‘Strathgarry.’ I had been speaking to him about them working on the shin, and he went forward to the bow and asked me to come along with him and have a look at the keel. I went along to the bow with Fergusson and him, and he got up on the platform so that he could see along the keel. He then asked me to come up and look along the keel with him. I did not consider there was any room for two to go up where he was, and I did not think it necessary. I said, ‘There is no use of two good men going up there,’ and I did not go. He said, ‘Bolton, you are letting these keels come down in the centre.’ I made no reply, because the vessel was coming down. She came down to the extent of three-eighths of an inch or almost that. I said, ‘I know she has been coming down, but we will prevent her coming any further, and will bring her right to 4 1 2 inches.’ When he came down from the platform, he said, ‘What are you to do?’ I went amidships and showed him the vessel blocked up with double blocks for a length of 40 ft., so close that a small person could scarcely get through between them. He said, ‘Is that the method you have taken to keep it up?’ and I said ‘Yes, and I think it is a practical method.’ He said, ‘Will that do?’ I said, ‘I think it will; by slackening the blocks fore and aft and ramming them up in the middle, the vessel will come down to that extent, and we will sight her again and keep her right when she is that way.’ We afterwards brought her to that, and kept her to it—I mean 4 1 2 inches.’

The witnesses Lambie, Marshall, and Polonis also narrate incidents which, if true, show that Stewart was well aware that the keels were being laid with a camber.

Now, Stewart's evidence is, that not only did he give no instructions that the keels should be cambered, but that he never heard anything about cambering the keels, and was not aware that they were not laid straight—‘About the end of December 1893 I remember being at the defenders' yard along with Mr George Burrell. I had just come from West Hartlepool then. At this time the plating of the first of the smaller vessels was well advanced, and the other was nearly framed, and the keel of the first of the larger boats had been laid down. At the foot of the gangway of the first ship we met Mr Ferguson, our inspector, and while we were standing talking to him, Mr Lambie, principal foreman in the yard in which the ship was being built, joined us. He knew I had come from West Hartlepool, and he asked me “How are Gray's boats getting on?” I said they were getting on very well, “beating you hollow.” He then asked, “Are Gray's people keeping their boats up any in the bottom?” I said, “I asked Mr Purvis, Gray's under-manager, the same question, and he replied that the boat we were then looking at was being kept up an inch and a half in the bottom, nut she would be straight when finished.” That was the only reason Mr Purvis gave for keeping the bottom up, but I was aware the yard was new, and I naturally concluded it was to allow the ship to come down with her weight. In my opinion that would be a good enough reason for keeping up the bottom of the vessel 1 1 2in. The 1 1 2 in. would be amidships. I had told Mr George Burrell what had passed between me and Mr Purvis on our way down in the train. When the conversation I have mentioned with Mr Lambie took place, Mr George Burrell asked him, “Are you doing anything of that sort here?” and Mr Lambie replied “No, we do not require to do anything of that sort.” Keeping the vessel's bottom up an inch and a-half means that the keel, instead of being laid perfectly straight, has a little rise in the centre tapering away to the ends. A rise of 1 1 2 in. in the centre of the keel would, in my opinion, come out in the course of construction. They have often to take out some of the blocks which support the vessel in order to get the rivetting done, and as the hull is much heavier in the centre the vessel would naturally come down. The extra weight in the centre would bring the vessel down, and compensate for the 1 1 2 in. of rise, so that the ship when finished would have a perfectly straight keel. I never had any conversation with the defenders, or any of their representatives, at any other time as to the cambering of the keel. I never authorised any camber on the keel. I had no authority from the pursuers to do so… . Cross.—I have no recollection of meeting Mr Lithgow when I was going down from the drawing office. I do not remember him asking me how we were getting on with the plans. I have no recollection whatever of an interview with Mr Lithgow on the stair as I was going down from the drawing office. (Q) Do you remember having a conversation with him on one occasion in Mr Hutchison's presence, when he was standing on the landing above and you were just below at the staircase window?—(A) I do not remember ever having had a conversation with Mr Lithgow on the stair. (Q) Do you recollect of Mr Lithgow asking you, when you were in the position I have mentioned, how you were getting on with the plans, and you answering “Right enough,” and then adding “Grays are laying our boats with a camber, and I want you to do the same?“—(A) I certainly say such an interview never took place. Mr Lithgow never asked me what camber the Grays were giving their boats, and I never answered that they were

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giving 3 or 4 inches. I have no recollection of Mr Lithgow then saying “What will we give them?” I did not say in reply “Four inches for the smaller steamers, and the big ones a little more.” No such conversation ever took place. I never spoke to Mr Lithgow about the setting up of the keels of the boats Grays people were building for us in my life.’

