Scottish Court of Session Decisions

On July 3, 1905, Æneas Mackay Mackenzie, salvage contractor, The Slip, Stornoway, raised an action against the Stornoway Pier and Harbour Commissioners to recover the sum of £260 as loss and damage suffered by him through the alleged total loss of his fishing vessel “Flying Venus.” The defenders, inter alia, pleaded—“(2) The pursuer not having suffered any loss through any fault of the defenders, the

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defenders ought to be assoilzied from the conclusions of the summons.”

The Stornoway Pier and Harbour Commissioners were incorporated by and acted under the Stornoway Harbour Order 1865 (confirmed by 28 and 29 Vict. cap. 76), the Stornoway Harbour Order 1881 (confirmed by 44 and 45 Vict. cap. civ), and the Stornoway Harbour Order 1892 (confirmed by 55 and 56 Vict. cap. cciv). The harbour-master was Captain Morrison, and his deputy Peter Macpherson.

The circumstances of the case are given in the opinion of the Lord Ordinary ( Dundas), who on 14th March 1906, after a proof, pronounced an interlocutor finding that the pursuer had failed to prove that he had sustained any loss through the defenders' fault, sustaining their second plea-in-law, and assoilzieing them.

Opinion.—“The pursuer is a salvage contractor in Stornoway, and the owner of various vessels and fishing-boats. One of his fishing-boats is named the ‘Flying Venus.’ On 7th or 8th January 1905 this boat, while laid up for the winter in a berth in Stornoway Harbour, sustained injuries for which the pursuer holds the defenders, the Stornoway Pier and Harbour Commissioners, to be responsible. The defenders are a statutory corporation. Their constitution and powers are described in a general way upon the record. Some of the articles contained in their bye-laws were specially referred to by counsel. By article 4 it is provided that ‘all vessels coming into the harbour shall be subject to the control of the harbour-master as to the place of mooring or anchoring; … and should the master or other person in charge refuse or delay to shift such vessel as directed by the harbour-master, the harbour-master shall have power to cause such vessel to be shifted at the cost of the master or other person in charge.’ Article 12 provides that ‘Every vessel at the quays shall be attached and fixed by substantial hawsers, tow-lines, and fasts to the dolphins, moorings, buoys, or mooring posts.’ Article 19 gives power to the harbour-master in case the master of any vessel in the harbour does not, upon the former's demand, unloose or slacken the ropes or chains by which the vessel is fastened, to cut any such rope or chain. Article 22 provides, inter alia, that the skippers of fishing-boats within the harbour ‘shall be bound implicitly to obey the orders of the harbour-master as to the berthing, mooring, unmooring, or removal of such boats, and shall be bound, so long as the boats are afloat, to have on board a sufficient crew to receive and execute such orders.’ The defenders are expressly empowered to levy rates, inter alia, ‘for every herring or fishing vessel or boat wintering or laying up alongside a quay—per month, 5s.’ It seems that they have been and are exceedingly slack as regards enforcing payment of these rates; but the point is, in my judgment, of little or no importance in the case.

It appears from the proof that fishing-boats entering Stornoway Harbour to lay up for the winter are in use to go and moor up at any vacant berth they choose without making application to the harbour-master. If the latter orders them to move they must do so; but if he makes no objection they remain in the berth of their choice. About September 1904 the ‘Flying Venus’ took up her place for the winter in a berth in the inner harbour at the extreme upper end of Cromwell Street Quay, which was shown on a chart. The bottom there falls away at a considerable slope outwards from the quay wall. The origin of this accident to the ‘Flying Venus’ was that another fishing-boat, the ‘Victoria,’ was brought by those on board her, in a waterlogged condition, alongside the ‘Flying Venus’ and firmly lashed to her, as well as secured by fore and aft hawsers to the quay. This occurred on the evening of Friday, 6th January 1905. No one was at the time on board or in charge of the ‘Flying Venus.’ On the night of Saturday, 7th, or the morning of Sunday, 8th January, the ‘Victoria’ took a determined list to port, fell over, and dragged with her the ‘Flying Venus,’ which was capsized, filled with water, and received injuries as to the extent of which the parties are at issue. The fault or negligence of the defenders in this state of matters is not readily apparent. But the pursuer explains that the harbour-master was well aware that the berth in question, though safe for a single boat, was a dangerous one, in respect that if a second boat should moor alongside the first comer there would, owing to the sloping contour of the bottom, be grave risk unless proper precautions were taken of such a falling off occurring, as did in fact occur; and that the harbour-master, having this knowledge, was in fault ‘in allowing the “Victoria” to take up and retain the position she did in the harbour and to be secured as aforesaid to the “Flying Venus,” or otherwise in failing to prevent the “Victoria” from taking up or at least from retaining said position.’

