Scottish Court of Session Decisions

This was an action by the Steamship “Fulwood,” Limited, Preston, owners of the steamship “Fulwood,” against the Commissioners of the Harbour of Dumfries and the Navigation of the river Nith, to recover damages from them for injuries sustained by the said ship while berthing at Glencaple Quay in the river Nith. The defenders were vested with the control and management, inter alia, of Glencaple Quay, and were by “An Act for Improving the Harbour of Dumfries and the Navigation of the River Nith” (51 Geo. III, c. 147), entitled to levy dues on goods imported to and exported from the river Nith, and on all vessels entering the said river. By section 11 of the said Act these dues were directed to be applied by the Commissioners “to the improvement of the navigation of the said river, … and for performing every other thing necessary for the safety of the shipping and goods belonging to the said port.”

About 1866 the defenders, for berthing purposes, laid the bottom of the berth at Glencaple Quay with a series of skids or timber baulks. These skids were laid in the bed of the river, and ran out at right angles to the quay in the form of a “grid.” The facts in the case, as disclosed by proof, appear from the note of the Sheriff (Fleming) and from the following findings in fact, the first seven of which were made by the Sheriff-Substitute ( Campion), the remaining findings being added by the Sheriff (Fleming), and the portions of 9 and 10 printed in italics being added by the Inner House :—“(1) That the pursuers are owners of the steamship ‘Fulwood’ of Preston, and that the defenders, as Commissioners of the Harbour of Dumfries and the navigation of the river Nith, are vested with the control and management of Glencaple Quay; (2) that on 21st March 1905 the ‘Fulwood’ having arrived at the river Nith was joined at Carsethorn by the pilot Robert Major, and by him taken to Kingholm Quay, where she discharged and loaded part of her cargo; (3) that on 22nd March 1905 the ‘Fulwood’ was taken by Major, the pilot, to load the remainder of her cargo down to Glencaple Quay, where she was moored about 1.45 p.m.; (4) that at the time the ‘Fulwood’ was moored at Glencaple Quay the tide was ebbing, and that about an hour afterwards the vessel took the ground; (5) That in consequence of it having been reported to him that the rigging of the foremast was becoming tight and the vessel straining, the master Joseph Quaile, between 5 and 6 o'clock after the ebb of the tide examined the berth and found that the vessel was unsupported from the foremast forward; (6) that on the turn of the tide the ‘Fulwood’ floated about 11.30 p.m. on the evening of 22nd March, and an hour later sailed for Liverpool with a cargo of 190 tons on board, arriving there about midday on the 23rd, when the master made a report to the managers of the ‘Fulwood;’ (7) that in consequence of said report the ‘Fulwood’ was inspected by the witness Smart, when it was discovered that the ‘Fulwood’ had sustained considerable damage; (8) that the said damage amounts to at least the sum sued for, and was sustained at Glencaple Quay on 22nd March 1905; (9) that said damage was caused by the skids placed at said quay by the defenders, and maintained by them for berthing purposes, having been allowed to fall out of a uniform gradient, and by several of them where the forward part of the vessel would rest as she was berthed being wanting; (10) that said defects could have been ascertained by the defenders by the exercise of reasonable care; (11) that the defenders by their harbourmaster were aware that the ‘Fulwood’ was about to take up the berth at said quay : and (12) that no warning was given to the master of the ‘Fulwood,’ or anyone on his behalf, that said defect existed….” The pursuers pleaded—“The pursuers having suffered loss and damage through

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the fault of the defenders as condescended on, decree should be granted for the sum sued for, with interest and expenses as craved.”

The defenders pleaded—“(1) The pursuers' statements are irrelevant and insufficient in law to support the conclusions of the action. (2) The injury to the pursuers' vessel not having been sustained at Glencaple Quay, the defenders are not liable. (3) The said injury not having been sustained through the fault or negligence of the defenders, they are entitled to absolvitor with expenses. (4) Separatim, the said injury having been caused by, or materially contributed to by, the pursuers, or those for whom they are responsible, the defenders are entitled to absolvitor with expenses.”

On 2nd November 1905 the Sheriff-Substitute ( Campion) after a proof pronounced an interlocutor, which after making the seven findings in fact above quoted proceeded—“Finds it not proved that any damage sustained by the ‘Fulwood’ was sustained through fault or negligence on the part of the defenders : Therefore sustains the third plea-in-law stated for the defenders : Assoilzies them from the conclusions of the action, and decerns.”

The pursuers appealed to the Sheriff ( Fleming), who on 19th February 1906 sustained the appeal, recalled the interlocutor of the Sheriff-Substitute of 2nd November 1905; found of new in terms of the seven findings in fact contained therein; found further in fact as above quoted; found in law that defenders were liable for the damage sustained by the “Fulwood,” and granted decree for £500.

Note.—“The defenders are by the Act 51 Geo. III, c. 147, entitled to levy dues on goods imported to and exported from the river Nith, and on all vessels entering the said river. They are directed to apply the said dues ‘to the improvement of the navigation of the said river and for … affixing cranes upon the quays, and for performing every other thing necessary for the safety of the shipping and goods belonging to the said port.’

Their duty is to provide such facilities for unloading and loading as will induce shipowners to pay the dues levied on ships entering the river. Glencaple Quay is one of the quays maintained by them under their statutory powers. It is a quay at which vessels using it must take the ground at low water.

