Scottish Court of Session Decisions

William Robertson, owner of the s.s. “Cornelian,” pursuer, brought an action against the Portpatrick and Wigtownshire Joint Committee, defenders, concluding for £3500 in name of damages for injuries alleged to have been sustained by the s.s. “Cornelian” through the fault of the defenders while his ship was moored at their pier at Stranraer.

The defenders pleaded—“2. The pursuer not having suffered any loss or damage through the fault of the defenders, the defenders are entitled to be assoilzied. 3. The pursuer's loss and damage having been caused, or at least materially contributed to, by his own fault, the defenders are entitled to be assoilzied.

On 28th May 1918 the Lord Ordinary ( Hunter), after a proof, repelled the pleas-in-law for the defenders, and decerned against them for payment to the pursuer of £2149, 11s. 6d., with interest in full of the conclusions of the summons.

Opinion, from which the facts of the case appear:—“In this action the pursuer, who is the owner of the s.s. ‘Cornelian’ of Glasgow, sues the proprietors of the railway pier at Stranraer for damages in respect of injuries sustained by that vessel in the following circumstances:—On 30th December 1916 the s.s. ‘Cornelian’ arrived at Stranraer in order to take in bunker coals. The master of the vessel was directed by one of the defenders' officials to move his vessel to a berth on the east side of the railway pier. An interview took place between the master of the vessel and the stationmaster, who acts as piermaster. The latter explained that the berth was required for a destroyer which was expected to arrive during the night, and informed the shipmaster that he would require to shift about seven o'clock. As the intention of the master of the vessel was to execute some slight repairs upon the condensers of the engine as well as to take in bunkers he asked the harbourmaster if he might remove his vessel to a berth lower down the harbour. Permission to do this was given by the piermaster. There is a discrepancy between the evidence given on the two sides as to what passed at this interview. I saw no reason in the demeanour of the witnesses to assume that intentionally dishonest evidence was given on either side. The piermaster says that he distinctly informed the master of the vessel that if he moved his vessel to a lower berth the latter would accept all risk of any injury being sustained by his vessel. The master of the vessel says that risk was not referred to at the interview, but that he was told that the vessel might ground, and that owing to the construction of his vessel he did not anticipate any untoward result from this. Whatever the exact form of words employed by the piermaster may have been, I am satisfied that what both parties had in mind was the ordinary risk or liability of the vessel taking the ground. The harbourmaster did not call the attention of the master of the vessel to any special risk which the vessel would run from occupying a lower berth from that opposite the crane for loading coals, and the master of the vessel did not contemplate any other risk than that of taking the ground on what was understood to be a soft bottom.

The vessel was not moved as soon as it was anticipated that she would be. The master of the vessel went into the town upon business, and the harbourmaster made a visit to the ship about eight o'clock. He made complaint that the vessel had not been shifted. The vessel, however, had grounded, and he was informed of this, and also that the master had not returned to his vessel. The master had an interview with the harbourmaster at his office, and promised that the vessel would be moved when the state of the tide allowed of this being done. On returning to his vessel the master gave instructions that the vessel should be shifted as he had promised and then retired to rest. I think that the recollection of the piermaster as to what occurred at his interview with the mate in the master's absence and subsequently with the master is in fault, and I accept the account given by the representatives of the ship as being substantially accurate.

About two o'clock in the morning the vessel was moved to the lower berth by warping her along the pier. A request for this had been previously made by a representative from the destroyer, who was accompanied by the piermaster's deputy. The act was, however, done in fulfilment of the previous instructions given by the defenders' piermaster. At a later hour, about 5 a.m. on the morning of the 31st December, a further request was made from the destroyer that the ‘Cornelian’ should further alter her berth. By this time the ‘Cornelian’ had taken in her bunkers and completed the repairs that had to be made. It was therefore resolved that the ‘Cornelian’ should leave the berth and proceed to anchor in the bay with a view to resuming her voyage as soon as possible. After steam was got up the mooring ropes of the ‘Cornelian’ were cast off and her engines were used to enable her to leave the pier. This was about 7 a.m. Shortly after the engines of the ‘Cornelian’ were started they came to a standstill through some manilla rope and wire cable getting entangled in her propeller. It was found impossible to get the obstruction removed at Stranraer, and the vessel was towed to Bowling where the damage which she had sustained from her propeller being fouled was repaired.

The material which fouled the ‘Cornelian's’ propeller was part of certain moorings which stretched from the pier to a fluke anchor situated in the bay a little

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distance from the pier. Approximately the moorings consisted of three fathoms of chain, next the anchor, three fathoms of wire rope, and about three fathoms of manilla rope. The rope is for convenience in pulling up the wire rope and cable which should lie on the bottom. The wire rope is not as heavy as the chain. The wire rope will tend to roll up and may not be entirely on the bottom although the chain is.