I think that it is impossible to believe that such witnesses as Taylor, Arnot, and Bolton were giving deliberately false evidence, and unless their evidence is false, it is certain that Stewart not only knew that the keels were being laid with a camber, but insisted that the camber should be kept up to the amount which Lithgow says was mentioned to him. But if that be the case, then it seems to me that Stewart's evidence is also discredited when he says that he gave no instructions for cambering the keels. The evidence of the defenders' witnesses is consistent throughout. The instructions which Lithgow gave to his employees, and Stewart's conduct when the ships were being built, are just what one would have expected if Stewart had instructed Lithgow to camber the keels.

But then the pursuers say that even assuming that the keels were laid with a camber by Stewart's instructions, he had no authority to give such instructions, and the defenders acted upon them at their own risk. The question whether in such a matter the defenders were entitled to take their instructions from Stewart would only arise if it appeared that these instructions were given without the knowledge and approval of the pursuers, and I shall now inquire how the evidence upon that point stands.

There are two partners of the pursuers' firm, William and George Burrell. The former takes charge of the commercial department of the business, and is not an expert in shipbuilding. George Burrell, however, is a practical shipbuilder, and prepared the specifications for the vessels in question.

There is no evidence, in my opinion, that William Burrell knew of the keels being cambered, and I believe that he did not do so. I think that the fact that he did not know that the defenders had been instructed to lay the keels with a camber accounts to a large extent for this action being brought, and for the form which the pursuers' case ultimately assumed.

There is, on the other hand, a considerable body of evidence which goes to show that George Burrell knew and approved of the keels being laid with a camber.

George Burrell's evidence is that he never heard of the keels being cambered until after the ships were delivered, and one of them had been injured by being docked upon straight blocks in Sydney, He says that the first time he ever heard of such a thing as keels being cambered was upon one occasion about the end of 1893, when he and Stewart were going by train to Greenock to visit the defenders' yard. Stewart then told him that the Grays were laying their keels with a slight camber. Stewart explained that the Grays' yard was a new yard (in which I suppose the blocks were liable to sink somewhat), and that the object of laying the keels with a camber was to ensure that they should be straight when the ship was finished. George Burrell also says that upon the same day he and Stewart met Lambie in the defenders' yard, and his evidence as to what passed is as follows:—‘When we were going to see the first steamer, Mr Lambie, one of the defenders' people, asked Mr Stewart how the Grays were getting on, and Mr Stewart said they were beating him hollow. Mr Lambie then asked, ‘Are they putting up the bottom any?’ and Mr Stewart said, ‘Yes, they are giving her a camber of an inch and a-half.’ I said to Mr Lambie, ‘Surely you are doing nothing of that kind here?’ and he said, ‘Oh, no.’’

George Burrell says that that was the only occasion upon which he ever heard the subject of cambering the keels mentioned.

He also says that he never looked at the keels of the vessels when they were in course of construction in the defenders' yard.

The witnesses upon whom the defenders chiefly rely as contradicting the evidence of George Burrell and showing that he did know of the keels of the vessels being cambered, are M'Geahan, Lambie, Marshall, and Polonis.

M'Geahan was employed by the pursuers in 1893-94 as their inspector in Messrs Grays' yard. At Christmas 1893 he was in Glasgow, and saw Mr George Burrell, and he gives this evidence as to what passed:—‘He’ (George Burrell) said ‘By-the-bye, M'Geahan, are Grays' people giving these boats any camber?’ ‘I did not understand what he referred to, and he drew it upon a piece of blotting paper, and then I understood him. He drew the camber down to a rough outline of the ship, fore and aft. He told me he wanted the ships to have three inches of camber. That was all that passed at the time. In the beginning of the year I went back to Hartlepool, and called on Mr M'Glashan, the chief draughtsman. He referred me to Mr Bailey, the foreman carpenter, and said Bailey would see that I got taking sights of the ship. I asked Bailey if he was cambering the snips. I don't recollect just now exactly what he said. I got him to make arrangements for sighting the ships, and I sighted them along with him. In the result, I judged that the ships had about three inches of camber.’

Now, George Burrell denies absolutely that he had any conversation with M'Geahan in regard to Grays' vessels being cambered. I think, however, that M'Geahan's evidence proves that such a conversation did take place. I do not believe that what he says about George Burrell illustrating what he meant by camber by a drawing upon the blotting-paper was an invention.

I do not think, however, that I can regard M'Geahan's evidence as proving

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that George Burrell instructed him to see that the keels were given three inches of a camber. M'Glashan, Messrs Grays' draughtsman, who was examined as a witness for the pursuers, says that he has no recollection of M'Geahan speaking to him about the cambering of the keels, or of any arrangement being made for M'Geahan sighting the keels. Further, M'Geahan never made any report to Burrell in regard to the amount of camber, as one would have expected him to have done if he had been instructed to see that the keels were kept up three inches.

Now, if all that is proved is that George Burrell spoke to M'Geahan about Grays' keels being cambered, it does not amount to much. George Burrell admits that shortly before M'Geahan's call Stewart had told him that the Grays were cambering the keels, and it was therefore most natural that when he saw M'Geahan he should ask him what was actually being done. If nothing more passed, the incident might have escaped Burrell's memory.

