Scottish Court of Session Decisions

The Regulations for Preventing Collisions at Sea, made by Order in Council of 13th October 1910 (Statutory Rules and Orders 1910, p. 457), provide:—

“ Steering and Sailing Rules.

Preliminary.—Risk of Collision.

Article 19—When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other. …”

Article 21 and note are quoted supra in rubric.

Article 23—Every steam vessel which is directed by these rules to keep out of the way of another vessel shall on approaching her, if necessary, slacken her speed, or stop, or reverse.

Article 27—In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.

Article 29—Nothing in these rules shall exonerate any vessel, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”

Cie des Forges et Acieries de la Marine et d'Homecourt, Paris, and Messrs Boyd, Jameson, & Young, W.S., Leith, their mandatories, pursuers, brought an action against Messrs George Gibson & Company, Limited, registered owners of the steamship “Gala” of Leith, defenders, for £1700, 17s. 4d., being damages for the loss of a cargo of coal of which the pursuers were the consignees, and which was being carried from Newcastle-on-Tyne to Rouen on the s.s. “Eidsvaag,” which was sunk in collision with the s.s. “Gala” belonging to the defenders on 3rd February 1918.

The parties averred—“(Cond. 3) The s.s. ‘Eidsvaag’ left the Tyne on her voyage to Rouen at 8 a.m. on Saturday, 2nd February. All went well till shortly after midnight of that date, when the ‘Eidsvaag’ was sailing on a course S.S.E. 1 2 E. at a slow and reduced speed in view of the weather conditions as after mentioned. The captain of the ‘Eidsvaag’ and the second officer were together on the bridge and an able seaman was at the wheel. The night was very dark and somewhat hazy, with occasional showers of rain. There was a light breeze from the southeast. About twenty minutes after midnight on the morning of 3rd February the master of the ‘Eidsvaag’ observed a ship's light about three points on his starboard bow, and on examining same with his night glasses he made out the masthead light and also the green light of a vessel, which afterwards turned out to be the ‘Gala’ proceeding on an opposite and parallel course to his, and at a distance not exceeding half a mile. The ‘Eidsvaag’ continued her course, and if the ‘Gala’ had also continued her course, as she ought to have done, both vessels would have passed clear of each other on the starboard side. The ‘Eidsvaag’ had both her side lights exhibited, and they were burning brightly, and if the ‘Gala’ had been keeping a proper lookout she would have seen the ‘Eidsvaag's’ green light on her own starboard bow at a distance of at least half-a-mile. Shortly after the master of the ‘Eidsvaag’ had picked up the masthead and green light of the ‘Gala’ the ‘Gala’ suddenly altered her course to starboard under a port helm and exhibited her red light to the ‘Eidsvaag,’ but failed to give any sound signal of such alteration to the ‘Eidsvaag.’ The ‘Gala’ was then not more than two cable lengths from the ‘Eidsvaag,’ and was approaching her at a high speed, and was heading for her starboard side. The ‘Gala’ being in ballast, and with wind and tide behind her, was travelling very fast. The master of the ‘Eidsvaag’ at once gave two short blasts of his whistle and ordered the helm hard a-starboard as the only manœuvre which afforded a chance of avoiding a collision. The ‘Gala’ did not reply to the ‘Eidsvaag's’ two-blast signal, which the master of the ‘Eidsvaag’ accordingly repeated, and almost immediately after he had given his second two-blast signal the ‘Gala’ crashed into the starboard side of the ‘Eidsvaag’ about amidships, her stem penetrating nearly to No. 2 hatch. Immediately after the collision the ‘Gala’ backed out, leaving a gaping hole in the starboard side of the ‘Eidsvaag’ through which water poured into the vessel, and the ‘Eidsvaag’ immediately began to sink. The master of the ‘Eidsvaag’ ordered his crew to take to their boats, and during the operation of launching one of the boats the second officer of the ‘Eidsvaag’ fell into the sea and was drowned. The ‘Eidsvaag’ sank in about an hour after the collision, and her master and crew were taken on board the ‘Gala’ and were landed at Newcastle. With reference to statements in answer, it is believed to be true that those in charge of the ‘Gala’ imagined that the light of the ‘Eidsvaag’ was a light marking the Smithic Buoy. Denied that the ‘Gala’ altered her course by porting her helm when a mile or so from the ‘Eidsvaag.’ Explained that she did so when not more than 2 1 2 cables off. Quoad ultra the statements in answer, in so far as they do not coincide herewith, are denied. ( Ans. 3) Denied. Explained that the s.s. ‘Gala,’ which was on a voyage in ballast from Dunkirk to Leith, was on the early morning of 4th February 1918 near Flamborough Head,

