Scottish Court of Session Decisions

The Anchor Line (Henderson Brothers), Limited, owners of the s.s. “Circassia,” brought an action against the Trustees of the Harbour of Dundee, concluding for payment of £87,000 damages in respect of the collision of the “Circassia” 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:—“Like the ‘City of Naples’ v. Dundee Harbour Trustees, which was recently before us, this case is concerned with a shipping disaster occurring outside the entrance of the river Tay. The s.s. ‘Circassia’(usually employed by her owners on the run between Glasgow or Liverpool and Bombay) was under Government requisition, and destinations and routes were assigned to her from time to time and from point to point by Government instructions communicated through naval officers. Having completed a voyage from Liverpool to Calcutta she was there instructed to proceed to Dundee. It was this destination, then given her for the first time, which unexpectedly brought her to the scene of her mishap. She arrived off the May Island during the night of 8–9th March 1919 and awaited daylight. Neither the master nor any of his officers, nor the pilot who had brought the vessel from the Downs to Yarmouth and assisted the master from thence northwards, had any personal experience of navigation in the Tay. The master had found on consulting his sailing instructions (North Sea Pilot, 1914, then the most recently published edition, p. 233) that ‘Strangers should be exceedingly cautious in entering the river Tay, and are strongly recommended to take a pilot.’ He accordingly determined not to attempt to enter the river but to utilise the Tay pilotage service, for the maintenance of which the defenders are responsible (Dundee Harbour Act 1911, section 107 et seq). From the same source (North Sea Pilot, 1914, p. 217) he ascertained that the station kept by the defenders' pilots was in the immediate vicinity of what is known as the Fairway Buoy. ‘The Tay pilot vessel unless driven in by stress of weather is always at anchor or under weigh near the Fairway Buoy.’ This Fairway Buoy was described in the master's sailing directions (North Sea Pilot, 1914, pp. 216–217), and shown on the master's chart as a light-and-bell buoy exhibiting a white light occulting every ten seconds, surmounted by a top mark, painted in black and red horizontal stripes, and as being laid at sea outside and in front of the river entrance formed by the bar which extends between the Gaa Spit and the Abertay Spit. The site of the moorings of this buoy is charted at a point one sea mile to seaward of the bar or river entrance, and nearly three-quarters of a sea mile to seaward of the furthest seaward pair of red and black buoys, which pair of buoys defines the commencement of the buoyed fairway. For the locality of the pilot station thus identified between 8 and 9 sea miles distant the master shaped his course when dawn came in. He took his position by compass-bearing on the Bell Rock—from which

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he judged himself to be 2 miles away—and steered N.54W. The tide, which was flowing, causes a strong set to the S.S. W., but the master set this course as one which should bring him as near as might be to the charted site of the Fairway Buoy, and consequently within the ambit of the pilot station. The weather in the early morning was cloudy and clear, but as the locality of the pilot station was approached, while remaining clear overhead, it became increasingly hazy. After a time the Bell Rock was lost to view and the thickness was sufficient to make landmarks unavailable. The master describes the conditions near to the entrance of the river thus—‘It was a morning mist, and it was lying very low. It was clear overhead. It was a patchy mist.’ After running between 7 and 8 sea miles the master reckoned that he was in near proximity to the pilot station. But as neither the pilot cutter nor the Fairway Buoy had been sighted, and as visibility had become far from perfect the master reduced the speed of his vessel to half and then to slow, making only 3 to 3 1 2 knots over the ground. The quartermaster was stationed in the chains with the lead. Some minutes later the look-out observed a buoy bearing 1 1 2 to 2 points on the port bow, and distant when first observed through the haze 4 to 5 cables away. This buoy was watched by the observers on the bridge (the master, the pilot, and the chief officer) in order to ascertain if it was the Fairway Buoy. It was examined both by the eye and with glasses as the vessel slowly proceeded towards and abreast of it, at which latter moment the buoy was distant from 1 to 1 1 2 cables. It was seen to be a dumb buoy, carrying neither the usual structure for a lamp, nor bell, nor top mark; nor did it show any light, either ‘white light occulting every ten seconds’ or other kind of light. So far as the observers on the Circassia’ could see it displayed no black and red horizontal stripes; but the prevailing thickness no doubt diminished colour values. The master says it was ‘a sort of dirty colour,’ not distinctive; the pilot says it was ‘a red buoy,’ but ‘more neutral than anything’; the chief officer says it had the appearance of a dirty buoy with bird's lime on the upper part of it. In short, it presented to the observers on the ‘Circassia’ none of the characteristics of form and equipment with which the Fairway Buoy was identified in the sailing directions and on the chart. Very shortly after the ‘Circassia’ passed abreast of this buoy the light of a buoy showing the colour and occultation distinctive of the Fairway Buoy (white occulting every ten seconds) was observed a point on the port bow, at a distance reckoned as 800 yards or 4 cables away. Believing this light to be the light of the light-and-bell buoy described and charted as the Fairway Buoy, the master altered his course a point to the northward, making it N. 44 W., so as to bring the buoy clear. Thereafter in rapid succession the most seaward of the red buoys, about 4 cables on the starboard bow, and another buoy bearing broad on the port bow, were seen, and in a few seconds the vessel struck the submerged wreck of the ‘Clan Shaw,’ which was not shown on the master's chart, and of the existence of which he had no previous knowledge.”