At this point I must advert, for the purpose of clearing it out of the case, to an earlier episode in the career of the ‘Flying Venus,’ which bulks considerably in the proof. On 14th December 1904 she was lying, as already explained, in the berth in question. A fishing-boat called the ‘Missionary’ came alongside, and was secured to the ‘Flying Venus’ by lashings amidships, as well as to the quay, and then listed over and capsized, thus inflicting upon this unfortunate boat a disaster similar in mode and result to that which she sustained later on in the affair of the ‘Victoria.’ …

I must now turn to the evidence upon which the charge of fault and negligence on the part of the defenders is said to be supported. The pursuer and his witnesses agree in stating that the berth is a perfectly safe one for a single boat to occupy; but I think that this statement, in order to its perfect accuracy, must be qualified by adding the condition that ordinary and reasonable attention is paid to the boat by its owner or his men at the times when

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she is taking the ground. This is, in my judgment, the opinion of the best witnesses upon both sides. The ‘Flying Venus’ herself lay with perfect safety in this berth during the winter of 1903–1904. The whole evidence in my opinion completely negatives the idea that the berth is in itself dangerous. The question is narrowed to one as to possible danger to a boat safely moored there by reason of the intrusion of a second boat which comes alongside and is lashed to her. It is, I think, proved that it is the custom of fishing-boats in all parts of Stornoway Harbour to lie alongside another boat and lash on to her without consent or permission asked or given. Both Captain Morrison and his deputy, Peter Macpherson, who seemed to me a very good witness, state that there is no danger in this practice either at this berth or at others, so long as the boats are properly lashed, and reasonable care is taken to see at the appropriate states of the tide that they take the ground in a proper manner. If, on the other hand, the fishermen neglect these attentions altogether, accidents may and probably will happen. It is all a matter of reasonable care and attention. Now on 6th January 1905 it appears that the ‘Victoria,’ having ‘fallen off’ lower down the harbour, and having been ordered by the harbour-master to remove to ‘the beach,’ or to a part of the bay called Glumag, instead of obeying the order proceeded to the inner harbour, and moored close alongside and lashed amidships to the ‘Flying Venus.’ The pursuer's man, Neil M'Leod, was not upon the spot when this was done, nor did he visit it during the next day, Saturday. The approximate cause of the accident, which occurred in the night between Saturday and Sunday, is sufficiently obvious. When the ‘Victoria’ was lashed to the ‘Flying Venus’ she was full of water, but on Saturday Malcolm Mackenzie, who was in charge of her, came down and let the water out of her by removing the plug, which he then replaced. The result of this was that the lightened ‘Victoria’ failed to take the ground at the same time as the ‘Flying Venus,’ but remained afloat and presently capsized that unlucky boat in the manner already indicated. Both Malcolm Mackenzie and the pursuer are clear that this was how the mishap occurred. And in these circumstances the latter alleges that the injury to his boat was caused by the negligence of the defenders or their harbour-master. I confess that I am quite unable to see how this contention can be supported. The pursuer's views as to the duties of the harbour-master are certainly of an extensive character. They appear to me to be arrived at on the basis that all the powers conferred upon the harbour-master are truly obligations, whereas the bye-laws, to which I referred at the outset, seem to impose obligations not upon the harbour-master but upon those in charge of the vessels or boats. I think that Captain Morrison and his deputy Macpherson define with moderation and substantial accuracy the scope of their duties. I cannot suppose that there is any obligation upon the harbour officials to see that in all cases where fishing-boats are lashed together, this has been originally done, and is subsequently continued and maintained, in a safe and sufficient manner. This view seems to me to be contrary to good sense, and it is repudiated by some of the fishermen or seamen who gave evidence. The law of the whole matter is, I consider, nowhere more clearly laid down than in Thomson v. Greenock Harbour Trustees, 1876, 3 R. 1194. Lord Ardmillan (p. 1197) says—‘I have no doubt that fault or negligence on the part of the trustees or of their servants must be proved. There is no guarantee or assurance of absolute safety. It is not expressed, and it is not implied. The defenders can only be liable if fault or negligence by them or their servants is proved.’ In the same case Lord President Inglis (p. 1200) thus expressed himself—‘The Harbour Trustees of Greenock, like the managers of any other harbour, provide accommodation for shipping, and invite the masters and owners of ships to occupy that accommodation, and charge them a price for it. The obligation thence arising is not an obligation to insure against accident, but only an obligation to use reasonable diligence to prevent the occurrence of injuries to vessels.’ Lower down on the same page his Lordship adds this — ‘I think, on the contrary, it lies on the pursuer in such an action as this to prove, as matter of substantive fact, that there is negligence upon the part either of the Harbour Trustees or of someone in their employment.’ Applying this law to the present case I am unable to see that the pursuer has proved any fault or negligence on the part of the defenders, or of their officials, or that the latter can, upon any just theory, be held liable for the injuries to the ‘Flying Venus,’ in respect of which damages are claimed.