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when those on board of her, who were in the slightly hazy weather then prevailing looking out for North Smithic Buoy which marks the eastern limit of the shallow water in the neighbourhood of the Head, observed a dim light very low down in the water distant from about a mile to a mile and a-half, and bearing about 3 4 of a point on their port bow. The master examined the light through glasses, and came to the conclusion from its position that it was the North Smithic Buoy Light. As the water is dangerously shallow to the westward of this buoy, the helm of the s.s. ‘Gala’ was ported, and after her head had gone off about 3 points she was steadied on the course N. by E. 1 2 E. (compass). The bearing of the said light, thought to be on the North Smithic Buoy, was then taken, and it was found to be bearing N. by W. 1 2 W. and still distant between one and one and a-half miles. The s.s. ‘Gala’ proceeded for a short time until she was about a mile distant from the light in question, when the master, who was watching it closely through his glasses, perceived that it was not altering its bearing as he had expected, and made out that it was the green light of a vessel which was not showing any masthead light, and which was, it is believed and averred, proceeding with her side lights reduced in strength. As this vessel and the s.s. ‘Gala’ were crossing vessels, and the former had the latter on her starboard bow, the master of the s.s. ‘Gala’ maintained his course and speed. The two vessels continued to approach each other without any appreciable alteration of bearing until the master of the s.s. ‘Gala’ saw that the other vessel, which turned out to be the s.s. ‘Eidsvaag,’ was not keeping out of the s.s. ‘Gala's’ way by porting her helm and passing under the ‘Gala's’ stern, as it was her duty to do, and that it would be necessary for him to take action if a collision was to be avoided. He accordingly put his helm hard a port and at the same time gave one short blast on the whistle. The ‘Eidsvaag’ replied to this signal with two short blasts. The s.s. ‘Gala’ immediately repeated the one short blast signal, to which the ‘Eidsvaag’ again replied with two short blasts. The ‘Eidsvaag,’ however, did not starboard her helm as she had signalled she was about to do, but continued to cross the course of the ‘Gala,’ and eventually, notwithstanding that shortly before the collision the engines of the ‘Gala’ were stopped and put full speed astern, got across the course of the ‘Gala’ with the result that the latter vessel struck her a little aft of the bridge. After the vessels had cleared the ‘Eidsvaag’ continued to go ahead for about half a mile, and the ‘Gala’ thereupon steamed alongside, hailed those on board of the ‘Eidsvaag,’ and took her crew on board the ‘Gala.’ The ‘Eidsvaag’ sank about an hour after the collision. The second officer of the ‘Eidsvaag,’ who was in charge of her navigation at the time of the collision, was drowned. (Cond 4) The said collision was entirely due to the fault of the defenders, or those for whom they are responsible, who failed to observe the rules of good seamanship. No proper lookout was kept on board the ‘Gala.’ Had those in charge of the ‘Gala’ been keeping a good, or in any event an efficient lookout, as they were bound to do, they would have seen that the light of the ‘Eidsvaag’ was a moving and not a stationary light. Furthermore, those in charge of the ‘Gala’ were at fault in navigating their vessel at an excessive speed considering the weather conditions that prevailed at the time. The respective vessels were on parallel not crossing courses, and the duty of each was to continue on her course, which duty those in charge of the ‘Gala’ failed to carry out. The said collision was solely due to the master of the ‘Gala’ porting his helm and altering his course to cross the bows of the ‘Eidsvaag,’ when the approaching vessels were so close to each other that it was impossible for the ‘Eidsvaag’ by any manœuvre on her part to avoid the collision. In so navigating the ‘Gala’ those in charge of her failed to observe the rules of good seamanship. The statements in answer are denied. Explained that when the ‘Gala’ first showed her red light to the ‘Eidsvaag,’ the vessels were so close as to compel the master of the latter vessel to resort to the manœuvre of putting his helm hard a starboard as the sole chance of avoiding a collision. ( Ans. 4) Denied. The collision was entirely due to the fault of the owners of the ‘Eidsvaag,’ or those for whom they are responsible through their failure to observe the regulations for the prevention of collisions at sea, and the rules of good seamanship. In particular (1) the two vessels being on crossing courses, and the ‘Eidsvaag’ having the ‘Gala’ on her starboard side, the ‘Eidsvaag’ was in fault in failing to keep out of the way of the ‘Gala’ in accordance with articles 19 and 21 of the said regulations; and in failing either to port her helm and pass under the ‘Gala's’ stern, which is the usual and proper manœuvre, or to starboard her helm as she approached the ‘Gala’ in conformity with the signal which she had given; (2) those on board the ‘Eidsvaag’ were in fault in failing to keep a sufficient or indeed any lookout; and (3) those on board the ‘Eidsvaag’ were in fault in failing to stop and reverse her engines when risk of collision became apparent.”