The pleadings of the parties sufficiently appear from the opinion of the Lord Ordinary ( Blackburn), who on 24th December 1920 pronounced an interlocutor finding that the accident was due to the fault of the defenders.

Opinion.—[ After narrating the facts]—“This then being the position of matters, I now give the sequence of events as narrated by the master and members of the crew of the ‘Circassia.’ The master says he started at 6·17 a.m. to look for the Fairway Buoy in the expectation of finding the pilot cutter in its vicinity. It was then daylight, the weather was clear, the sea calm, and only a light breeze was blowing, but no land lights or leading marks were visible. He started slow-ahead from a point which he calculated to be 2 miles S.S.W. of the Bell Rock, and at 6·30 gave the order ‘half-ahead’ and at 6·35 ‘full-ahead.’ About 7 o'clock the weather became hazy and the master reduced to half-speed. At 7·12, having calculated his distance from the Bell Rock by dead reckoning, and estimating that he was getting to the neighbourhood of the Fairway Buoy where he would find a pilot he reduced to slow. In fact he had steered an absolutely accurate course, and was at that time just about one mile short of the charted position of the Fairway Buoy. Having reduced to slow, which represents a speed of about 3 1 2 knots an hour, the master continued his course. He had with him on the bridge the pilot Robey, the first officer Erskine, the fourth officer and a cadet, who were not called as witnesses, and a quartermaster at the wheel. There was another quartermaster in the chains with the lead and two hands on the look-out forward. The first thing sighted was at 7.20, when a buoy was picked up at a distance of four or five cables on the port bow. The master and Robey seem to have made out this buoy at about the same moment, and it was also reported by the look-out. The master at first thought that it might be the Fairway Buoy, as indeed it was. On getting closer, however, he made out its shape and saw that ‘it had no light or bell,’ and thereafter ‘he really did not take any more notice of that buoy.’ They passed it at what I think must have been between one and two cables, at which distance the shape of the buoy was distinguishable but not its colouring. Proceeding on a little further the white occulting light on the westermost wreckmarking buoy suddenly came into sight at 7.25, and was observed almost simultaneously by the master, Robey, and Erskine, and they all exclaimed ‘That is the bell buoy.’ The distance at which this light was seen was estimated to be about 800 yards, and although the light was visible the body of the buoy was not. The master altered the course 10 degrees to the northward to keep a little clearer of the buoy and more into the channel of an ascending ship,