I think there is little doubt about the liability of port and harbour authorities such as the defenders are. There is no absolute obligation upon such authorities to insure against accident, but there is an obligation to take reasonable care that the accommodation which they provide is in a safe condition. The imposition of dues upon vessels entering the river is, in respect of the facilities for working these vessels, provided by the Commissioners, and the permission and right to use these facilities thus given implies an undertaking that reasonable care has been taken to see that these facilities are such as can be used with safety, and, further, if they are not in such a state, implies a duty to warn all who are permitted to use these facilities.

The facts here are not seriously disputed. The steamer ‘Fulwood,’ with a carrying capacity of about 190 tons, arrived with cargo from Liverpool at Kingholm Quay, Dumfries, on 21st March 1905. She discharged her cargo, and loaded a part cargo there. M'Call, the defenders' harbourmaster, who has charge of all the defenders' quays, heard that the ‘Fulwood’ was to complete her loading at Glencaple Quay, and on the following morning he went down there to survey the berth. On his return to Kingholm Quay he was told by the master of the ‘Fulwood’ that she was going down to Glencaple Quay, and he gave the direction that she should be made well fast as the tide was strong. He gave no warning that the berth at Glencaple was unsafe, having come to the conclusion from his inspection that morning that it was in good order. The ‘Fulwood’ accordingly dropped down the river and made fast alongside Glencaple Quay at a point to suit the loading-place prepared for carts. No one was present on behalf of defenders, nor were any directions given to the master as to where he should moor. As the tide ebbed the vessel took the ground, when it was noticed that the rigging had tightened, and the master making an examination from the ground found that she was lying with no support from the foremast forward. That the vessel there and then sustained the injury complained of is not disputed.

The cause of the accident is not very clear. There had been at one time a series of baulks of timber laid in the bed of the river running out from the quay at right angles to it. These baulks of timber are called skids, and are stated by the defenders to be placed there and maintained by them for berthing purposes. Two views of the precise use which these skids are intended to serve are put forward in this case. One of them is that they are to form a ‘grid’ on which any vessel moored at this quay should rest. The other that they are merely as guides to aid the harbour-master's eye in clearing away accumulations of gravel or sand and keeping the berth fairly level. Whichever of these views be taken it seems to me to be of the first consequence that these skids should all be there or none. If the grid is imperfect by the loss of some of the skids the danger is obvious if a vessel either has to bridge over too great a space between the remaining skids or takes the ground with a considerable part of her length either fore or aft unsupported.

Similarly, if these skids are for levelling purposes only, the danger is exactly the same, unless the bed of the river where the skids are awanting is not only level with the remaining skids but is of the same unyielding character.

And even if the skids are all in position, it is essential that they should be so levelled that a vessel resting on them receives support from each. When some of the skids are wanting and the remaining skids are not on a uniform level the probability of injury to a vessel lying there is greatly increased.

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In this case there had originally been fourteen skids. Counting from the skid furthest up stream, Nos. 1 and 2 are still there, Nos. 3, 4, 5, 6 have gone, No. 7 remains, No. 8 has gone, and Nos. 9, 10, 11, 12, 13, 14 remain. The ‘Fulwood’ was lying on Nos. 9 to 14, No. 9 being under her foremast. According to the evidence she was unsupported forward of that skid; the injuries she received are consistent with that evidence, and the sections produced by the pursuers are in accordance with it. The defenders produce sections also, but if they are correct I fail to see how the vessel could ever have sustained any injury, and I feel bound to prefer the pursuers' sections. It seems to me that the cause of the injury was that the down stream skids Nos. 9 to 14 were out of truth with the general line of the skids, by the lower skids having been allowed to settle down too much. The result was that when the ‘Fulwood’ took the ground her stern came down to the level of No. 14 and she received support forward to No. 9, but that, the level of the skids forward changing there, No. 9 became a fulcrum, and on it she strained and nearly broke her back.

Is this condition of these skids a fault for which the defenders are responsible? I have no doubt it is, if it is a condition which could have been avoided by the exercise of reasonable care. The absence of certain of the skids was obvious, and clearly could have been remedied by reasonable care; but I am not satisfied that this was the cause of the injury. I think that the inequality of the level of the skids was the cause, and the question thus narrows to this : Could such an inequality have been avoided by reasonable care ?

The inequality is a matter of not more than two inches, and could only be detected by very close examination, but it seems to me that such an examination was incumbent on the defenders. If they put down a grid for berthing vessels they must know that its absolute equality is an essential, and they cannot escape liability on the ground that it would be unreasonable to expect them to see that its absolute equality is maintained.

I think it is proved that there was a defect in this berth, and a defect which could have been discovered by the exercise of the care called for in the circumstances. That being so, it was the duty of the defenders, when they knew that a vessel which had paid dues which included the right to use this berth was about to proceed there, to have warned her of the defect. They did not do so, and are therefore liable for the loss sustained.

The defenders plead that the sum sued for is excessive, but the pursuers' evidence is not challenged on this point.”

The defenders appealed, and argued—To make them liable the pursuers required, but had failed to establish, that the accident was due to defects in the berth which rendered it unsafe, and that the defenders though aware, or if ignorant, negligently ignorant, of the fact that it was unsafe, had allowed it to remain so. Such evidence as there was for the pursuers showed that the accident was attributable—and so the Sheriff had found—not to the absence of skids but to one skid being about two inches higher than the others. It was not proved that the defenders knew of this defect, and it was too slight and not sufficiently obvious to infer the negligent ignorance necessary to cause liability. Thomson and Others v. Greenock Harbour Trustees, July 20, 1876, 3 R. 1194, 13 S.L.R. 155; The Mersey Docks Trustees v. Gibbs, 1866, L.R., 1 HL 93.