The defenders pleaded, inter alia—“3. The collision having been entirely due to the fault of the owners of the ‘Eidsvaag,’ the defenders ought to be assoilzied.”

On 7th March 1919 the Lord Ordinary ( Sands) sitting with a nautical assessor, after a proof, found—“(1) That on the occasion in question those in charge of the ‘Gala’ sighted a light at a distance of about a mile and bearing 3 4 of a point on her port bow; (2) that said light was the starboard light of the steamship ‘Eidsvaag,’ but was at the time mistaken by the master of the ‘Gala’ for the light on the North Smithic Buoy; (3) that on observing said light the ‘Gala’ went to starboard and steadied on a course N. х E. 1 2 E. (compass); (4) that this change of course on the part of the ‘Gala’ was not attended with danger if thereafter

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both vessels had been properly navigated; (5) that the vessels were at the time the ‘Gala’ sighted the ‘Eidsvaag’ on crossing courses, the ‘Eidsvaag’ having the ‘Gala’ on her starboard side; (6) that thereafter for some time both vessels kept their course and speed; (7) that the ‘Eidsvaag’ failed to keep out of the way of the ‘Gala’ by timeously porting her helm and passing under the stern of the ‘Gala’ as she ought to have done; (8) that when the vessels were just under a quarter of a mile apart the ‘Gala’ went hard a-port and came round to starboard some 5 or 6 points, finally striking the ‘Eidsvaag’ with her port bow abaft the bridge and in a slightly forward direction; (9) that on suddenly coming to observe the ‘Gala's’ red light on her starboard bow the ‘Eidsvaag’ starboarded her helm, but that the proper course was to have stopped and reversed her engines; (10) that the ‘Gala’ was in fault in failing to maintain her course and speed, and that the ‘Gala’ has failed to prove that if she had maintained her course and speed a collision would have occurred; (11) that both vessels are in law to blame for said collision: Apportions the blame two-thirds to the ‘Eidsvaag’ and one-third to the ‘Gala’: Grants leave to reclaim.”

Opinion.—“The s.s. ‘Eidsvaag'was sunk in collision with the s.s. ‘Gala’ a few miles off Flamborough Head upon the morning of 3rd February 1918 between 12 and 1 o'clock. The night was dark, and there was some haze, but there was no such obscurity as to make navigation dangerous. The conditions as to lighting were abnormal owing to the submarine danger. But the ‘Gala’ exhibited all her lights, and the ‘Eidsvaag’ her side but not her masthead light. The two vessels were steaming at approximately the same speed—8 1 2 knots. Each vessel alleges fault against the other and denies fault on her own part. (This action is at the instance, not of the ‘Eidsvaag’ but of the consignees of her cargo, but it is more convenient to speak simply of the vessels as if this were an action between them.)