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hoping at any moment to pick up a pilot. As they drew nearer to the buoy they made out its shape, and about this time both the master and Erskine observed No. 1 red conical buoy marking the north side of the channel at a distance which the master did not estimate at the time, but which Erskine says he thought to be four or five cables. At 7·33 the ship struck the wreck and stopped. The collision was so gentle that no shock was perceptible. Just before she struck the master observed a buoy broad on the port bow, but at the moment could not say what it was although it appeared to be two or three hundred feet off. He also seems to have observed at about the same time that the buoy on which he was steering was painted green. He was rather uncertain as to the time which elapsed between these observations and the stoppage of the ship. Robey says that he only saw the colour of the west wreck-marking buoy a few seconds before the ship struck. The buoy seen broad on the port bow was, of course, the eastern wreck-marking buoy. This is proved by the witness Brydon to have been slightly south of its charted position on that morning, but only by one-quarter of a cable. Erskine, who saw this buoy shortly after the captain did and when it was on the port beam, says that it was 1 1 2 to 2 cables off. Robey says it was a point before the beam when he first saw it, but only adds that he did not notice a light on it. On record it is stated, in accordance with the master's evidence, that this buoy was first observed 200 to 300 feet on the port bow. Now whichever of these statements is to be preferred—and I think the pursuers must be taken bound by their record—I do not think that the buoy was observed in time to enable the master to do anything to save the situation. Having identified the westermost buoy by its light and general appearance as the Fairway Buoy shown on his chart he was looking for a pilot and not for a wreck in its vicinity, and it would have required a good deal more time than he had at his disposal to solve the enigma suddenly presented to him by its new colour and the discovery of another green buoy close to it. He says that if he had seen them in time and had had the advantage of a wreck symbol on his chart he would have understood that he should keep to the south of the buoys, but that without the wreck symbol he would have assumed that the buoys marked the ends of the wreck and that the course he was on was perfectly safe. After the ship stopped the master put her full speed astern and in three minutes was clear of the wreck. He then manœuvred her astern and anchored abreast of the dumb Fairway Buoy to wait for a pilot. The pilot cutter did not appear till after eleven o'clock, more than three hours later, and eventually the ‘Circassia’ was got up to Dundee with difficulty on the afternoon tide. All her injuries were on the port side.

Now I am satisfied that the story told by the pursuers' witnesses is true. I saw no reason to doubt the evidence of the master or Robey or Erskine, and the master in particular impressed me as being a capable and reliable man and an honest and straightforward witness. It is obvious that on a clear morning the events which occurred could not have taken place, and the condition of the weather therefore assumes great importance. It is described generally by the pursuers' witnesses as being hazy. This is a somewhat indefinite word, but the master adds in explanation that there was a ‘morning mist lying very low. It was clear overhead. It was a patchy mist.’ The pilot Robey describes it as a bad low-lying haze, but thought ‘it was safe to go on in a haze like that because objects stood above it.’ Erskine only says the weather was ‘a little hazy—misty.’ The expert witnesses for the defenders say that such a condition of weather was highly improbable, and that if it existed it should be described as a fog into which the master ought not to have entered. I prefer the evidence of the witnesses, who speak to what they saw and whom I believe, to the speculations of experts. If the dumb Fairway Buoy and the seaward starboard Channel Buoy were both picked up at about four cables distance the general conditions of the weather do not appear to me to have been such as to have required the master to anchor before reaching the point where he expected to find a pilot. That there may have been a patch of mist in the vicinity of the wreck so dense that the master would not have been justified in entering it blindly is, I think, probable, but there is no reason to conclude that he would have done so had he not picked up the light which he took to be and which was the light of the Fairway Buoy as described in the North Sea Pilot and his chart. That the light of this buoy and its superstructure may have been visible to observers who themselves must have been 30 feet above the water, while the body of the buoy and the whole of the nearer wreck buoy and its light remained invisible, appears to me to be quite consistent with the description given of the atmospheric conditions.

The defenders' expert witnesses (Captain Ewing, Captain Ruthven, and Commander Jones) say that under no circumstances should the master have passed the dumb Fairway Buoy without investigating it more closely and finding out its purpose. To have brought the ship nearer to it might have led to disastrous results if it had happened to be marking a wreck, and accordingly they insist that he should have anchored and lowered a boat to examine the buoy. I cannot see that there was any necessity for him to discover the purpose of the buoy which he had satisfied himself was not the light-and-bell buoy for which he was looking. The alternative which he adopted of going on a little further to see if he could find the buoy he was expecting to find does not appear to me to be unreasonable—the misfortune is that he found it so soon.