In the view which I take of the case it is unnecessary to consider the question of damages. I may say, however, that if I had seen my way to finding the defenders liable, the sum awarded would have been a much smaller one than that which is concluded for in the summons.”

The pursuer reclaimed, and argued—The defenders were bound to exercise reasonable care to protect the pursuer, and if they failed therein they were liable in damages — The Mersey Docks Trustees v. Gibbs, L.R., 1 E. & I. App. 93, Lord Blackburn at p. 107; Thomson v. Greenock Harbour Trustees, July 20, 1876, 3 R. 1194, Lord President Inglis at p. 1200, 13 S.L.R. 155; Doward v. Lindsay, L.R., 5 P.C. 338, Sir M. E. Smith at p. 343; The Moorcock, L.R., 14 P.D. 64, Bowen, L.J., at p. 69; The Bearn, [1906] P 48, Bargreave Deane, J., at p. 55 and p. 59; Owners of the s.s. “Toward” v. Owners of the s.s. “ Turkistan,” December 16, 1885, 13 R. 342, Lord M'Laren (Ordinary) at p. 344. There was here a special duty on the defenders' harbour-master arising from the character of the berth and from the

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knowledge he had of the waterlogged condition of the “Victoria.” That duty he had not fulfilled. He had full control of the harbour and should have prevented the “Victoria” being moored to the “Flying Venus,” and further, he had failed in his duty of superintendence in allowing the “Victoria” to remain moored to the “Flying Venus.” The pursuer at his own hand could not legally cut his vessel clear of the “Victoria”— Currie v. Allan, July 17, 1894, 21 R. 1004, 31 S.L.R. 814. Though the Removal of Wrecks Act 1877 (40 and 41 Vict. cap. 16) was permissive, it (sec. 4) laid on the defenders the duty of removing sunk or damaged vessels which might be dangers to shipping—“ The Douglas,” L.R. 7 PD 151, Cotton, L.J., at p. 160. That had not been done in the present case, and in this the defenders had failed in their duty and were consequently liable in damages.

Argued for the defenders and respondents — No fault had been proved such as would render the defenders liable. The cases quoted against them were easily distinguishable, as dealing with defective appliances for mooring, unsuitable berths, &c. There was no duty on the harbour-master to follow vessels about or to know that the equilibrium of the “Victoria” was to be upset by the actings of her crew. It was to their carelessness that the injury was due, and for that the defenders were not responsible.