The ‘Eidsvaag's’ theory of the collision is this. The two vessels were approaching green to green, which was a safe position. Suddenly the master of the ‘Gala’ made out the green light of the ‘Eidsvaag’ which owing to the state of the atmosphere was visible only at a short distance. He mistook this light for the North Smithic Buoy, and thinking he was getting into dangerous water, he suddenly ported his helm, and this brought his ship right across the course of the ‘Eidsvaag,’ which had not time to manœuvre to avoid a collision, though she starboarded her helm in an endeavour to do so. That is quite an intelligible theory, and if the statement of the ‘Gala's’ crew that they mistook the ‘Eidsvaag's’ light for the buoy is to be accepted and the rest of their evidence to be rejected, this might perhaps be accepted as the explanation of the collision. But the representation that the vessels were green to green stands upon the uncorroborated evidence of the master of the ‘Eidsvaag.’ The second mate was drowned; the man at the wheel did not see the ‘Gala’ at first, and when he saw her the light was red. The only other man on the ‘Eidsvaag's’ deck was said not to be available as a witness. But the story of the master and chief officer of the ‘Gala,’ corroborated by two seamen who were on deck, is that they saw the light of the ‘Eidsvaag’ on their port bow when she was a mile distant, and mistaking it for the North Smithic Buoy the master ported to carry his ship well out of the shoal water. Keeping an observation upon the light he saw that its bearing did not alter, and concluded that it was not the Smithic Buoy but a ship. As however the light was green on his port bow, it was his duty to keep his course, and he did so and held on for four or five minutes until, a collision being imminent, he put his helm hard-a-port, but too late to avoid the collision. There was nothing in the demeanour of any of the five witnesses that impressed me unfavourably. In these circumstances, as a matter of oral testimony, I must hold it proved that the master of the ‘Eidsvaag’ is in error when he says that he saw the ‘Gala's’ green light, and that the ‘Gala’ suddenly ported, changing green to red, when the vessels had approached very near each other.

The Dean of Faculty proposed to show that the story of the ‘Gala's’ witnesses was incredible, except upon the assumption, which is not suggested, that the ‘Eidsvaag’ was steaming twice as fast as the ‘Gala.’ Otherwise, he maintained, the evidence that the ‘Eidsvaag’ maintained the same bearings from the ‘Gala’ up to almost the moment of collision cannot be true. The matter is somewhat technical, but I think that I understand his argument. The course which the ‘Eidsvaag’ had set intersects the course which the ‘Gala’ says she set, at a certain point. This point of intersection must be the point of collision (approximately, for there was a final porting of the ‘Gala’ and starboarding of the ‘Eidsvaag’ at the last moment). Now if a point be assumed on the line of the ‘Gala's’ course as the point where this course was set on the ‘Gala’ sighting the ‘Eidsvaag,’ if the ‘Gala's’ original course be laid off by a line passing through that point, and a bearing three-quarters of a point on the port bow of a vessel on that (the Gala's original course) be taken, the intersection of this bearing with the ‘Eidsvaag's’ course gives the position of the ‘Eidsvaag’ at the moment when she was sighted by the ‘Gala.’ This position, it is said, is double as far from the point of collision as is the position postulated for the ‘Gala’ when she sighted the ‘Eidsvaag.’

Upon the assumption, which is not matter of definite evidence, but is capable of expert verification, that the result is as the Dean of Faculty states, the validity of the argument appears to me, in view of the nicety of the angles, to depend upon all the data being strictly accurate and not approximate only, viz.—the course of the ‘Eidsvaag,’ the original course of the ‘Gala,’ the new course of the ‘Gala,’ the bearing of the ‘Eidsvaag's’ light from the old course of the ‘Gala,’ and the fixity of the bearing

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during the time that intervened before the collision. There is no technical evidence upon the matter, and no chart showing the course, the bearings, and the angles. These matters must be left to the nautical assessor, and I am bound by his opinion, which is negative of this argument.