In my judgment the value of the criticisms by the defenders' expert witnesses on the conduct of the master in navigating the ship is much discounted by the fact that they proceed on assumptions as to the master's knowledge or want of knowledge of the position of his ship which I do not

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think are justified by the evidence. In the first place they were asked to assume that at 7·12 when the master put the ship to ‘slow’ he thought that he had reached the charted position of the Fairway Buoy. This it is said is admitted on record, the averment founded on being in condescendence 4, which reads—‘At 7·12 a.m., there being no sign of the pilot boat, and the vessel being then in the neighbourhood of the normal and proper position of the Fairway Buoy, the engines were put to slow.’ The meaning of this passage depends entirely on the construction to be placed on the words ‘in the neighbourhood of,’ which in my judgment admits of considerable latitude. When the passage was first put to the master and he was asked ‘Do you see that?’ he answers ‘Yes, that may mean that you are getting into the normal or anything within a mile of it.’ A few lines further on he says—‘The neighbourhood of the normal means any distance off.’ He was asked directly afterwards—‘(Q) Did you expect to see the buoy then?—(A) I was expecting to see the light. (Q) On the buoy?—(A) Yes. The next thing I saw was an unlighted buoy on the port bow.’ Sometime later in his very lengthy cross-examination there occurs the following passage—‘(Q) You admitted that you ran the best part of a mile from what you had thought was the normal position of the buoy?—(A) I have never said that. (Q) It is said for you?—(A) A sailor may say that; it may be a mile or half-a-mile.’ I confess I cannot see anything either in the averment on the record or in this evidence to justify the assumption that at 7·12 the master believed he had reached the charted position of the Fairway Buoy. I think that after steaming eight miles towards the Fairway Buoy it is perfectly legitimate to talk of a point one mile short of the buoy as being in its neighbourhood, and that such a point would be an appropriate place to slow down on the chance of the pilot cutter being under weigh to seaward of the buoy.

Next, the expert witnesses for the defenders were asked to assume that the master could not have calculated the distance he had come from the Bell Rock to the point he reached at 7·12 because he had admitted that he had not streamed a patent log. In chief the master said he calculated the distance by dead reckoning and no mention was made of streaming a log. The only passage in his evidence in which the streaming of a log is referred to is when he was being cross-examined as to how he had calculated the distance between the point he had reached at 7·12 and the point where he sighted the dumb Fairway Buoy, and his answer is by dead reckoning. Then comes the following—‘(Q) Was your patent log streamed?—(A) No. I had taken it in. (Q) Where?—(A) I took it in between the Bell Rock and where I was making for. (Q) What material had you for ascertaining the distance you had run?—(A) The speed I was going through the water and expecting to pick up the light at any moment.’ I think it is quite clear that the witness was only speaking to the period after 7·12 when he says he was not streaming a log, and the inference from his answer is that he had streamed a log for some time after he started and before he came down to slow. I so understood him at the time, but apparently counsel cross-examining did not realise what he had said. The next questions, which are somewhat confused, appear to jump back to the period before 7·12, and to assume that no log was streamed during that period, and then a little further on the witness is asked—‘And having no correct dead reckoning, had you any means whatever of ascertaining the approximate position of your ship as she entered the estuary of the Tay?” and he answers—‘Experience in a ship entering the Tay I had none; it was only my general experience I could go by.’ This evidence does not appear to me to afford any foundation for the assumption on which the defenders' experts were asked to base their opinions that no log had been streamed between the Bell Rock and the Tay. Nowhere was the witness asked the direct question whether he had done so, as in my opinion he should have been in view of his statement that he had taken the log in somewhere after leaving the Bell Rock and before 7·12. Pursuers' counsel left the evidence as it stood, and none of the other ship's witnesses were asked about the streaming of a log.

