Scottish Court of Session Decisions

The Regulations for Preventing Collisions at Sea, 1897, inter alia, provide—Article 16—“Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines and then navigate with caution until danger of collision is over.” Article 18—“When two steam vessels are meeting end-on, or nearly end-on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other The only cases to which it” (Article 18) “does apply are when each of the two vessels is end-on, or nearly end-on, to the other—in other words, to cases in which by day each vessel sees the masts of the other in a line, or nearly in a line, with her own.

The Crown Steamship Company, Limited, registered owners of the steamship “Crown of Cordova,” pursuers, sued the Eastern Steam Navigation Company, Limited, registered owners of the steamship “Ethelreda,” defenders, for £26,000 as damages sustained by the “Crown of Cordova” in a collision with the “Ethelreda.”

The facts are given in the opinion of the Lord Ordinary ( Hunter), who after a proof on 13th July 1917 assoilzied the defenders.

Opinion.—“About ten minutes past four p.m. on Monday 24th April 1916 a collision took place off the south-east coast of Ireland between the s.s. ‘Crown of Cordova’ of Glasgow and the s.s. ‘Ethelreda’ also of Glasgow. The ‘Crown of Cordova’ is a vessel of 3471 tons gross and 2238 tons net registered tonnage, while the tonnage of the ‘Ethelreda’ is 2218 gross and 1403 net.

On 23rd April 1916 the ‘Crown of Cordova’ left Glasgow on a voyage to Santa Rosalia in the Gulf of California. On the afternoon of 24th April she passed the Tuskar Lighthouse off the south-east coast of Ireland and then proceeded on a course west-by-south magnetic. There was a strong south-south—west wind blowing with a moderately heavy sea. According to her own case and evidence the weather became foggy about four o'clock. The ‘Ethelreda’ was proceeding upon a course east magnetic. It may be taken as common ground that the density of the fog was such that the vessels did not come into sight of each other until they were only about 1 4 mile apart.

Notwithstanding the fog the ‘Crown of Cordova’ was proceeding at full engine speed until after she sighted the ‘Ethelreda.’ I am advised by the assessor that this was imprudent, and that there was nothing in the direction and strength of the wind or in the state of the sea to justify this course being followed. According to the first paragraph of Article 16 of the Regulations for the Prevention of Collisions at Sea, ‘Every vessel shall in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.’ No attempt was made by the master to take off speed when the ‘Crown of Cordova’ entered the fog at four o'clock. His explanation for not doing so is that if he had reduced his speed his vessel would not, owing to the state of wind and sea, have steered properly and might have become unmanageable. The wind, however, was not blowing a gale, but only a strong breeze some points on his port side. The evidence in support of the pursuers' contention as to the probability of his vessel becoming unmanageable appeared to me to be neither satisfactory nor convincing.

The engine speed of the ‘Crown of Cordova’ is about 9 knots an hour, and there was a 1 3 4-knot tide behind her. The master and other witnesses for the vessel ‘Crown of Cordova’ put her speed, immediately prior to the time when her engine speed was altered, at about 5 or 6 knots an hour over the ground. This is manifestly a mere estimate. Looking to the distances, according to the log, covered by the vessel in the immediately preceding 24 hours, and in 55 minutes between 2 o'clock and 2·55, I think that the master underestimates the speed, but the assessor advises me that even the admitted speed of 5 or 6 knots was in the circumstances excessive.

It appears to me to be impossible to say that the excessive speed of the ‘Crown of Cordova’ was not the cause, or at all events

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a contributory cause, of the collision, but I think that upon their own evidence those navigating that vessel committed at all events one other error.