I am accordingly of opinion that the ‘Eidsvaag’ has failed to displace the evidence that the general course of events up to the collision becoming imminent was as the ‘Gala's’ witnesses have deponed. Accordingly 1 must hold that the ‘Eidsvaag’ was at fault in not having observed the ‘Gala’ as an approaching vessel showing red to green throughout.

The red light upon the ‘Eidsvaag's’ starboard bow indicated a crossing vessel so near that there was danger of collision. In these circumstances, in accordance with the regulations, it was the duty of the master of the ‘Eidsvaag’ to keep out of the ‘Gala's’ way, and the proper manœuvre was to port his helm so as to pass under the stern of the approaching vessel. His explanation for not having done so is that the collision was so imminent when he first saw the red light that he had to do the best he could irrespective of rule, and that the best chance of avoiding a collision was to bear away by starboarding his helm. On the assumption that the position of matters was as the master states, I should hesitate to affirm that if the only choice was between porting and starboarding his helm the master of the ‘Eidsvaag’ is to blame for starboarding. But I am advised by the nautical assessor that neither course was the proper one in the circumstances, and that it was the proper course for the master of the ‘Eidsvaag,’ on suddenly observing a vessel showing red on his starboard bow, which he deemed he could not now avoid by porting, to have reversed his engines.

If the ‘Eidsvaag's’ story of what occurred were accepted, I should regard it as a difficult question whether failure to stop and reverse could be accounted a fault although it might have been the best course to have taken. The ‘Eidsvaag's story is that a vessel passing apparently safely green to green suddenly ported and made straight at her. Some allowance must be made for ‘a master who does what seems to him best on the spur of the moment under such conditions.

In holding the ‘Eidsvaag’ at fault I proceed upon the finding that the two vessels were approaching throughout green to red, that the atmosphere was not such as to render it impossible to observe this at a safe distance, and that as the ‘Gala’ showed red it was the duty of the ‘Eidsvaag’ to keep out of her way.

I turn now to the question whether the ‘Gala’ was at fault. [ His Lordship here dealt with grounds of fault with which this report is not concerned.]

There remains, however, the question whether the ‘Gala’ was at fault in her second porting when she put her helm hard-a-port immediately before the collision. It is maintained that the ‘Gala’ was not justified in porting her helm when the danger of collision appeared, and that but for this action the collision would not have occurred. It is not necessary for the ‘Eidsvaag’ to establish this latter if she is right as to the impropriety of porting the helm. It is for the ‘Gala’ to show that maintaining her course could have made no difference. This she has not done. Having regard to the courses and speed of the vessels, to the place at and direction in which the ‘Gala’ struck the ‘Eidsvaag,’ to the facts that she struck her with her port bow and that she had answered the helm some five or six points, and to the time which elapsed between the porting and the collision, a matter I shall deal with later, it appears to me that the ‘Eidsvaag’ would have cleared the ‘Gala's’ course if the ‘Gala’ had not ported. But it is not necessary to affirm this, for the reason I have indicated.

The rule as to the duty of a vessel which has to keep her course is clear, and the rigidity with which it must be adhered to has been more than once authoritatively enunciated. When a vessel finds a crossing vessel on her port bow she must keep her course and speed. She is not justified in altering her course because there appears to be a danger of collision and it is deemed more likely that it will be avoided by a deviation. An alteration of course is warranted only in the last moment when it appears that a collision is inevitable if the course be maintained. The onus is on the ship which has altered to justify the alteration, and the onus is severely interpreted.

I am advised that the ‘Gala’ was not justified in porting her helm in the circumstances disclosed in the evidence. This opinion is not, however, binding upon me, as it proceeds upon a certain view of the evidence as to the distance between the ships when the ‘Gala’ ported. I understand that the nautical assessor takes it as approximately a quarter of a mile as spoken to by Hutton, the man at the helm of the ‘Gala.’