Finally, the defenders' experts were asked to assume that the master concluded that the dumb buoy could not be the Fairway Buoy because he did not see a light burning on it. Now there is all the difference in the world between a buoy with no light and a buoy with a light which is not burning, though both may be referred to loosely as not lighted. An instance of this looseness of expression appears in the master's cross-examination, where he says he thought the buoy was not the Fairway Buoy ‘because it had no light—it was a dummy buoy,’ and four lines further on he says—‘I assumed it was not the Fairway Buoy because it was not lighted.’ In chief he had said that the buoy ‘had no light and no bell,’ and I have no doubt whatever that it was for that reason and not because no light was burning that the master assumed that the dumb buoy could not be the Fairway Buoy for which he was looking.

I have dealt with these points at some length because the defenders' expert witnesses were asked to criticise the navigation of the ship on the footing that the master had completely lost his way before he went to slow, that at 7·12 he believed that he had reached the charted position of the Fairway Buoy, and that thereafter he went on blindly for about a mile and a half before he ran into the wreck, passing in the meantime the Fairway Buoy for no better reason than that it exhibited no lighted lamp and without taking the trouble to find out whether the light had not been accidentally extinguished. Under these circumstances criticism of the navigation would be easy, but it is not criticism which in my judgment is applicable to the facts of this case.

In my judgment the ship was under the circumstances navigated with great skill

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and care, and I cannot hold that the master's management of her was in any way to blame for what occurred. With nothing but the Bell Rock light and his chart to guide him he steered her on a course which after eight miles brought her within two cables of the charted position of the Fairway Buoy on a course nearly parallel to the line of leading lights. The point at which he slowed down seems to me to have been an appropriate distance from the point he was making for to ensure that he should not pass either the pilot cutter or the Fairway Buoy without observing them. A good look-out was being kept, and the dumb Fairway Buoy was reported by the lookout almost at the same moment as it was observed from the bridge. The lead was kept going as a precaution against the shifting of the sandbanks, as to which there is a caution both on the chart and in the ‘North Sea Pilot,’ and it seems to me absurd to suggest that soundings should have been taken and used for the purpose of locating the Fairway Buoy. In my judgment, when he saw that the buoy which he thought would be the Fairway Buoy was a dumb buoy it was natural and reasonable for the master to assume that he had overestimated the distance he had come, and that he was justified in continuing a little further to see if he could find the light-and-bell buoy with a top mark which he was looking for. The misfortune, as I have said, is that he found it so soon, but having found it I do not think he could possibly be expected to assume that in the position where it was it marked a wreck and not the fairway.

This I think disposes of all the grounds of fault alleged against the master with the exception that he was proceeding without an up-to-date chart. This is a matter which I shall deal with hereafter, and meantime I turn to the pursuers' averments as to fault.

The first two faults on the part of the defenders to which the pursuers attribute the accident are connected with the failure of the pilots to be at their advertised station in the vicinity of the Fairway Buoy. The question of the defenders' duties with regard to the refusal of the pilots to keep their station was considered in the ‘ City of Naples’ case, and the grounds on which it was disposed of negative any suggestion of liability on the part of the defenders for the pilots' absence from their station on the night in question in this case. But the facts in this case differ from those in the ‘ City of Naples’ to this extent, that it is not averred that the weather conditions were such as to justify the pilots in withdrawing to a position further up the river. The excuse tendered on record is that their withdrawal was due to mine-sweeping operations, but no evidence was led to support this averment. Further, I think that had they been at their station the accident would not have occurred, as the pilot cutter would have been met before the wreck was arrived at. Differing from the conclusion I reached in the former case, I should have held that in this case the accident was a natural and reasonable result of the failure of the pilots to keep station.

Another ground of fault which is disposed of by the decision in the ‘ City of Naples’ case is that the defenders failed to mark the position of the wreck properly. Apart from the use made of the Fairway Buoy as one of the wreck buoys, which is founded on as a separate ground of fault, I do not think that any question as to the proper method of marking a wreck really arises in this case. If it did I do not doubt that the two large lighted buoys in position on 9th March 1919 were a more effective method of marking a wreck than the single small dumb buoy which was substituted for them at a later date, and which was held to be a proper method of marking in the ‘ City of Naples’ case. