Scottish Court of Session Decisions

The Ellerman Lines, Limited, London, owners of the s.s. “City of Naples,” brought an action against the Trustees of the Harbour of Dundee, concluding for payment of £250,000 damages in respect of the collision of the “City of Naples with the wreck of the s.s. “Clan Shaw” in the estuary of the Tay.

The facts of the case as narrated in the opinion ( infra) of the Lord President were as follows:—“The ‘City of Naples’ bound for Dundee arrived off the entrance to the Firth of Tay on the morning of 15th April 1919, anchored about 3 sea miles to the S.E. of the Fairway Buoy at 12·37 a.m. apparent ship's time, or 1·37 a.m. British summer time. The following local circumstances appear from the Admiralty chart, which was in the master's hands, and are necessary to the understanding of the incidents which led to the present action. The entrance to the Firth of Tay is opposite Buddon Ness, and is approached from the sea by a buoyed fairway whose general direction is E.S.E. from Buddon Ness, but inclining more to the E. as it proceeds, until about 1 1 2 sea miles from Buddon Ness it turns due E. The buoys employed to indicate the limits of the fairway are black can buoys to the southward and red conical buoys to the northward. The furthest seaward pair of black and red buoys defines the entrance into the buoyed fairway from the sea. The entrance is 3 5ths of a sea mile (3400 feet) wide. Its middle point is distant from Buddon Ness 3 sea miles to the E.S.E., and is on the projection of a line known as the line of leading lights drawn through the high and low lights of Buddon Ness. On or just to the northward of the projection of this same line to seaward, at a point 3 4 of a sea mile from the middle point of the entrance into the buoyed fairway, there is placed a lighted bell buoy painted in black and red horizontal stripes. This is what is known as the Fairway Buoy, or (on the chart) the Tay River Buoy. It will be seen that it is situated about 3 3 4 sea miles E.S.E. from Buddon Ness, and therefore about 13 sea miles from the port of Dundee. It is the first sea mark which presents itself to the eye of the mariner who approaches the Firth of Tay from the sea; and provided always that its local significance is known to him from prior experience of navigation in the estuary or from information gathered from charts or sailing directions it is an important aid to him in finding his way to the entrance of the buoyed fairway and so into the Firth. The bar of the Tay estuary, which connects the Gaa Sand and the Gaa Spit on the north with the Abertay Spit and the Abertay Sand on the south, crosses the buoyed fairway a little inside the entrance, diagonally from N.E. to S.W. The minimum depths of water on the bar occur on this diagonal, 20 feet of depth south of the line of leading lights, 23 feet of depth north of it. The master of the ‘City of Naples’ had never been up the Tay to Dundee before. Pilotage is not compulsory in the Tay, at any rate it was not compulsory in April 1919. But the roaster desired the services of one of the pilots licensed by the defenders under their statutory powers. At 10 o'clock apparent ship time, or 11 o'clock British summer time, the tide having begun to flow about an hour and a half before, and no pilot having

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appeared in answer to the master's signals and wireless, he decided to find his way in himself. He accordingly hove anchor and proceeded full speed to the Fairway Buoy, passing round it by the northward at 10·40 apparent ship's time, or 11·40 British summer time. At this point the speed of the ship was reduced. Five minutes afterwards the ‘City of Naples’ struck a submerged wreck-the wreck of the ‘Clan Shaw.’ Having no knowledge of local conditions derived from previous experience of navigation in the estuary, the master was dependent on the information available to him (1) from study of his chart, sailing directions, and the like, and (2) from observation, particularly of the sea marks afloat, presented to his look-out. The information available to him in these ways with regard to the submerged wreck was as follows. First ( as regards chart, sailing directions, and the like)—there was marked on the master's chart, which was corrected up to 14th January 1919 (three months back), the site of the wreck, indicated by the usual wreck-symbol with the words ‘Wreck 1917’ printed near to it. The site thus indicated was at a point between the Fairway Buoy and the entrance of the buoyed fairway, half a sea mile inside the Fairway Buoy, and less than a cable's length to the northward of the line of leading lights. There were also marked on the chart two wreck-marking buoys coloured green, the distinctive colour adopted for such buoys both by the Commissioners of Northern Lighthouses and by the General Lighthouse Authorities of the United Kingdom, and recognised in maritime usage (North Sea Pilot). These two wreck-marking buoys were shown as conical in shape and lighted, and as being placed on a line just to the southward of, and nearly parallel to, the line of leading lights. On the chart they formed along with the wreck-symbol an isosceles triangle, whereof the base (extending between the two buoys) was rather longer than the sides (extending between the wreck-symbol and the buoys respectively). The line on which the chart showed the buoys to be placed was distant (at the point on it nearest to the wreck-symbol, which point was approximately midway between their charted sites) a cable's length from the wreck-symbol. Second ( as regards sea marks presented for observation to the look-out), there were no buoys afloat on the surface of the water on the charted sites of the two buoys just referred to. But midway between those charted sites there was afloat on the surface of the water a single wreck-marking buoy painted in the distinctive green colour, and having the word ‘wreck’ painted in white on its upper part. It stood between 4 and 5 feet out of the water, and was visible without glasses from 1 to 2 miles away. It was larger than the wreck-marking buoys used by the Northern Lights and by the Trinity House. It was, no doubt, smaller than the lighted buoys shown on the chart would have been, because lighted buoys must be of a size suitable to admit of the lighting apparatus. For the same reason they are always, or usually, conical in shape. It was can-shaped and unlighted, but this was not inconsistent with the practice of the Northern Lights or with that of Trinity House. From his anchorage between 3 and 4 miles away themasterlooked by night for the lights of the charted wreck-marking buoys, but they were not, of course, visible. In the morning both he and Hiles, a pilot whose duties ended at the Fairway Buoy, but who assisted the master on the bridge until the disaster occurred, looked for the charted buoys on the surface of the water on their way to and past the Fairway Buoy, but the buoys were, of course, no more visible than the lights they carried. The conditions of visibility at the time left nothing to be desired. Yet both the master and Hiles unaccountably failed to see the single wreck-marking buoy which was afloat on the surface of the water only half a sea mile inside the Fairway Buoy and midway between the very points where they were looking for the charted buoys. Being satisfied, however, that the charted buoys were not to be seen, and having failed to pick up the wreck-marking buoy which was actually laid midway between their charted sites, the master jumped to the conclusion that the wreck marked on the chart had been dispersed at some time during the three months which had elapsed since his chart was brought up to date. So confident was he in the reliability of this conclusion that after passing the Fairway Buoy on his port hand, he starboarded his helm in order to get the ship down to the line of leading lights, and steered a course which took him right across the position on which the wreck-symbol was marked on the chart before him. The chief officer was on the forecastle head along with the carpenter all the way from the anchorage. They were keeping what the chief officer calls an ‘ordinary general lookout’ while getting the anchor and windlass ready for letting go on arrival at Dundee. The chief officer saw the single wreck-marking buoy, after the ship had passed the Fairway Buoy, two ships' lengths away (li cable lengths), 4 points on the port bow. The length of the ship was 418 feet. He saw it was green and had some lettering on it, but he did not report it though he mentioned it to the carpenter. The carpenter was busy with the anchor at the moment, but saw the buoy shortly afterwards when it bore abeam or a little before the beam. Neither the chief officer nor the carpenter knew anything about the existence, actual or probable, of a wreck in the vicinity, and they were not specially on the look-out for wreck-marking buoys. The result of the master's conclusion, and of the course he steered in consequence, was that the ‘City of Naples’ struck the wreck about the bilge on the port bow.”