The direct evidence stands thus—The master and the first officer of the ‘Gala’ put it at about two ship's lengths; Hutton the helmsman puts it at less than a quarter of a mile, which I must interpret as just under a quarter of a mile. The master's story of what happened between the porting and the collision is as follows:—‘I put my helm hard a-port and gave one short blast of the whistle. The other vessel proved to be a steamer and gave two short blasts of her whistle. I immediately gave another short blast and she gave two short blasts, and just about that instant the black loom of her hull came up. She gave two blasts, indicating that she was directing her course to port on a starboard helm. (Q) As far as you could see, did she go to port at all?—(A) I could not say what she did; I only know that she indicated that she was going that way. As the vessel came closer I then gave the order to the engine-room “Full speed astern.” That order was acknowledged and the engines reversed. That was just as I saw the loom of the other vessel, just a second or so afterwards, when I saw that we

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were getting dangerously close. I do not think it would have been wise for me to have reversed the engines sooner than I did, because if he had done what he ought to have done and I had reversed I would only have been hindering him instead of assisting him, as I did by putting the helm hard a-port and giving one short blast. Notwithstanding my reversing it was impossible to avoid the collision; I did all I possibly could to avoid a collision. My vessel ran on and struck the other vessel abaft the bridge.’

Now I confess that all this—porting the helm, one blast, two in answer, one again, two in answer again, seeing the loom of a vessel, ordering reversing, order acknowledged, engines reversed—suggests to me more time than would have been available if the two vessels had been only two ship's lengths apart and approximately approaching each other at eight and a half to nine knots an hour when the helm was ported. Then again, the ‘Gala’ struck the ‘Eidsvaag’ abaft the bridge with her port bow, the stem of the ‘Gala’ being directed nearly at right angles but slightly forward towards the ‘Eidsvaag's’ bow. This shows that the ‘Gala’ must have paid off five or six points to port from her course immediately before the collision. This again is suggestive of more than one to one and a half ship's lengths of steaming between the porting and the collision. The master of the ‘Gala’ puts it thus—‘I saw that I would have to do something to assist her to port her helm, so I put my helm hard a-port and gave one short blast of the whistle.’ It was the duty of the ‘Eidsvaag’ to keep out of the ‘Gala's’ way, and if the ‘Gala’ had been timeously observed the proper manner of discharging that duty was for the ‘Eidsvaag’ to have ported and passed under the ‘Gala's’ stern. This, I understand, is what the master of the ‘Gala’ refers to in the above statement. He thought that the ‘Eidsvaag’ would attempt this manoeuvre, and that by porting he would assist her. But as I read the regulations and the relative decisions the master of the ship which has to give way must assume, but the master of the ship which has to keep its course may not assume. The former must assume that the other ship will keep her course, the latter must keep his course and assume nothing as regards the action of the crossing ship.

I have come, though not without reluctance and hesitation, to the conclusion that the master of the ‘Gala’ has failed to discharge the onus upon him to show that he was justified in departing from the regulations and failing to maintain his course and speed.

In conformity therefore with the foregoing opinion I must hold that both vessels were at fault.

In apportioning blame for this collision I must of course proceed upon what I have found proved, without giving any effect to conjectural doubts as to whether, as regards either vessel, the evidence fully and completely corresponds with the actual facts. In this view I must hold that the ‘Gala’ was placed in a position of difficulty by serious fault on the part of the ‘Eidsvaag,’ and that the ‘Gala’ committed an error in a sudden effort to extricate herself from this difficulty. Upon this footing, in accordance with a recent precedent, I might have been disposed to apportion three-fourths of the blame to the ‘Eidsvaag’ and one-fourth to the ‘Gala.’ There is, however, a consideration which leads me to a certain modification of this conclusion. The fault of the ‘Gala’ was not a wrong exercise of discretion in a position of sudden difficulty, but the exercise, albeit in a moment of anxiety, of discretion under circumstances, according to my findings, where the statutory rules do not allow any exercise of discretion. I apportion the blame two-thirds to the ‘Eidsvaag’ and one-third to the ‘Gala.’”

The defenders reclaimed, and after hearing counsel and making avizandum, the Judges of the Second Division, on 2nd December 1919, appointed the cause to be argued by one counsel on each side before themselves and three Judges of the First Division, and further directed that at the hearing their Lordships should have the assistance as nautical assessors of Captain P. W. Tait of Leith, and Captain William Grieve of Aberdeen.

Argued for the reclaimers—The pursuers' case was based on the assumption that the vessels were on parallel courses, whereas the ground of fault was based on the finding that the vessels were on crossing courses, which was not averred. The first point at issue therefore between the parties was whether the pursuers could win on an alleged fault of the defenders which was not averred by the pursuers on record, and which was only established at the proof in the cross-examination of the defenders' witnesses. To hold this would be to contravene the rule that a party suing can only recover secundum allegata et probata— The “Tasmania” 1890, 15 A.C. 223; The “Ann,” 1860, Lush, 55; The “Memnon,” 1889, 6 Asp. 488, per Lord Herschell at p. 490; Nitrate Producers Steamship Company, Limited v. Short Brothers, October 30, 1919, Lloyd's List, vol. i, No. 3, p. 74, per Bankes, J. Scottish practice followed English Admiralty practice in this matter— Owners of the “Thames” v. Owners of the “Lutetia,” 1884, 12 R. (H.L.) 1, per Lord Watson at p. 10, 9 A.C. 640, 21 S.L.R. 716. The case of Bile Beans Manufacturing Company, Limitedv. Davidson 1906, 8 F. 1181, 43 S.L.R. 827, was not in point as an authority contra, because that case was based on the rule that a party seeking relief could not obtain it if his case was based on fraud. 2. In any event there was no presumption of fault through failure to observe the regulations in the present circumstances. The Maritime Conventions Act 1911 (1 and 2 Geo. V, cap. 57), section 4 (1), had repealed section 419 (4) of the Merchant Shipping Act 1894 (57 and 58 Vict cap. 60), creating such a presumption of fault. The test accordingly now was what a prudent seaman, having in view article 21 of the Rules for Preventing Collisions at Sea and the relative note, would in the circumstances do when he saw that a collision could no longer be averted by the action of the giving-way vessel. The duty

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of the nautical assessors was to assist the Court on this question of nautical skill. The test was not one of mathematical calculation to be worked out afterwards on the facts as ascertained, but one of reasonable prudence looking to the whole circumstances of the case. The cases decided on the repealed presumption of fault rule where the decision was adverse to the infringing vessel were of little value as authorities, but those in which infringements were excused were of a fortiori force, and the principles laid down in such cases were fully applicable to cases under the present law—Marsden on Collisions at Sea, 7th ed., p. 71; The “Beryl,” 1884, 9 PD 137; The “Ceto,” 1889, 14 A.C. 670, per Lord Watson, p. 685, and Lord Herschell, 694; The “Memnon,” cit. sup., per Lord Herschell, at p. 490; The “Tasmania,” cit. sup., per Lord Herschell, p. 225, ft.; The “Albano,” [1907] AC 193; Beucker (Owner of “Irmgard”) v. Aberdeen Steam Trawling and Fishing Company, Limited, ( Owners of “Strathfillan”), 1910 S.C. 655, 47 S.L.R. 513; The “Huntsman,” 1911, 11 Asp. 606; The “Enterprise,” [1912] P 207; The “Tempus,” [1913] P 166; The “Olympic” and H.M.S. “Hawke,” [1913] P 214, and per Vaughan Williams, L.J., at p. 245, and Lord Parker of Waddington at p. 279; The “Orduna,” [1919] P. 381, and per Bankes, L. J., at p. 388, and Scrutton, L. J., at p. 393. There was, further, on the facts of the present case no failure to observe the regulations. Even if article 21 of the Rules for Preventing Collisions at Sea were to be construed as leaving nothing to discretion, but as depending on the mathematical accuracy of the captain's forecast, then even applying this test the defenders were free from blame.