The pursuer maintains that the defenders are liable to him in damages in respect that their piermaster was negligent in allowing the ‘Cornelian’ to go to lower berth without informing her master of the presence of the moorings and of the consequent risk she ran of fouling the propeller if he started his engines. The obligation imposed upon the managers of a harbour is, as explained by Lord President Inglis in Thomson &c. v. Greenock Harbour Trustees, 1875, 3 R. 1194, at 1200, 13 S.L.R. 155, to use reasonable diligence to prevent the occurrence of injuries to vessels frequenting the harbour. In my opinion the harbourmaster of the defenders failed to use such reasonable diligence. In cross-examination he was asked ‘Isn't there a risk of fouling your propeller if you go into an area where there are wire ropes about?’ His answer was that the shipmaster ‘did not need to work his propeller at all.’ Then he admitted that it is dangerous for a ship to work its propeller in a region where there are wire ropes and that he knew that the region was dangerous for the master of the ‘Cornelian’ if he worked his propeller. His only justification for not telling the master of the ‘Cornelian’ not to work his propeller or that the ropes were there was that it was the shipmaster's business. That seems to me to be an unjustifiable position to take up, particularly as he had no reason to suppose that the master knew of the presence of the moorings or of their nature.

The defenders maintained that they were not liable to the pursuer because there was a special arrangement made between their piermaster and the shipmaster whereby all risk for any injury which the ‘Cornelian’ might sustain from removing to the lower berth was to be on the ship. In Pyman Steamship Company v. Hull & Barnsley Railway Company, 1915, 2 Q.B. 729, the owners of a graving dock contracted with the owners of a vessel for the use of the dock upon the footing that the latter should use the dock at their own risk, it being expressly provided that the owners of the graving dock should not ‘be responsible for any accident or damage to a vessel … whilst in the graving dock, whatever may be the nature of such accident or damage, or howsoever arising.’ Owing to the negligence of the dock owners the blocks upon which the keel of a vessel rested were uneven in height and in consequence she suffered damage. In an action brought by the owners of the vessel to recover the amount of this damage from the owners of the dock it was held that the latter were not responsible in consequence of the terms of their contract. The defenders maintained that what passed at the interview between their piermaster and the master of the s. s. ‘Cornelian’ amounted to a special contract similar to that which existed in Pyman's case. In my opinion, however, there was no such contract concluded in the present case. All that occurred was that the captain understood that his ship was liable to ground on a bottom which in view of the construction of the ship exposed the vessel to practically no risk of damage.

The defenders further contended that the pursuer could not recover, as the captain of his vessel knew or ought to have known of the presence of the moorings, and ought not to have used his propeller. If the captain had known of the moorings I think it would have been an imprudent act on his part to use his propeller at the time when he did so. I am satisfied, however, that he did not know of the existence of the moorings. He does not appear to have observed the rope attached to the railing, and it does not appear to me that if he had there was anything in the circumstance of a rope attached to the pier railing, and apparently dropping over the harbour wall into the water to cause him to suspect the existence of the moorings.

A further point was taken by the defenders that the master of the vessel ought not to have left his berth at the pier upon his own steam but should have warped himself out. If the defenders had intended to make a point about this they should have made a definite case against the vessel upon record. I am therefore not entitled to give effect to this contention as argued to me, but I cannot think that it is imprudent seamanship on the part of a master to leave a tidal harbour by using his propeller. On the evidence it is proved that the vessel was afloat and not aground when the engines were started. I propose to repel the defences.

[ His Lordship then dealt with the question of damages,]”

The defenders reclaimed, and argued—The evidence showed that there was a special contract between the defenders and the pursuer excluding the defenders' ordinary obligations and throwing the whole risk of his actings upon pursuer. But if there was no special bargain the danger in question was of such a nature as to be obvious to any competent shipmaster, and when he used his propeller in such circumstances he must be held to have taken the risk. In any event there was contributory negligence, for the shipmaster ought to have made inquiries and taken soundings, and should not have used his propeller, or if he did use it should have gone out at high water. The following authorities were referred to— Pyman Steamship Company v. Hull and Barnsley Railway Company, [1915] 2 K.B. 729; Thomson v. Greenock Harbour Trustees, 1875, 3 R. 1194, 13 S.L.R. 155; s.s. “Fulwood” Limited v. Dumfries Harbour Commissioners, 1907 S.C. 456 and 735, 44 S.L.R. 320 and 566; Mackenzie v. Stornoway Pier and Harbour Commission, 1907 S.C. 435, 44 S.L.R. 350; Niven v. Ayr Harbour Trustees, 1898, 24 R. 883, 34 S.L.R. 660, 25 R. (H.L.) 42, 35 S.L.R. 688; Mair v. Aberdeen Harbour Commissioners, 1909 S.C. 721, 46 S.L.R. 491.

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Argued for the pursuer (respondent)—None of the arguments for the defenders were to be found upon the record, and they had not been dealt with by the Lord Ordinary. The pursuer had been invited by the defenders to go where he had gone, and if so it was their duty to take reasonable care to keep him safe. They had failed in that duty— The Queen v. Williams, 1884, 9 A.C. 418, at p. 423, and per Sir Richard Couch at p. 432 applied. Pyman's case was distinguishable.

At advising—