The next witness is Lambie, the defenders' assistant manager. He produced a note-book which he says he kept at the time, and the entries in which were made of the dates they bear. The entries are somewhat peculiar, but I see no reason to doubt that the note-book is one which Lambie actually kept at the time, and at that date he had no motive for making false entries.

Under date the 8th March 1894 there is the following entry in the note-book:—‘Mr Stewart and Mr George Burrell are here to-day. Mr Burrell had a talk with me about camber of keels. He says Grays of Hartlepool have laid the keels with 3 inches of camber, and would like ours here to have at least that. I said to him that our smaller steamers’ keels were laid with 4 inches of camber, and I was sure they had at least 3 1 2 to 4 inches. Afterwards, along with Mr Stewart, I had a look at the keels.’

Lambie swears that that entry is a correct record of what took place, and he adds—‘Both Mr George Burrell and Mr Stewart looked at the keels on that occasion—I mean looked along the keels. I was beside them at the time. We went up on the blocks at the bow of the vessel, and looked along the keel and saw the camber. Mr Burrell did not say anything—he seemed satisfied.’

Lambie's evidence is corroborated by Charles Marshall, a shipwright in the employment of the defenders. He was working at the ‘Strathairly’ when Lambie, Stewart, and Burrell came to the ship. He describes how they looked along the keel, getting upon one of the end blocks for that purpose. His evidence then proceeds: ‘They then got down, and I heard them say something—I did not make out the full statement—about giving them three on the Tyne. It was Mr Burrell who said that. Then they had some other conversation which I did not hear. Mr Lambie's back was to me. They were moving about, and after talking a little bit the next thing I heard was, ‘Of course nothing less, Mr Lambie,’ and Mr Lambie said, ‘Oh no, I will look out for that.’ They then went away. I saw Mr Burrell and Mr Stewart about ten minutes afterwards at the stern looking under the bottom along the keel. I was inside the boat at the time looking out through the frames. From the place were they were they could easily see the camber on the keel. It was quite light at the time.’

Now, this was evidently the same occasion as that to which Lambie speaks, because upon the same day as the incident occurred, Marshall tested the rudder-post, and made an entry to that effect in his note-book. The date appears at first to have been put down as 8th March, and afterwards a ‘7’ has been written over the figure 8. Marshall cannot recollect how the alteration came to be made. He says that he supposes that he must have been looking over his notes and thought that the 7th was the correct date. The entry in Lambie's book is the 8th March, and it might have been suspicious if Marshall had altered the date in his book from the 7th to the 8th. He could have had no improper object, however, in altering the date from the 8th to the 7th, as appears to have been done.

The witness Polonis also speaks to having heard George Burrell speak to Lambie about cambering the keels. Polonis was then foreman engineer with the defenders, but he is now in the employment of another firm. He says that lie saw Lambie, Stewart, and Burrell in the yard, and that he heard Burrell say, ‘What about these keels, Lambie?’ and then he heard him say, ‘I hope they are cambered the same as Grays'.’

Polonis is unable to fix the date when the incident occurred, but he thinks that it was about the beginning of winter.

I think that it is impossible to disregard the evidence of Lambie, Marshall, and Polonis, and I saw no reason to believe that they were not speaking the truth. But if the evidence is to be accepted, then it shews that George Burrell was aware that the keels were being cambered, and was anxious that the amount of camber ordered by Stewart should be maintained.

The pursuers founded upon the fact that there were no written communications in regard to the cambering of the keels. They pointed out that even trivial deviations from the specifications were made the subject of correspondence, and they argued that if so important a matter as cambering the keels had been proposed by Stewart, the defenders would, for their own safety, have obtained confirmation of the instructions in writing. It is to be remembered, however, that the cambering of the keels did not involve any alteration of the specifications or of the contract. It was simply a matter of laying the keels with a curve instead of straight.

I am of opinion, for the reasons which I have stated, that it is proved (1) that the keels were laid with a camber upon the

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instructions of Stewart; (2) that George Burrell knew and approved of the keels being cambered; and (3) that the keels were laid with a camber of 4 inches for the smaller ships and 4 1 2 inches for the larger ships. I am further of opinion that it is not proved that in laying the keel with a camber any alteration was made upon the bulkheads or any other part of the vessel.

I do not doubt that the object of Stewart and George Burrell in having the keels laid with a camber was to ensure ultimately straight keels, and I have as little doubt that Mr Lithgow, from his experience with sailing ships, anticipated that that would be the result. But the keels having been cambered upon the instructions of the pursuers, I am of opinion that the risk of the keels not becoming straight was with them.

The result is that the pursuers have, in my judgment, failed to prove their claim of damages on account of the cambered keels.”

The pursuers reclaimed.

It is unnecessary to recapitulate the arguments of parties, which were directed to the merits, and not to the point on which the case is now reported.

At advising—