The pleadings of the parties sufficiently appear from the opinion of the Lord Ordinary ( Blackburn), who on 4th June 1920, after a proof, pronounced the following interlocutor:—“Finds (1) that the s.s. ‘City of Naples,’ while navigating the fairway of the river Tay on 15th April 1919, struck a sunken vessel and suffered severe damage; (2) that the said sunken vessel was

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the s.s. ‘Clan Shaw,’ which was sunk by a mine in January 1917; and (3) that the defenders are responsible for the buoying of the ‘Clan Shaw’ and failed to buoy the same properly, and are accordingly liable to the pursuers in the loss and damages caused to the ‘City of Naples': With these findings continues the cause to allow the pursuers to lodge in process an account of the damages claimed by them, and grants leave to reclaim. …”

Opinion.—[ After narrating the facts]— “It is under these circumstances that both parties to the action attribute the accident to the fault of the other, and I think it will be convenient to deal with the various questions raised in the case under the specific averments of fault to which these questions relate. The faults attributed to the defenders by the pursuers are set out in condescendence 12, and are—(1) That they failed in their duty to provide a proper service of licensed pilots, and in particular to see that the pilot boat was in attendance at the Fairway Buoy in accordance with their bye-laws; (2) that they failed in their duty to keep the approaches to the harbour safe for vessels using it, and in particular that they should have removed the wreck of the ‘Clan Shaw,’ or at all events should have marked its position in such a ‘way that vessels would be able to recognise the safe course to follow and to avoid running into the wreck; and (3) that knowing as they did that the ‘City of Naples’ was due to arrive on the night of the 14th-15th April, that there would be no pilot to meet her,’ and that the position of the wreck was marked in a misleading and inaccurate manner on the Admiralty charts, they should have taken special steps to have informed the master of the true position of the wreck, and of the course he should steer to avoid it.

The defenders' averments of fault are contained in their answer 11 They say that the master of the ‘City of Naples’ was to blame—(1) in entering the approaches of the Tay without a pilot, ( a) in breach of an Order by the competent military authority dated 17th November 1917 declaring pilotage to be compulsory, ( b) in breach of section 11 of the Pilotage Act 1913 in respect that there were passengers on board the ship, and ( c) without the latest available chart of the area of the Tay where the wreck was situated; (2) in failing to keep a proper look-out whereby he would have seen the buoy marking the wreck, or at least in failing to accept the warning it conveyed; (3) in failing to keep his vessel to the south of the buoy marking the wreck; and (4) in failing to attend to the warning conveyed by the marking of the chart which he was using.

The Pursuers' First Averment of Fault.— In connection with this averment the defenders raised the whole question of their duties and liabilities as the pilotage authority. In particular, they contended that the pilotage authority is a distinct and separate body from the Harbour Trustees, and that any liability for fault in connection with pilotage matters can only be met out of the pilotage dues and is not chargeable against them as Harbour Trustees. They further contended that the pilotage bye-laws only applied to the pilots, and that it was jus tertii of a shipowner to found on them, and in any event that if the bye-laws did create a duty on the pilotage authority to shipowners, the breach of that duty in this case was due to the fault and negligence of the pilots for which the defenders cannot be held liable.

So far as this case is concerned I should have disposed of this contention very shortly, for even assuming that the defenders were in fault in failing to see that the pilot boat was at the Fairway Buoy on the night of the 14th-15th April, I should have been unable to hold that this was the immediate cause of the accident. It is, no doubt, true to say that if the pilot boat had been there the accident would not have occurred, but it does not follow that the accident was a necessary and unavoidable result of its absence. But the liability of the defenders for fault as pilotage authority may be of importance in the other cases, particularly in the cargo actions, and as the question was very fully argued before me I think I must deal with it.

