Scottish Court of Session Decisions

James Watson and Others, owners of the Lighter “Hebe,” and Mark Henderson Redhead, owner of the steam tug “Thames,” sued George Gibson & Company, shipowners, Leith, owners of the s.s. “Eildon,” for £385 sterling representing damages sustained by the “Hebe” and the “Thames” in a collision with the “Eildon.”

The defenders pleaded—“(2) Separatim—The defenders' vessel being at the time of the collisions in charge of a pilot whose employment was compulsory, and the collisions, if due to the fault of anyone on board the defenders' vessel, being due to his fault, the defenders should be assoilzied”—and made averments in support of that plea.

The pursuers pleaded, inter alia—“(3) The defenders' averments as to compulsory pilotage being irrelevant, their second plea ought to be repelled.”

Lord Ardwall narrated the facts as follows:—“This is an action for damages in respect of a collision between the lighter “Hebe” and the steam tug “Thames,” on the one hand, and the s.s. “Eildon” of Leith on the other. The “Eildon” was on a voyage from Leith to Dunkirk, but required to call at Middlesborough to fill up her cargo. She loaded at Leith, and took on board part of her cargo and a number of passengers. The passengers were all booked to Dunkirk, and paid their fares in respect of such booking. No passengers were booked from Leith to Middlesborough. When the “Eildon” arrived at Middlesborough, she first proceeded to a wharf known as Cochrane's Wharf, where she took in further cargo. She then proceeded up the river under the charge of a pilot to take on board other cargo at Dent's Wharf, and it was while she was in the river off Dent's Wharf that the collision complained off took place. After taking in more cargo at Dent's Wharf the “Eildon” proceeded to Dunkirk, where her passengers and cargo were all landed.”

The Lord Ordinary ( Salvesen) on 18th March 1908 repelled the third plea-in-law for the pursuers and allowed a proof.

Opinion.—[ After narrating the facts]—“These being the facts, the defenders contend that section 604, sub-section 1, of the Merchant Shipping Act 1894, required them to employ a qualified pilot in the Tees, and accordingly that they are not liable for any negligence which he may have committed in the course of the navigation of the ‘Eildon.’ The material part of the section is in the following terms—[ section quoted v. sup. in rubric]. In the case of the ‘ Osprey,’ 5 F. (J.) 16, Lord Adam observed that this enactment was obviously made ‘for the protection of human life.’ It may have been so, but in that case it is singularly incomplete, because there is no enactment that on the return journey from Dunkirk to Middlesborough the vessel must employ a pilot in the Tees pilotage district, although the risk to the passengers from the vessel navigating these narrow waters is obviously the same whether the ship is approaching Middlesborough from Leith or from Dunkirk. I have, however, nothing to do with the anomalies of legislation, except in so far as they may have a possible bearing on. interpretation; and I do not see how the purpose of the enactment can in this case afford any aid in construing the enactment itself. The ‘Eildon’ was admittedly carrying passengers between Leith and Middlesborough, and therefore the enactment would appear prima facie to apply. Does it then make any difference that none of the passengers were to be landed at Middlesborough; and is it implied in the section, as the pursuers argued, that a vessel is not carrying passengers between two British ports if the passengers are, in fact, booked to a foreign port, which is the ultimate destination of the ship? In my opinion it would be introducing an additional anomaly into this code of legislation if I were so to hold. The result would be that if a couple of passengers had booked from Leith to Middlesborough, the master would require to engage a pilot for the Tees, but if they were all going to Dunkirk he would be exempt from compulsory pilotage. Whether the object of the enactment be to protect human life, or merely to secure employment for home pilots, such a distinction would be equally meaningless. I have accordingly no difficulty in repelling the pursuers' third plea-in-law, and as the case was sent on their motion to the procedure roll, I shall find them liable in expenses since the closing of the record. On the pleadings as they stand I shall allow parties a proof, which will enable the pursuers, if they choose, to take the case further at this stage.”

The pursuers reclaimed, and argued—The defenders were not entitled to plead compulsory pilotage, because at the time of the collision they were under no legal obligation to carry a pilot. Admittedly, if they were under such an obligation, it was solely because of the provisions of section 604 (1) of the Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60). The question

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therefore resolved itself into this, did section 604 (1) make the carrying of a pilot at the time of the collision compulsory? It did not. The “Eildon” was not carrying passengers “between any place in the British Islands and any other place so situate.” In the first place, at no period of her voyage was she doing so within the meaning of the section, if the words of the section were taken and reasonably construed as they must be. The only places “between” which she was carrying passengers were Leith and Dunkirk, the places from which and to which the passengers had booked their passages and paid their fares—“ The Hanna,” 1866, L.R., 1 A. and E. 283; “ The Lion,” 1869, 2 P.C.A. 525. It was therefore incorrect to say she ever carried passengers between Leith and Middlesborough. See “ The Temora,” 1860, 1 Lushington, Admiralty Reports, p. 17. Even, however, if she had been carrying them between these places earlier on her voyage, she was not doing so at the time of the collision, for by that time she had arrived at Middlesborough, and in no sense could she be said to be between Leith and Middlesborough—“ The Maria,” 1867, L.R. 1 A. and E. 358; “ The Servia” [1898], P. 36. The only remaining possibility was that while she was proceeding from Cochrane's Wharf to Dent's Wharf, she was proceeding and carrying passengers between two places in the United Kingdom in the sense of the section. This contention was sufficiently refuted by its own inherent absurdity. In the Dublin Port and Docks Board v. Shannon, 1873, 7 I.R. 116, founded on by the defenders in this connection, the two places were not in the same port.

Argued for the defenders (respondents)—The defence of compulsory pilotage was a good one, a pilot being obligatory, inasmuch as the vessel was carrying passengers between one place in the British islands to another place so situate. She was carrying passengers between Leith and Middlesborough. They were on board her between these places, and that was sufficient; that they were going on further, to Dunkirk, was immaterial—see “ The Rutland,” [1897] AC 333. At anyrate, even if she had arrived at Middlesborough, she fulfilled the requisite condition in respect of her voyage between Cochrane's Wharf and Dent's Wharf, each of which was a separate place in the British islands within the meaning of section 604—see Dublin Port and Docks Board v. Shannon, 1873, 7 I.R. Common Law Series, 116. It was important to bear in mind that the law as to compulsory pilotage was made in the interest of passengers, and was to be strictly construed— Randall v. Renton (“ The Osprey”), December 10, 1902, 5 F. (J.), 16, 40 S.L.R. 273. “ The Servia,” cit. sup., was not a decision under the Merchant Shipping Acts but under the Mersey Docks Acts. The following sections of the Merchant Shipping Act 1894 were also cited at the debate—secs. 596, 625 (5), 742.

At advising—