Argued for the pursuers and respondents—1. It was too late at the hearing for the defenders to raise the point of procedure which they sought to raise. It should have been raised at the proof when the questions put with regard to this issue should have been objected to. As a matter of fact the point of fault of the defenders was fully argued in the Outer House without objection, and it was left open to the Lord Ordinary to decide it. The cases quoted contra were cases where the point was raised for the first time in the appeal court, and was not raised in the lower court at all. Lamont, Nisbet, & Company, 1907 S.C. 628, per Lord Ordinary Stormonth Darling at p. 630, 44 S.L.R. 490, was in some respects a similar case. When as here a defender sought to exculpate himself by showing that the pursuer was to blame, and in the course of the evidence it appeared that he had been guilty of negligence, it was incumbent on him to show that that negligence in no way contributed to the accident—Bevan on Negligence (3rd ed.), p. 142; Clyde Navigation Company v. Barclay, (1876) 1 A.C. 790, per Lord Chelmsford at p. 792, ft. 2. On the merits—The “Gala” should in the circumstances have maintained her course and speed, and should never have taken any action at all. Rule 21 was ex facie imperative and left nothing to the discretion of the captain, and it was to supersede such discretion that the rule was passed. The only exception admitted was when it was impossible for the givingway vessel by her own action to avoid collision. In these circumstances the note to rule 21 came into operation, but in all such cases it depended on the actual facts as worked out mathematically as to whether the violation of the rule was justified. The case law fell into three periods—(1) to 1873, when there was no presumption of fault, (2) to 1911, when there was a presumption of fault, and (3) after 1911, when the presumption of fault was repealed. The early cases were very important as bearing on the question of seamanship— The “Test,” 1847, 5 N. of C. 276, per Dr Lushington at p. 279; The “Vivid,” 1849, 7 N. of C. 127, per Dr Lushington at pp. 128 and 129; The “Immaganda Sara Clasina,” 1850, 7 N. of C. 582; The “Agra” and “Elizabeth Jenkins,” 1867, L.R., 1 P.C. 501, per Sir James Colvile, p. 504, ft.; The “Fenham.” 1870. L.R.,3 P.C. 212. The later cases supported the argument for the imperative character of the rule— The “William Frederick,” 1879, 4 A.C. 669, and per Sir James Colvile, at p. 672, mid.; The “Beryl,” 1884, 9 PD 4 and 137; The “Memnon,” 1889, 6 Asp. 488; The “Tasmania,” 1890, 15 A.C. 223; The “Saragossa,” 1892, 7 Asp. 289, per Lopes, L. J., at p. 392, ft.; The “Ranza,” 1898, 79 L.J., P. 21, per Gorell Barnes, J., p. 22, 2nd col. top; Windram v. Robertson, 1905, 7 F. 665, 42 S.L.R. 602, per Lord President, at p. 672, ft.; The “Albano,” [1907] AC 193; Beucker (Owner of “Irmgard”) v. Aberdeen Steam Trawling and Fishing Company, Limited (Owner of “Strathfillan”), 1910 S.C. 655, 47 S.L.R. 513; The “Huntsman,” 1911, 11 Asp. 606, per Bargrave Deane, J., at p. 608, 2nd col. ft.; The “Olympic” and H.M.S. “Hawke,” [1913] P 214, per Vaughan Williams, L. J., at p. 244, ft., and Kennedy, L. J., p. 269; The “Orduna,” [1919] P. 381. The “Enterprise,” [1912] P 207 and The “Tempus,” [1913] P 166, were distinguishable on the facts. The action of the defenders in this case was one of the proximate causes of the collision in the sense of the dictum of Lord Watson in Cayzer v. Carron Company, 1884, 9 A.C. 873, at p. 886, top. Reference was also made to Marsden on Collisions at Sea, p. 70, ft., and p. 75, note f.

At advising—