The defenders were incorporated as ‘the Trustees of the Harbour of Dundee’ by section 9 of the Dundee Harbour Act of 1911, and their whole powers are contained in that Act. Part XI of the Act, which includes sections 107 to 125, deals with pilotage. By section 107 the Trustees are appointed the pilotage authority within the meaning of the Merchant Shipping Act 1894, and with all the powers conferred by that Act. The section further provides that they ‘may license pilots and make bye-laws. The remaining sections in this part of the Act, with the exception of section 113, which refers to the exemption of the Trustees from liability for an accident due to the fault of a pilot, and section 125, which provides that they may license pilot vessels of such size and description as they think proper for the purpose of having pilots constantly’ in attendance within the limits of the pilotage area, are mainly concerned with regulations affecting the pilots themselves and the financial administration of the pilotage dues.

The defenders argued that under the statute the management of the pilotage business and its finances is treated as a separate and distinct business from the other matters placed under their control, and that consequently their duties and liabilities as pilotage authority, such as they may be, can only be met out of the funds contributed by the pilotage dues. They pointed out, as is the fact, that they have always administered the pilotage on this basis, that the funds have always been kept separate, and that the whole affairs of the pilotage are managed by a committee appointed under section 44 of their Act. The minutes of the pilotage committee, however, have always been reported to the Harbour Trustees and are subject to their approval. There is no doubt that if the defenders had been appointed the pilotage authority with no

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other duty than that of managing the pilotage affairs, there would be no funds other than the pilotage dues out of which they could meet their liabilities. But where, as here, they are incorporated by Act of Parliament with the general control and management of the whole port and harbour, including therein the control and management of the pilotage, I am unable to hold that, apart from express provision in the Act, their appointment as pilotage authority is to be treated as separate and apart from their appointment as Harbour Trustees, or that their general funds are not available for all the purposes included in the Act. Neither the fact that pilotage affairs are dealt with in one fasciculus of sections nor that the defenders have power to appoint a committee to manage pilotage affairs appears to me to amount to a provision that the pilotage is to be treated as a separate entity. In section 113 of their Act, which deals expressly with liability for accidents arising when a pilot is in charge of the ship, it is ‘the Trustees’ who are exempted from liability and not the pilotage authority, and by section 8 ‘the Trustees’ is defined to mean the Trustees of the Harbour acting in execution of the Act. I am accordingly of opinion that while the defenders were fully justified in trying to make the pilotage self-supporting and in managing its affairs by a separate committee, any liability for breach of duty on their part as the pilotage authority attaches to them also as the Harbour Trustees.

They next maintained that their duty as pilotage authority was confined to licensing pilots and managing the pilotage funds, and that they had no duties to shipowners other than in connection with the licensing of pilots. This argument, as I understood it, was based on the limited matters dealt with in Part XI of their private Act. But these do not exhaust their powers or duties. By section 107 of their Act they are given all the powers conferred upon pilotage authorities by the Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60). A reference to that Act (Part X, secs. 572–633) makes it clear that their jurisdiction is wider than they contend for, and undoubtedly imports certain duties to shipowners other than the mere licensing of pilots. The Merchant Shipping Act, section 584, recognises among other things the right of shipowners by appeal to the Board of Trade to have bye-laws that have been passed by the pilotage authority, and which are objectionable to the shipowners, varied, or to have additions made to the existing bye-laws. A similar provision appears in the Pilotage Act of 1913 (2 and 3 Geo. V, cap. 31, sec. 18), which is incorporated with the Merchant Shipping Act of 1894. This appears to me to dispose of the argument of the defenders that shipowners are not concerned with the bye-laws, and that it was jus tertii for the pursuers to found on their bye-law No. 12, which provides that the pilot boat shall, weather permitting, always be in the neighbourhood of the Fairway Buoy. This, the defenders said, was merely a regulation for the pilots, but it is, I think, difficult to conceive any bye-law in which shipowners could have a greater interest than one fixing the place at which they might expect to meet a pilot. Had the pilotage authority not passed any bye-law at all, or had they fixed some other meeting-place which was not approved of by the shipowners, the latter might have appealed to the Board of Trade to have matters regulated to meet their convenience. Accordingly, although section 107 only provides that the defenders ‘may’ make bye-laws, I think this power imposed upon them a duty to make such bye-laws as might be necessary in the interests of shipowners (see Julius v. Bishop of Oxford, 5 A.C. 241). Further, I think that having made a bye-law, which it must be assumed was satisfactory to the shipowners, there was a duty on the defenders to see that it was observed effectively.

Now I do not think that the defenders took sufficient steps to ensure the carrying out of the bye-law. The evidence in the case makes it clear that the reason of the pilot boat not being in its place was that the pilots have for a long time deliberately neglected it, and have been in the habit of retiring to an anchorage above Buddon Ness whenever they preferred to do so and independently of weather conditions. The practice began before and became a regular habit during the war. It appears from the log of the pilot vessel and the evidence of Reid that on the nights of 9th and 10th April the cutter was anchored up the river between the black buoys Nos. 4 and 5. On the 11th she was near the fairway buoy, and Reid says she was at the same anchorage on the 12th and 13th, but on the 14th she was even further up the river than she had been on the 9th and 10th. There is, I think, little doubt that the reason of the pilot's action had connection with the fact that the pilot vessel provided for their use by the defenders was a sailing cutter instead of a steamer. It is because of this attitude of the pilots that the defenders maintain that the failure of the pilot vessel to be at its advertised post was due to fault on the part of the pilots for which they are not responsible. On this point I was referred to section 113 of their Private Act, and to the cases of Holman ( 4 R. 406) and Shaw Saville ( 15 A.C. 429). These two cases are difficult to reconcile on the question whether a pilotage authority, being a statutory body, has power to enter into a contract of pilotage, but they both affirm the proposition that a pilotage authority is not liable for the fault of a licensed pilot after he has been engaged by the ship. This proposition, which is well established, is based on the fact that the engagement of the pilot constitutes a contract of service between the shipowner and the pilot. The provisions of section 113 of the defenders' Act also appear to me to be confined to fault on the part of the pilot while in employment by the ship. But in this case the pilots had no contract with the ship and were under the control and management of the defenders at the time when their failure to observe the bye-law took place. I think that a question of some difficulty might arise were