According to the log kept by the chief officer of the ‘Crown of Cordova,’ at 4·5 p.m. a vessel's whistle was heard on her starboard bow giving one blast, at 4·7 the order to stand by engines was given, and at 4·8 p.m. slow ahead. The second paragraph of Article 16 of the Regulations provides that ‘A steam vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines and then navigate with caution until danger of collision is over.’ If the entry in the log be taken as strictly accurate there would appear to have been a contravention of this regulation. The master of the ‘Crown of Cordova,’ however—and in this he is supported by the mate—says that when the blast was heard at 4·5 he thought that it might be proceeding from the Barrels Lightship, and he sent the chief officer who was beside him on the flying-bridge to the chartroom to find out definitely what the signal from the lightship was. He gave no order to the engine-room either to stop or slacken speed. His uncertainty about the whistle increased the obligation imposed upon him, at all events, to reduce speed in the prevailing fog. Before the mate returned the captain says he heard a second whistle, and immediately thereafter he sighted the ‘Ethelreda,’ and gave an order to the engine-room to stand by, starboarded his helm, and sounded two short blasts to indicate that he was directing his course to port. There is no reference to this second blast in the log-book, and I think it not improbable that a short blast given by the ‘Ethelreda’ to indicate that she was directing her course to starboard was mistaken by the ‘Crown of Cordova’ for a full blast. Those on board the latter ship do not admit to having heard the short blast, but in my opinion it was given. In his deposition the master of the ‘Crown of Cordova’ says that when the ‘Ethelreda’ was first seen she was three points on his starboard bow. In his evidence before me he put it at one or two points. I prefer the evidence given for the ‘Ethelreda’ that when the vessels first came in sight they were practically end on. On sighting the ‘Ethelred’ the master of the ‘Crown of Cordova’ as I have just indicated ordered the engines to slow ahead and starboarded his helm. On record the pursuers (i.e., the owners of the ‘Crown of Cordova’) say that when first sighted the two steamships were proceeding upon courses which if maintained would have enabled them to pass starboard to starboard in complete safety. In the argument submitted to me for the ‘Crown of Cordova’ it was maintained that the vessels were on crossing courses. I am advised by the assessor that in neither view was the ‘Crown of Cordova’ justified in the circumstances in not stopping or in going to port. One minute after the order ‘slow ahead’ the order ‘full aster’ was given, in another minute the collision occurred. The ‘Ethelreda's' stem struck the ‘Crown of Cordova’ a practically right-angled blow about opposite the foremast. Before the latter vessel cleared the former she was struck in at least two other parts, but neither of the latter blows was struck by the stem of the ‘Ethelreda.’ These blows were struck by the bow just about the break of the forecastle. At the time of the collision the ‘Crown of Cordova’ had in my opinion much more way upon her than the ‘Ethelreda.’ If the latter vessel had been going at the speed attributed to her by the former it seems probable that the plates of the ‘Crown of Cordova’ would have been driven through.

It remains to be considered whether or not there was fault on the part of those navigating the ‘Ethelreda’ that caused or contributed to cause the collision. The complaint against that vessel that she was being navigated at an excessive speed fails. For some considerable time prior to the collision her engines were reduced to half speed and she had the tide against her. Full engine speed gives about 8 knots through the water, and half speed, as spoken to by the chief engineer, about 4 or 4 1 2 knots. As the tide was against her, her speed would be under the former of these two figures. Prior to sighting the ‘Crown of Cordova’ her speed was probably under 4 knots, and she was sounding fog-signals. When the ‘Crown of Cordova’ was sighted the master of the ‘Ethelreda’ at once stopped her engines and directed his course to starboard, giving a short blast to indicate that he had followed this course. In his evidence before me the captain said that when the ‘Crown of Cordova’ was first sighted her loom seemed straight ahead, and by porting he intended to give the vessels more room to pass port to port. Reliance was placed by the pursuers on the deposition of the master as contradicting his evidence in Court. An examination of the deposition shows that what he said was that he heard a steamer's whistle right ahead and about the same time a steamer was observed looming through the fog, but that afterwards he alleged that when he first saw the outlines of the ‘Crown of Cordova’ she had his vessel on her starboard bow. There is no necessary inconsistency between this evidence and that given before me. The loom of the approaching vessel would be visible before her outlines, and the change of the latter's course to port would soon bring about the position to which he speaks. If the vessels when they sighted each other were apparently end on, or practically so, I am advised by the assessor that the manoeuvre adopted was prudent. Even on the assumption of the vessels being on crossing courses, it would not have been prudent in the fog and with the vessels so close together for the ‘Ethelreda’ to have kept her course and speed. Observance of Article 16 of the Regulations became more imperative than the sailing rule requiring her to keep her course and speed. From the chief engineer's log it appears that the engines of the ‘Ethelreda’ were stopped at 7 1 2 minutes after 4 and 1 2 minute after they were put full astern.

