Scottish Court of Session Decisions

On 29th July 1908 Otto Beucker, shipowner, Geestemunde, Germany, registered owner of the steam trawler “Irmgard,” brought an action against the Aberdeen Steam Trawling and Fishing Company, Limited, owners of the steam trawler “Strathfillan,” in which he sued for £1000 as damages caused by a collision between his vessel and the “Strathfillan.”

The pursuer pleaded—“The pursuer having sustained loss and damage to the amount of the sum sued for, through the fault of those in charge of the ‘Strathfillan,’ for whom the defenders are responsible, is entitled to decree as concluded for, with expenses.”

The defenders, inter alia, pleaded—“(3) The said collision being entirely due to the fault of those on board the ‘Irmgard,’ the defenders should be assoilzied. (4) The collision having been at least materially contributed to by the fault of the ‘Irmgard,’ the damages fall to be divided between them according to the rules of Admiralty practice.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Salvesen), who on 20th February 1909 pronounced this interlocutor:—“Finds that a collision occurred between the pursuer's steam trawler, ‘Irmgard,’ and the defenders' steam trawler, ‘Strathfillan,’ about 4.30 a.m. on the 19th February 1908: Finds that the said collision occurred in consequence of fault on the part of those respectively in charge of both vessels: Assesses the damages caused by the collision to the pursuer at £325, 10s. sterling, and to the defenders at £81 sterling: Finds that the total damage sustained by both vessels amounts to the sum of £406, 16s., of which each vessel falls to bear a moiety of £203, 8s.: Therefore decerns against the defenders for payment to the pursuer of the said sum of £203, 8s. under deduction of the said sum of £81, with interest on the sum of £122, 8s. as concluded for.”

Opinion.—“This action arises out of a collision which took place between the pursuer's steam trawler ‘Irmgard’ and the defenders' steam trawler ‘Strathfillan,’ about 4.30 on the morning of 19th February 1908. It was a clear moonlight night; both vessels had their regulation lights burning brightly, and there was no obstacle of any kind to occasion difficulty in the navigation. Notwithstanding, the ‘Strathfillan’ and the ‘Irmgard’ collided while they were both going at full speed, the ‘Strathfillan's’ bow cutting into the ‘Irmgard’ some 25 feet from her stern.

No members of the crew of the ‘Strathfillan’ have been examined in the case, that vessel, as it is now conceded, having been grossly to blame. She was steering about S.W., while the ‘Irmgard’ was on a

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S.S.E. course; and as the ‘Strathfillan’ had the ‘Irmgard’ on her starboard side, it was her duty to have kept out of the way. She could easily have done this, if there had been a proper look-out or any look-out at all, by porting her helm at no great distance from the ‘Irmgard.’ According to Captain Cowie, the pursuer's expert, she ought to have done this when the vessels were not more than a quarter of a mile apart; and even when they were only five ships' lengths distant a collision would have been avoided if she had obeyed the regulations and put her helm hard a port. Instead of doing so she proceeded without alteration of her course or speed to the point where the collision occurred.

The defenders, however, say that the ‘Irmgard’ was also to blame for the collision. She had noticed the ‘Strathfillan’ approaching on her port bow for some time; and when the vessels were still half-a-mile apart sounded a long blast on her whistle to attract the attention of those on board the ‘Strathfillan.’ Her mate, who was in charge, observed that in spite of this warning the ‘Strathfillan’ did not change her course, but he says that he relied upon her doing so up to a very short time before the collision occurred, and made no alteration on his own course or speed. I think he was entitled to do so, so long as the collision might reasonably have been averted by the ‘Strathfillan’ acting in a seamanlike way, although it would have been wiser in the circumstances if he had repeated the signal which he had already given. In cross examination, however, the mate admitted that when the vessels had approached within five ships' lengths of each other he realised that there was danger of a collision if they both proceeded on their respective courses and speeds. Nevertheless he took no means at that time to avoid a collision, and it was only when the ‘Strathfillan’ was one and a half ship's lengths away that he ported his helm, not to avoid a collision, which was then inevitable, but if possible to mitigate the blow. The ‘Irmgard,’ however, had only gone a very little way to starboard when the ‘Strathfillan’ struck her as before described. The angle of impact is proved to have been about 6 1 2 or 7 points, 8 points representing a right angle.

Under the Sailing Rules of 1884 there can be no doubt that the ‘Irmgard’ would also have been to blame. By article 18 of these regulations it was imperative on a vessel in the position of the ‘Irmgard’ to slacken speed or to stop and reverse. (The ‘ Beryl,’ 9 P.D., page 137.) Rule 18 has now been superseded, and its only equivalent in the regulations now in force is to be found in the note to art. 21. The article itself provides that ‘where by any of these rules one of two vessels is to keep out of the way, the other shall keep her course and speed’; and the note is in these terms—‘When in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she will take such action as will best aid to avert collision (see arts. 27 and 29).’ The two articles last referred to had their counterparts in the earlier regulations, and provide in effect that where there are any special circumstances which render departure from the rules necessary in order to avoid an immediate danger, there must not be blind compliance with the rules, but the proper precaution must be taken to avoid danger that would occur to a careful navigator. The question here does not involve any difficulty of construction of the rule but merely of its application. At five ships' lengths it was still possible for either of the vessels to have avoided a collision by porting their helms or by stopping and reversing immediately. The primary duty of adopting one or other of these manœuvres lay upon the ‘Strathfillan,’ but as soon as the mate of the ‘Irmgard’ ought to have realised that the ‘Strathfillan’ could not by her own action avoid a collision, at that point if not sooner, I think it was his duty to have stopped and reversed his engines and not to have continued to rely upon the ‘Strathfillan’ doing something by which a collision, contrary to his own view, might have been averted. Had he done so, it is demonstrable that the collision would not have occurred, and although his fault is not comparable to that of those in charge of the ‘Strathfillan,’ it was, in my opinion, fault which materially contributed to the collision. I accordingly hold both vessels to blame.

I may note in passing that while the evidence of Captain Grieve proceeds on the assumption that the vessels were approaching each other at right angles, the case against the ‘Irmgard’ is stronger the more acute was the angle at which the courses were crossing. If they were approaching at right angles at a distance of five ships' lengths between them, each of them would have to run four ships' lengths to the point of collision, whereas if the angle was one of 6 or 6 1 2 points there would be an extra 50 feet at least within which they could have been brought to a standstill. The mate of the ‘Irmgard’ seems to have thought there was a chance of his vessel getting across the bows of the ‘Strathfillan’ before the collision, but in my opinion he was not entitled to act upon this view. It would have been a much safer manœuvre to have ported his helm, by which means also, if timeously done, the collision could have been avoided.

On the matter of damages some questions of principle arise. The collision occurred about a hundred miles from Aberdeen, and both vessels at once proceeded to that port. The chief damage to the ‘Irmgard’ was above water, but she was also injured near the water line. She had a catch of fish amounting in weight to 50,000 lbs. with which she had been proceeding to her home port, Geestemunde. The owner was apprised of the collision, and without making any inquiry as to the extent of the damage or as to the prices of fish at Aberdeen, he at once wired to the master of the ‘Irmgard’ to proceed to Geestemunde if at all possible. The vessel

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accordingly proceeded to sea, after some slight temporary repairs, a little more than twelve hours after her arrival at Aberdeen, and reached Geestemunde on the 22nd of February. Other three trawlers from Iceland arrived that day and in consequence the price of fish fell. Had the ‘Irmgard’ arrived on the previous day, as she would in all probability have done but for the collision, her catch would have realised approximately the same prices as the catch of her sister ship the ‘Greeta.’ As soon as the fish had been discharged the vessel was put into dry dock and repaired by Messrs Seebeck, who are shipwrights in Geestemunde, under the supervision of the Underwriters' Surveyor. The repairs occupied fourteen days. Three claims are accordingly made for (1) the cost of the repairs; (2) the loss sustained by selling the catch on the 22nd instead of the 21st; and (3) compensation for detention for fourteen days. All these claims are disputed.

“(1) Repairs.—The main controversy on this subject arises out of the relative cost of executing repairs at Aberdeen and at Geestemunde. The defenders apparently anticipated a claim, and at once sent two shipwrights on board to note the damage and to prepare estimates. The ship, however, had sailed before the estimates were actually prepared; and these must be treated rather as valuations of the damage done than as commercial estimates for repairing it. Treating them so, I hold it proved that the repairs could have been accomplished in Aberdeen at a cost of £220. The estimates of the eminently respectable shipbuilders examined for the defenders did not approach this sum by from £40 to £60; but I add the difference for contingencies which always occur in the course of such work and cannot readily be appraised either from a mere statement of what was done or a general survey of the actual damage.