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the absence of the pilot boat from its station due to an isolated instance of failure by the pilots to observe the terms of the bye-law. But in this case it was the result of a long-continued practice of which the defenders were well aware. In giving evidence at a Board of Trade inquiry at Dundee on 17th November 1919, Mr Plenderleath, convener of the Pilotage Committee, made it clear that the pilotage system had broken down owing to their inability to provide a steam vessel. Now I do not think that under such circumstances the defenders can shelter themselves behind the pilots in order to avoid liability. They should either have taken steps to enforce obedience to the bye-law or have withdrawn it and advertised to shipowners that they could no longer expect to find a pilot waiting at the Fairway Buoy. The bye-laws are published by the Board of Trade, and this accounts for the statement in the ‘North Sea Pilot.’ In my opinion the defenders were in fault in not taking action one way or the other, and would be liable for damages arising immediately from the fact that the pilot boat was not at its advertised station, but as I have already said I do not think that the accident in this case can be attributed to this fact.

This being my opinion on this matter it is unnecessary to consider whether the state of the weather on the night in question was such as to justify the pilot's failure to keep station. The impression formed on my mind by the evidence was that it did not provide a sufficient excuse, though probably the statement by the witness Reid that it was ‘rather a dirty night’ was justified. But had the weather been worse than I think it was there was no evidence to show that on the morning of the 16th it was too bad to prevent the pilot vessel making an earlier start so as to get down to the Fairway Buoy on the ebb tide, although the witness Reid does say that he would not have risked the men's lives on the ebb.

The Pursuers' Second Averment of Fault—

I do not think it is doubtful that it was the duty of the defenders to keep the approaches to the harbour safe, and that the most effective way in which they could have done so would have been by removing the wreck. It was in close proximity to the fairway, and its size constituted it a serious danger to navigation. They have power to remove wrecks in terms of the Harbours Act 1847, section 56, and the Merchant Shipping Act 1894, sections 530–534, and also power to light and buoy a wreck until ‘the raising, removal, or destruction thereof’ (section 530 (2)). These powers are expressed permissively, but there can be no doubt that they import a duty, although there is no compulsion on a harbour authority to adopt the one method of protecting navigation rather than the other. If a wreck is so marked as to provide an unmistakeable warning to mariners, then in my opinion that would be sufficient to protect the authority from liability. Accordingly the first question to be considered here is whether the wreck was sufficiently marked, and on this question there is such a conflict of expert evidence that I regret that I did not have the assistance of a nautical assessor.

The only recognised system of buoying wrecks appears to be contained in certain resolutions adopted at a conference of lighting authorities held in 1883, which are far from being exhaustive. They refer to the marking of a wreck by means of a wreck vessel without any indication of the circumstances in which this method should be employed. The only references to buoys which appear to have a bearing on this case are two, which provide that wreck buoys shall be coloured green with the word ‘wreck’ painted on them in white letters, and that in the case of a wreck in an estuary, ‘when possible the buoy shall be laid near to the side of the wreck next to mid-channel.’

Now I understand this last resolution to mean that when possible the buoy should be placed between the wreck and mid-channel, and I think this was agreed to by all the witnesses. In this position the marking would indicate that the wreck was lying between the buoy and the nearest adjacent side of the channel. But the wreck of the ‘Clan Shaw’ was lying so close to mid-channel that it was not possible to place a buoy between it and the leading line, and a buoy placed on the south of mid-channel would be as appropriate to mark a wreck lying between the buoy and the south shore of the estuary as it would be to mark the ‘Clan Shaw’ lying to the north. Accordingly it appears to me that the marking of a vessel in the position of the ‘Clan Shaw’ is unprovided for so far as the regulations are concerned, and that to attempt to mark it by buoys placed to the south or even quite close to the leading line might, so far as surface indications were concerned, mislead a navigator as to the true position of the wreck.

The defenders altered the buoying of the wreck repeatedly, and I refer to Commander Mackintosh's evidence for the changes which were made, and which are conveniently shown by the chartlets produced by him. No. 289 corresponds to the marking of the chart and shows two green-lighted conical boys placed to the south of the leading line. But these buoys were removed in December 1918, shortly before the ‘City of Naples’ left England, and one green-lighted and one red-unlighted buoy took their place. Another change was made on the 7th of March, two days before the ‘Circassia’ ran on the wreck, and on 31st March 1919 the wreck' was for the first time marked with a single green-lighted buoy. On the 14th April 1919 the light on this buoy went out and it was temporarily replaced by a dumb green can buoy which was in position when the ‘City of Naples’ came to grief. Now all these buoys were to the south of the leading line, and Commander Mackintosh, who was a witness for the pursuers, is emphatic that at no time was the wreck of the ‘Clan Shaw’ properly marked. Even Mr Dick Peddie, Secretary of the Northern Lights Commissioners, who appeared as a witness for the defenders, says—‘I don't think anyone coming in from

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sea and not knowing a wreck was there would know what these buoys mean’; and again when asked what he would infer from finding two green buoys situated with an intervening space, he says—‘I should infer there were two wrecks,’ and adds that he would expect to find the wrecks further from mid-channel than the buoys.