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This latter order was given by the master when, after signalling that he was going to starboard, he got the ‘Crown of Cordova’ signal that she was going to port. Each vessel then signalled the other that she was going full astern, but if I read the evidence aright the signal was first given and the manoeuvre executed by the ‘Ethelreda.’ At the time of the collison the way was almost off that vessel. After the collision the ‘Ethelreda’ stood by for some time before resuming her course, but the ‘Crown of Cordova’ disappeared in the mist and was not sighted.

For the reasons I have given, responsibility for the collision rests with those navigating the ‘Crown of Cordova,’ and the defenders therefore fall to be assoilzied from the conclusions of the summons.”

The pursuers having reclaimed, the case was heard by the Judges of the Second Division along with a nautical assessor.

Argued for the reclaimers—The wrong navigation of the “Ethelreda” was alone to blame for the collision. Any fault there might be on the part of those responsible for the “Crown of Cordova” was entirely due to the error committed by the “Ethelreda” in not keeping on her course when the loom of the “Crown of Cordova” became visible, and in not continuing to do so until she could make out the latter's outline as required by Article 18 of the Regulations for Preventing Collisions at Sea. The vessels were not quite end-on, there being a difference of a point between their courses. But even if the latter vessel had been swinging there was still time to avoid a collision. The speed of the vessels had nothing to do with the collision as they sighted one another at a distance of a quarter of a mile. When the “Ethelreda” saw a ship ahead and was uncertain of that ship's course she ought to have stopped instead of porting her helm—“ The Rona,” (1873) 2 Asp. M.L.C. 182; Windram v. Robertson, (1905) 7 F. 665, per L.P. Dunedin at p. 674, 42 S.L.R. 602; “ The Constitution,” (1864) 2 Moore P.C. (N.S.) 453 at p. 455. Counsel also referred to Marsden on Collisions, 399–400.

Argued for the respondents—The “Crown of Cordova,” in steaming at full speed in a dense fog and thus acting contrary to the Regulations was to blame for the collision. The fact that owing to her construction she was unable to proceed at the reduced speed which the circumstances demanded did not suffice to absolve her from responsibility for any ill results that might ensue therefrom and she was bound to take the consequences—“ The Campania,” [1901] P 289, per Gorell Barnes, J., at p. 294. The “Crown of Cordova” was in fault for the following reasons—proceeding at full speed in a dense fog, delaying for two minutes after sighting other vessel before standing by, failure to stop, improperly starboarding her helm under Article 27 of the Regulations, failure to take way off the vessel. Article 18 of the Regulations applied here as the vessels were nearing each other practically end-on, and the “Crown of Cordova” failed to comply with it—“ The Constitution” ( cit.) per Dr Lushington at p. 456; “ The Rona” ( cit.), at p. 184; “ The Jesmond,” (1871) L.R., 4 P.C. 1; Marsden on Collisions, p. 399; “ The Vindomora,” [1891] AC 1, per Lord Herschell at p. 4. The proximate causes of the collision were the “Crown of Cordova's” excessive speed and her subsequent faulty manœuvres. Counsel also cited Crawford v. Granite Steamship Company, Limited, (1906) 8 F. 1013, 43 S.L.R. 732; “ The James Joicey,” 1908 S. C. 295, 45 S. L. R. 216.