The question then arises whether the cost at which the repairs could have been executed at Aberdeen or the actual cost of the repairs at Geestemunde (which I assume for the present is moderately charged according to German prices) is the true measure of the loss which the pursuer is entitled to recover. Mr Sandeman argued that unless the pursuer acted unreasonably in ordering the ship to its home port, the defenders must pay the actual cost of the repairs there; and he carried his proposition so far as this, that while £220 would have been all that an Aberdeen trawl owner could have claimed in respect of a similar collision, a German trawl owner would be entitled to compensation on a higher scale. I cannot assent to this view. It was natural enough that the pursuer should prefer his vessel to be repaired at home, and he had the additional motive of ordering her there (while the liability for the collision was still unknown) that there was a prospect of his obtaining high prices for her catch—a prospect which unfortunately was not realised. In my opinion, however, such considerations do not entitle the pursuer to throw upon the defenders a heavier liability than they would have incurred if the ordinary course had been followed of repairing the ship at Aberdeen. I am prepared to affirm as a general rule in collision cases that the amount recoverable in respect of injury to a vessel falls to be measured by the cost of repairing her at the first port at which she takes refuge, if repairs can be conveniently effected there. The owner of a damaged ship has a perfect right to order her to proceed elsewhere to be repaired, but I think when he takes that course the onus is upon him to show that the repairs were executed as cheaply as they could have been in the first port of refuge. It has even been held in an unreported case, referred to in Williams and Bruce's Admiralty Practice, that when a ship was injured off Ramsgate, where she could have been repaired, but proceeded to the Tyne, the owners were not entitled to recover any more by way of the cost of repairs than would have been incurred at Ramsgate. I should not be prepared to go so far in all circumstances, or to have held in the present case that if she had proceeded direct from the scene of collision to Geestemunde, a reasonable bill for repairs there would not have been a good item of damage; but having once elected to go into Aberdeen, where repairs could be cheaply executed, she was not entitled to be withdrawn therefrom to her home port, so as to swell the bill of damage against the defenders, still less when the motive for ordering her to proceed there was the desire to take advantage of a temporary inflated market for her cargo.

(2) I have already stated the basis on which the claim for loss of profit on the sale of the fish is made up. If the fish had been sold at Aberdeen, there might have been a good ground for claiming the difference in price between what the catch realised there and what it would have realised at Geestemunde had there been no collision; but no evidence has been given as to the price which the ‘Irmgard's’ catch would have realised at Aberdeen on the day of her arrival or next morning; and the loss sued for represents an entirely unexpected fluctuation, due partly to other vessels arriving at the same time, and, perhaps still more, to anticipation of further arrivals. On this subject I was referred to three cases—the ‘ Parana,’ 2 PD 118; the ‘ Notting Hill,’ 9 P.D. 105; and Dunn, [1902] 2 KB 614. In the ‘ Notting Hill’ it was held that loss of market by delay arising from a collision was too remote a consequence to be considered as an element of damage, the contention upheld being that it is not the natural and reasonable result of a collision at sea; and the decision in the case of Dunn, while it explains and modifies the rule laid down in the ‘ Parana,’ does not impinge on the validity of the decision in the ‘ Notting Hill.’ Dunn's case was one of breach of contract, and the award of damages proceeded on the footing that it was known to both parties at the time of the shipment

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of the goods that a better price would be got if they arrived at one time than if they arrived at a later time. This reasoning is, of course, not applicable to a case of delict. Here it might well have been that a day's delay in arrival would have secured for the ‘Irmgard's’ catch a higher price if, for instance, she had been the only vessel to arrive that day; and again, a very few hours' delay through adverse winds or other causes would have been sufficient to make her lose the market on 21st February although there had been no collision. In short, to use the language of Lord Justice Mellish, ‘loss of market in the sense that persons are entitled to the difference between the price when the goods arrived and the price when they ought to have arrived is on an ordinary voyage so uncertain that it cannot be the natural and reasonable consequence in every case,’ and is not the natural and reasonable result of a collision at sea. These words appear to me to be peculiarly applicable to the kind of loss which is here claimed for.

(3) The third head of damage is for the loss caused by the detention of the vessel during her repairs. I have already held that these repairs ought to have been executed in Aberdeen, and I think it has been demonstrated that, at the outside, they would not have occupied more than ten days. From this I deduct the four days that would have been saved on the next voyage to Iceland, making the effective detention not more than six days, laying out of view the saving of coals and other stores that would also have been made. Mr Horne suggested that for this period a demurrage rate of from £6 to £10 per day is the proper measure of the damage. I do not think that a demurrage rate has any relation to claims for damages as the result of a collision. On the assumption that a fixed sum per day was to be awarded according to the size of the ship, no cognisance would be taken in the case of a cargo steamer of whether freights were high or low, and while a demurrage rate would more than compensate the owner during a period of low freights, it would not compensate him when freights were good. In the same way, when the best part of a fishing season is lost in consequence of a collision it seems to me that the fishing vessel must be compensated for her probable loss of profits, not on an assumed low rate of profits which might be a sufficient interest upon her capital if continued during the whole year. On the evidence I think it clearly proved that February is one of the best months in the year for German trawlers fishing in Icelandic waters, and it is not to be compared, for instance, with the summer months, when the fishing is frequently conducted at a loss. I know of no fairer method of assessing the damage than that which the pursuer has here taken, by ascertaining the average profits of some fifteen or sixteen trawlers similar to the ‘Irmgard,’ which all started from Geestemunde for the Iceland fishing on the 23rd of February. That works out roughly at some £21 per day, from which has to be deducted a sum to cover the cost of coals, ice, and engine-room stores which were not consumed. I fix this at £6, leaving the net sum per day out of which the pursuer had to meet the cost of crew, insurance, &c., at £15 per day. This method of estimating the loss is in accordance with the rule laid down in the ‘ Risoluto,’ 8 P.D. 109, and the prior cases therein referred to. I accordingly assess the loss owing to detention at £90. The other item, £24, 10s., as ‘agency fee to the managing owner,’ cannot be allowed, and was not seriously insisted in, nor in the view that I take can an account for temporary repairs be an item of charge against the defenders.

The total sum at which I assess the loss which the pursuer would have been entitled to recover if the defenders' vessel had been alone to blame is thus £325, 16s. The cost of repairing the defenders' vessel was, however, £81, and this falls to be added in order to apportion the loss equally between the two. The result is that I shall decern against the defenders for a moiety of the loss in accordance with the Admiralty rule, or £203, 8s.”

The pursuer reclaimed, and argued—The “Strathfillan” now admitted that she was in fault, but she had made definite and specific averments of fault against the “Irmgard” on record. None of her crew had been examined as witnesses, and she had failed to present any account of the accident from her point of view to the Court. The “Irmgard” was therefore entitled to the benefit of every reasonable doubt. The “Irmgard” was not in fault. Under article 21 her duty was to keep her course and speed. She was bound to stick to the rules at her peril. If she had departed from the rule and a collision had occurred the onus would have been on her to justify her departure therefrom — “The Voorwarts” v. “The Khedive,” 1880, L.R., 5 A.C. 876. It was true that it was the duty of the “Irmgard” not to adhere blindly to the rule but to take action to avoid the collision when it became clear that it could not be averted by the action of the “Strathfillan” alone. She had done so by porting when the vessels were a length and a-half apart from each other. It was proved that until the vessels were a length and a-half apart the “Strathfillan” might have avoided the collision by porting and going astern of the “Irmgard.” Until that moment the “Irmgard” had to keep her course under the penalty of being held to blame for the collision, whether her action in fact contributed to it or not—“ The William Frederick,” 1879, L.R., 4 A.C. 669; “The Voorwarts” v. “The Khedive,” 1880 ( sup. cit.) Even if the “Irmgard” had stopped and reversed at five ships' lengths the collision would have occurred unless the “Strathfillan” had also taken steps to avert it. And as a matter fact she did nothing. The “Strathfillan” having admitted that she was to blame, the onus was upon her to show that the “Irmgard” was also to blame—Marsden's Collisions at Sea (5th edition), 36 and 37. If the vessel which

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ought to hold on was placed suddenly in a position of danger through the fault of the vessel which ought to give way, perfect presence of mind and accuracy of judgment were not to be expected—“ The Bywell Castle,” 1879, L.R., 4 PD 219 (per Brett, L.J., and James, L.J.); Hine Brothers v. Clyde Trustees, March 7, 1888, 15 R. 498 ( per Lord J.-C. Moncreiff at 503), 25 S.L.R. 364; “ The Tasmania,” 1890, L.R., 15 A.C. 223 (per Lord Herschell at 226). Those in charge of the “Irmgard” could not be held to be in fault because they did not do what was absolutely the best thing that could have been done. It must be shown that they were clearly guilty of negligence, having in view the very exceptionally difficult circumstances in which they were placed. (2) The Lord Ordinary was wrong upon the question of amount of damages. The wrongdoer had to compensate the injured party for the damages naturally resulting from the wrong. The pursuer was entitled to recover his loss on the cargo, what he had bona fide paid for the repairs, and to damages for detention during the time of repair, unless it could be shown that he had acted unreasonably and that the bill of damage had been swollen by his unreasonable conduct—Mayne on Damages (8th ed.), 207; Hochster v. De la Tour, 1853, 2 E. and B. 678; Brown v. Muller, 1872, L.R., 7 Ex. 319 (at 322); Frost v. Knight, 1872, L.R., 7 Ex. III; Roper v. Johnson, 1873, L.R., 8 C.P. 167; Roth & Company v. Taysen, Townsend, & Company, 1896, 1 Com. Cas. 306; Nickoll & Knight v. Ashton, Edridge, & Company [1900], 2 Q.B. 298. Damages for the period of detention ought to be calculated on the basis of the probable profits which the “Irmgard” would have made as ascertained by the profits actually made by other ships in the same trade, and not on demurrage rate—“ The Risoluto,” 1883, L.R., 8 P.D. 109.

Argued for the defenders (respondents)—No doubt the “Strathfillan” was to blame, as she failed to manœuvre as required by article 19. The “Irmgard,” however, was also to blame. Her primary duty was to hold on (article 21), but when it became apparent that the collision could not be avoided by the action of the giving-way vessel alone, she ought to have taken action to aid in avoiding the collision—Regulations, articles 21, note, and 27; Marsden on Collisions (5th ed.), 453; “ The Underwriter,” 1877, 3 Asp., M. C. 361; “ The Rosalie,” 1880, L.R., 5 P.D. 245; “ The Beryl,” 1884, L.R., 9 PD 137; “ The Benares,” 1883, L.R., 9 P.D. 16; “ The City of Berlin,” [1908] P 110; “ The Koning Willem II,” [1908] P 125. It was clearly proved that when the vessels were five lengths apart the collision could not have been averted by the “Strathfillan” alone. At that point it was the duty of the “Irmgard” to act. She should have stopped and reversed. If she had, there would have been no collision. She had broken the regulations by her failure to act. It was her absolute duty to obey them. The onus lay on her to show that her failure to obey was justified by necessity—Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), sec. 419 (4); Windram v. Robertson, May 23, 1905, 7 F. 665 ( per Lord Dunedin at 671), 42 S.L.R. 602; “ The Corinthian,” [1909] P 260. The note to article 21 no doubt laid a difficult task on a master—Marsden on Collisions, p. 409; “ The Albano,” [1907] AC 193. Still the regulations clearly laid a duty upon him, and the owners were liable if he failed to perform it. This was not a case of sudden and unforeseen peril. The observations made in the cases of Hine v. Clyde Navigation Trustees ( cit. sup.) and the Bywell Castle ( cit. sup.) were not in point here. The case of Radley v. London and North-Western Railway Company, 1876, L.R., 1 A.C. 754, was also referred to. (2) The Lord Ordinary's view of damages was well founded. The pursuer had acted unreasonably in going to Geestemunde, when he could have had his vessel repaired in Aberdeen. The repairs could have been executed more cheaply in Aberdeen and with greater despatch. Four days would have been saved on the next voyage to Iceland if the vessel had been repaired at Aberdeen. The pursuers could not claim damages for detention caused by his own act—“ The Aurora” (referred to in Williams & Bruce's Admiralty Practice, 116). Moreover, the question of damages was a jury question. The Lord Ordinary's award should not be disturbed unless unjustifiable in the light of the evidence— Wilson v. Hicks, 1857, 26 L.J., Ex. 242; Duff & Company v. Iron and Steel Fencing and Buildings Company, December 1, 1891, 19 R. 199, 29 S.L.R. 186. The Lord Ordinary had assessed the damages for detention on too high a scale. A demurrage rate of £6 to £10 per day was the proper measure of damage.

At advising—