“But while these two witnesses agree that the buoys by themselves gave no clear indication of the position of the wreck, they differ diametrically as to the purpose of buoying a wreck which is already marked by a symbol on the chart. They are each supported in their divergent views by the other expert witnesses on the same side as themselves. All the witnesses agree that an unbuoyed symbol is not itself recognised as a danger to navigation, that it gives no indication of the size of the wreck or of the position in which she is lying relatively to the channel, and that it may not even mark quite accurately the site of the wreck. In this very case it had been discovered just before the accident that the ‘Clan Shaw’ was lying 300 feet from the spot marked by the symbol on the chart. But according to Mr Peddie and his school the moment a wreck-buoy is anchored in the vicinity of a charted wreck the symbol becomes of the greatest importance, and it is to the symbol that the navigator must look to find the position of the wreck. The information on the chart being somewhat scanty and not very reliable, he is expected to launch a boat and row round till he has located the wreck for himself. This, according to Captain Ewing, is the usual practice if the navigator is in unfamiliar waters. Holding this opinion it is not surprising that the defenders' witnesses concur in thinking that a charted wreck is quite sufficiently marked by a single buoy anywhere in the neighbourhood, and as I understood them, while the buoy should preferably be green its colour or shape is not very material—a buoy of any kind near a charted wreck should put the navigator on his guard. It is apparently only in very exceptional circumstances that the Northern Lights Commissioners mark a wreck with more than one buoy, and a similar practice seems to prevail in the pilotage district of the Port of Bristol. On the other hand, Captain Mackintosh and the pursuers' witnesses say that the wreck symbol signifies nothing except a warning against anchoring in the neighbourhood of the symbol, and that the moment a wreck is buoyed it is the buoys which mark the position of the wreck and indicate to the navigator the course which he should follow. They agree that a wreck lying to the side of a channel can be marked by one buoy which then locates her as lying between the buoy and the near side of the channel, but they say that if she is towards the centre then at least two buoys and possibly more are required to locate her. If two are used they should be placed at the bow and stern of the wreck respectively. They, like the master of the ‘City of Naples,’ read the chart as indicating that the true position of the ‘Clan Shaw’ would be between the two buoys shown on the chart. Captain Metcalfe and Captain Peel, who are both at present engaged in connection with pilotage on the Mersey, say any method of buoying to be effective must cover the wreck, and that on the Mersey three and sometimes four buoys are used for the purpose. The advantages of such a method of buoying are obvious. So enthusiastic did some of the witnesses become in support of their rival theories that Captains Hart, Jones, and Thomson said they had never seen or could not recall having ever seen a wreck marked with two buoys, while Captain Mackintosh could only remember one case of a wreck marked with a single buoy. In view of the whole evidence as to the practice of buoying in different localities I find it difficult to credit these statements. I am glad that I am not required on this evidence to lay down any general proposition as to the proper way of marking wrecks.

But this is an exceptional case, and appears to me to require exceptional treatment. Mr Peddie admitted in his evidence that such cases migh occur, and he gave two instances where exceptional marking was resorted to. In 1906 the ‘Skulda’ was sunk two miles above the Forth Bridge near mid-channel and directly in the usual path of traffic. As soon as possible a wreck-marking vessel improvised out of a fishing smack was moored on the north of the wreck and remained there for ten days, when the danger was removed. During the war a collier, the ‘Bedale,’ foundered in one of the principal lines of anchorage at Rosyth. She was marked for five months with buoys at her bow and stern, and, in addition, a wreck-marking vessel was anchored at the spot. At the end of that time she was removed. These were not cases where the wrecks were marked by a symbol on the chart, but they are examples of what is required in exceptional circumstances, and the second case shows that there are circumstances in which the indication of a wreck by means of a wreck vessel is not in itself considered a sufficient protection, but the exact position of the wreck is also marked by buoys. It may also be observed that section 530 of the Merchant Shipping Act does not appear to contemplate that a dangerous wreck such as the ‘Clan Shaw’ undoubtedly was could be protected by a chart entry. The harbour authority is directed in such cases ‘to light or buoy any such vessel until the raising, removal, or destruction thereof.’ In my judgment the position of the ‘Clan Shaw’ required that her exact position should be clearly shown on the surface apart altogether from any indication conveyed by the wreck symbol in the chart. I think the original Order of the Admiralty on 5th February 1917 that the wreck should be marked by two buoys, one on each side, is conclusive evidence that it was not a case where one buoy was considered sufficient. I do not understand how the position in which the two buoys were placed could fairly be described as ‘on each side’ of the wreck. The correspondence suggests that the defenders selected the position of the buoys, and that the Admiralty merely approved by the letter of 8th

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February, but Mr Hannay Thomson says that there had been no communication between the defenders and the Admiralty prior to the receipt of this second letter, which was accepted as an order. But whoever may have been responsible for placing the buoys, it seems to me possible that a navigator reading the chart might be misled into thinking that the true situation of the wreck was between the buoys. The conclusion I have come to is that the wreck was never at any period buoyed in an effective or otherwise than a misleading manner, and that the defenders were at fault in this matter,

With one exception the changes in the buoying of the wreck were made after the Armistice had been declared, and were not due to caprice on the part of the defenders but to a shortage in the supply of buoys. During the war a number of lighted buoys had been withdrawn from their charted positions by orders of the Admiralty, and were then available for marking the wreck. But after the Armistice they had to be restored to their former places, and as it appears to have been impossible to obtain new buoys at that time, the defenders were faced with considerable difficulties as to what they should do. But a shortage of buoys did not in my opinion relieve them from their duty of marking the wreck so as to warn navigators both by night and day until it was removed— Dormont, 11 Q.B.D. 496; ‘ Utopia’ 1893 AC 492. When the ‘City of Naples’ arrived at the Fairway Buoy on the night of the 15th April, the wreck, so far as a navigator could see in the dark, was unmarked. That the defenders considered it necessary that the ‘Clan Shaw’ should be removed is clear from a correspondence between them and the Board of Trade which commenced immediately after the Armistice, and in which they contended that the duty of removing the wreck rested with the Government. Had they realised or admitted that the obligation was on themselves, the removal of the wreck would probably have been undertaken before this accident occurred.

The defenders aver that they adopted a single buoy on a suggestion by the Northern Lighthouse Commissioners that they should do so. They had applied to the Commissioners for two lighted buoys, and in his reply intimating that the Commissioners had no buoys to spare, Mr Peddie suggests that ‘after due notice it might be found possible to mark it efficiently with one buoy.’ This is a very different thing to saying that the wreck should be marked with one buoy, and Mr Peddie repudiates the suggestion that he had any intention of giving such advice.

But another question is raised in connection with this averment of fault, as the defenders also plead that the wreck was marked in accordance with the instructions of the Admiralty which absolves them from liability. The Senior Naval Officer at Dundee from 1917 onwards was Captain L. Gartside Tippinge, who was called as a witness for the defenders. On being asked in cross-examination whether the statement on which this plea is founded was true, he says, ‘Well, no, I should say it is not quite true,’ and he goes on to explain that the marking of the wreck in the first place by unlighted buoys (10th February 1917), and then by two lighted buoys (14th March 1917), were both by Order, but that all the alterations subsequent to the Armistice and commencing in December 1918 were submitted by the defenders to him for approval and were approved. It is right to say that the witness was placed in a somewhat delicate position, as the Admiralty are themselves suing the defenders for damage in connection with the cargo of the ‘City of Naples,’ but I think his evidence is fully corroborated by the correspondence produced passing between him and the defenders with reference to the alterations in the buoys.

The first Order was issued by the letter dated 5th February 1917, and the second by a letter of 2nd March 1917. Apparently at that date the immediate lighting of the buoys was considered a matter of such importance that on 9th March 1917 Captain Tippinge communicated a third Order to the defenders that the Tay was closed for traffic during the hours of darkness until the marking light buoys were placed in position. In contrast with this procedure the proposal for the next change, in December 1918, emanates in a letter from the defenders in which it is stated that the Northern Lighthouse Commissioners ‘suggest that in their opinion one buoy would be sufficient to mark the “Clan Shaw”’—a suggestion which I have dealt with already. The letter ends, ‘I shall be glad to hear whether you approve of this.’ The proposal was approved by Captain Tippinge apparently, as I understand his evidence, on no other authority than his own and because the hydrographer had intimated that ‘he had no objections.’ Somewhat similar negotiations passed with reference to the later changes, but no approval was asked or given to the substitution of a dumb buoy for a lighted one on 15th April 1919.

Now it appears to me that it is impossible to hold that these later changes were made by directions of the Admiralty to which the defenders were bound to conform, merely because they were allowed by the naval authority to carry out their own proposals, rendered necessary by other demands on their stock of buoys. Accordingly I think their fifth plea-in-law cannot be sustained.

The Pursuers' Third Averment of Fault—

Although Mr Hanny Thompson denies that he knew that the ‘City of Naples’ was expected on the night of the 14th, it is proved that in passing Flamborough Head she had signalled her destination to be reported. It was also proved that the pilots were aware that she was expected. The witness Reid says ‘I was expecting a vessel but didn't know her name’; while Gall when asked if he was aware that the ‘City of Naples’ was expected, says ‘Yes, we had word of her being due.’ He adds that a watch was kept for her. but that while

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they could have seen a blue flare they could not have seen the ship's lights from the position in which they were anchored. There is no evidence as to the source of the pilot's information, but it is clear that the ship's expected arrival must have been communicated to the defenders. Now knowing as they did that the wreck was for the first time marked with a single dumb buoy, that the ‘City of Naples’ must have left England before she could have received any notice that the two lighted buoys shown on the chart had been removed, that the ‘Circassia’ had run on the wreck very shortly before, and that the pilots were in the habit of anchoring at night up the river, I think they should either have tried to communicate in some way with the ‘City of Naples’ or have made some special endeavour to persuade the pilots to keep their advertised station on that night. The pilots were not even informed that a dumb buoy had been substituted for a lighted one on that day, and Reid says he was unaware of the fact. Nothing whatever was done or appears to have been attempted, and in my opinion this was a culpable neglect of a very clear duty.

Accordingly I think the pursuers have proved fault against the defenders on all the three grounds which they aver. It remains to consider the averments of fault against the pursuers before deciding where the blame for the accident must rest.

The Defenders' First Averment of Fault— [ This ground of fault was abandoned in the Inner House.]

The Defenders' Second Averment of Fault—

The disposition of the crew on the ship is criticised by the defenders' witnesses, who say that there ought to have been a special look-out on the forecastlehead in addition to the chief officer and the carpenter who were engaged there with the anchor. One of their witnesses, however, Captain Ewing, does not seem to think that there was much to complain about on this score, and with this I agree. It seems to me that, it being proved that the weather was clear, a look-out on the bridge was all that was requisite under the circumstances.

How the occupants of the bridge failed to see the green buoy marking the wreck is difficult to understand, but I believed both the master and Hiles when they say that they did not see it. It was maintained that a buoy standing only five or six feet above the water was too small for the important duty which it was expected to discharge and might not attract attention if dragging at its cable. It is proved that similar sized buoys are used by the Northern Lights Commissioners, but that larger buoys showing about 16 feet above water are used on the Mersey. That the buoy in question was large enough to attract attention is proved by the fact that the chief officer and the carpenter saw it, while the fact that it made no particular impression on their minds suggests that it was either too small for its purpose or partially submerged. There is no reason to doubt that if they had seen the word ‘wreck’ on it or realised that it was a wreck buoy they would have reported it. They say that they did not see the word ‘wreck,’ and I think this is quite possible as the word was not painted right round the buoy and very few of the letters would be visible in some positions of the buoy. Other excuses are offered for the failure of the master and Hiles to see the buoy. The sun and the position of the ship relatively to the buoy are blamed, and Captain Mackintosh is prepared to attribute it ‘to some freak of the sea or something of that sort.’ The opinion I formed was that the master and Hiles seeing no lighted buoys during the night had come to the conclusion before they started that the wreck had been removed and the buoys withdrawn or that the lights of the buoys had gone out. To satisfy themselves about this, in the morning they looked for the two conical buoys shown on the chart as they came round the Fairway Buoy and very quickly ascertained that they were not there, and accordingly assumed that the wreck had been removed. Thereafter I think it is probable they were more concerned in watching the distant pilot boat which was endeavouring to attract their attention than in looking for another buoy different to those which they thought might mark the wreck. It was a somewhat unfortunate moment for the pilot vessel to appear in the offing, particularly as she had sighted the ‘City of Naples’ as early as 8·30 in the morning, but I do not think this or any of the other explanations suggested provide a sufficient excuse for not seeing the buoy. I have no doubt that the master was keeping a good look-out, but I am not prepared to hold that he was not in fault in failing to pick up the green buoy.

But a question which I have found one of great difficulty is whether if he had seen the buoy the accident should have been avoided by ordinary care and skill on his part. I do not think that even if he had recognised it immediately as a wreck buoy he would have been bound to conclude that it marked the wreck of the ‘Clan Shaw.’ This would entail the assumption that the defenders had left the wreck which they had advertised on the chart as marked by two lighted buoys totally unmarked at night and only marked by one buoy during the day. I do not think that any reasonable man could be expected to make such an assumption, and in my opinion the master would still have been justified in concluding that as the two buoys shown on the chart had been taken away the wreck had been removed. I have already referred to the evidence led for the defenders that in the case of a charted wreck a buoy has no definite meaning as to the position of the wreck and that it was the master's duty to lie to and launch a boat to investigate the locality. But the buoy in this case might have indicated a wreck lying between it and the south side of the channel. It was can-shaped, which is consistent with a direction to a ship passing up the estuary to keep it on the port hand. In either event the ship could have passed it in safety on the course on which she was being steered. I cannot reach the conclusion that ordinary care and skill would have required the

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master had he sighted the buoy to ignore its possible meanings and to take the steps advocated by the defenders' witnesses to satisfy himself whether it was placed there for the possible purposes indicated or for some other purpose which he might not understand. In these circumstances I am not prepared to hold that the accident was the necessary result of the master's failure to observe the buoy, or that had he done so ordinary care and skill would have required that he should have steered a different course than he did.

The Defenders' Third Averment of Fault—

As it is clearly proved in the case that there was room on the north side of the channel for the ship to ascend without touching the wreck, I do not see how the selection of this side of the channel can in itself be characterised as a fault on the part of the ship. The north side of the channel was not shown as closed either on the chart or by the buoy marking the wreck, and the starboard side of the channel was the proper side on which to pass a descending ship.

The Defenders' Fourth Averment of Fault—

This averment again depends upon the importance to be attached to a wreck-symbol. I have already explained that I do not think any of the witnesses regarded an unbuoyed wreck-symbol as a danger to navigation, and if I am right in thinking that the action of the defenders in removing the buoys shown on the chart misled the master into believing that the wreck had been removed and was no longer a danger to navigation, then he was justified in disregarding the symbol. As I think that steps ought to have been taken to remove the wreck immediately after the declaration of the Armistice—six months before—I do not think that it was unnatural for the master and Hiles to assume that this had been done, and that the symbol no longer signified a danger to navigation.

In conclusion, then, I am of opinion that the master should not be held to have been guilty of contributory negligence, which is, I think, in the long run the point of the whole case.

If it be (1) that he was not entitled to think that the removal of the lighted buoys shown on the chart signified the removal of the wreck, or (2) that if he had seen the single dumb buoy, he ought to have assumed that the wreck was still in situ, and ought to have taken some action other than he did, then I think I should have been bound to hold that the accident was the immediate result of want of ordinary skill and care on his part.

These are questions with regard to which I should have derived much help from the assistance of a nautical assessor. Being deprived of that assistance I have, after giving this part of the case repeated consideration, come to the conclusions which I have indicated. It appears to me that the removal of the two lighted buoys shown on the chart was apt to mislead and did mislead the master of the ‘City of Naples,’ and that the marking of the wreck on the 14th April by a single green can buoy was also misleading as well as being ineffective. This was, I think, the direct cause of the accident, and for this the defenders are responsible.

I shall accordingly pronounce a finding for the pursuers substantially in terms of their fourth plea-in-law, leaving decree to be pronounced when the amount of the damage is ascertained.”

The defenders reclaimed, and the case was heard before the First Division on 27th to 29th October, and on 2nd, 5th, 9th, and 10th November 1920.

Argued for the defenders and reclaimer—1. The defenders were not liable for faul ^s of the pilotage authority. The Harbour Trustees and the pilotage authority were two separate bodies with separate funds—Pilotage Act 1913 (2 and 3 Geo. V, cap. 31), secs. 21 and 22). 2. There was no case of fault on the part of the pilotage authority—( a) The duty of the pilotage authority was merely to license pilots. There was no duty to see that the pilot cutter was at her post. The bye-laws were only for regulation of the service. It was jus tertii for shipowners to found on the bye-laws. ( b) The pilot cutter provided by the pilotage authority was in accordance with the statutory powers (Dundee Harbour and Tay Ferries Consolidation Act 1911, sec. 125). There was no duty to provide a steam or motor pilot vessel. ( c) The pilotage authority had done all that could reasonably be required to see that the pilot cutter was at her station. If there was fault, it was fault on the part of the pilots for which the pilotage authority was not liable—Pilotage Act 1913, sec. 19; Dundee Harbour and Tay Ferries Consolidation Act, sec. 113). The evidence did not show that the pilotage authority knew that the pilot cutter was not at her station. In the absence of such knowledge there was no duty to send a special warning. 3. There was no fault on the part of the pilots. The bye-laws did not impose on the pilots a duty to be constantly at their station. They were entitled to take shelter, and it had been necessary to do so. They had maintained a good look-out, had observed the pursuers' vessel in good time, and at once proceeded towards her. 4. If there was any fault on the part of the pilotage authority or of the pilots, the collision was not the natural and reasonable consequence of such fault—Pollock, Law of Torts, 11th ed. pp. 39·40). 5. The Lord Ordinary was wrong in holding that the defenders had failed to mark the wreck sufficiently, ( a) The buoy was sufficient to warn vessels of the danger, and to indicate where they were not to go. Its position was in accordance with the regulations of the Northern Lighthouse Board regarding buoying of wrecks, and the system of buoyage adopted by the general lighthouse authorities. The use of buoys was conventional, and there was no recognised practice to which the defenders were bound to conform. Buoys did not require to be self sufficient. They were merely aids to navigation. A shipmaster was bound to navigate by his chart, and in this case had done so. It was irrelevant to postulate a vessel without a chart. ( b) There was no duty on the

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defenders to use a wreck-marking vessel or to remove the wreck if they had buoyed it sufficiently. Wreck-marking vessels were merely temporary expedients. There was no case on record that defenders were in fault in electing to buoy the wreck. 6. The Admiralty had intervened in connection with buoyage, and the defenders had acted under instructions, or at all events in accordance with suggestions of the Admiralty. They were bound to do so, and were not liable for the results—“ Utopia,” (1893) AC 492; Defence of the Realm Regulations Consolidated 1919, 36 and 37. 7. The collision was due to the fault of the master of the vessel. ( a) He failed to keep a proper look-out, and was therefore in fault— The “ Batavier,” 1854, 9 Moore P.C. 286, at p. 300; Marsden's, Collisions at Sea, 7th ed. pp. 453, 454, 457. ( b) He was not entitled to conclude from the absence of the charted buoys that the wreck had been dispersed. ( c) He should have navigated by means of his chart, and was in fault in disregarding the wreck symbol and steering a course over the charted site of the wreck. If there was anything he did not understand he should have stopped and investigated. ( d) He should have waited longer for a pilot.

Argued for pursuers and respondents—1. The defenders were the statutory pilotage authority, and could not separate themselves from that body in a matter of negligence. The pilotage authority was a committee of the defenders. 2. As pilotage authority the defenders were bound to maintain an efficient pilot service and had failed to so. The system was defective, and the defenders were liable. They knew that the pilots were not always at their station. It was not enough to remonstrate with the pilots. They were bound to provide a vessel which would enable the pilots to be at their station in all weathers—“ General Palmer,” 1828, 2 Hag. Ad. 176—and they had not done so. Having failed to maintain an efficient service they must have anticipated that a vessel not getting a pilot would be injured—Pollock, Law of Torts. The collision was a reasonable and natural consequence of the defenders' failure. The pilotage authority could not expect vessels to wait outside the port because of failure to obtain a pilot— Clayards v. Dethick, 1848, 12 Q.B. (A. & E.) 439; Phillips v. Headlam, 1831, 2 B. & Ad. 380, per Lord Tenterden, C.J., at p. 382. 3. The defenders had neglected their duties as to buoyage. They were bound to make the harbour and its approaches safe for vessels entering. The statutes contemplated the use of the port as a harbour of refuge and by vessels from long distances. It followed that the entrance must be marked so as to be intelligible to shipmasters without charts. The defenders were not entitled to rely on charts being correct. They had power to remove the wreck. If they did not dc so it was their duty to mark the wreck so as to indicate the way to pass safely, either by a wreck-marking vessel or by a buoy at each end of the wreck. The buoyage must be self-sufficient. The rule as to buoyage of wrecks relied on by defenders did not apply to a wreck near mid channel. Further, the buoy used by the defenders was not a proper one for marking wrecks—Dundee Harbour and Tay Ferries Consolidation Act 1911, secs. 92 and 94; Merchant Shipping Act 1894 (47 and 48 Vict. cap. 60), sec. 530; Harbour Clauses Act 1847 (10 and 11 Vict. cap. 27), sec. 56; Dormont v. Furness Railway Company, 1883, 11 Q.B.D. 496; “ Utopia,” 1893 AC 492. 4. Having been negligent the defenders could not throw blame on the Admiralty. No orders were issued under the authority of the statute (Defence of the Realm Regulations (Consolidated) 1919). 5. The defenders being aware that the wreck was insufficiently marked, and that the pilotage service was disorganised, should have sent a special warning to the pursuers' vessel when they learned that she was making for the estuary. 6. The collision was not due to fault on the part of the master of the vessel. ( a) Having failed to get a pilot he was entitled to enter the estuary without one— Phillips v. Headlam; Clayards v. Dethick. ( b) The look-out was not defective. They were looking for two buoys. The single buoy was so far from the wreck that those who saw it did not think it of any importance. The failure of the master to observe the buoy did not cause the accident. It would have conveyed no information to him about the wreck. The most it could have done was to create a puzzle which the course the master took would have been a reasonable attempt to solve. Having created a puzzle the defenders could not complain that the master had failed to solve it—“ Utopia.” ( c) The master was entitled to expect that the entrance would be properly buoyed—“ Forto,” 1915 S.C. 743, 52 S.L.R. 537—and to assume from the absence of the charted buoys that the wreck had been dispersed. He was not negligent in sailing over the position marked by the wreck symbol. The proper reading of the chart was that the wreck lay between the two charted buoys. The defenders also referred to Owners of “Thames” v. Owners of “Lutetia,” 1884, 12 R. (H.L.) 1, 21 S.L.R. 716, and the “ Gala,” 1920, 57 S.L.R. 260, as to the limitation of the arguments to the cases made on record.

At advising—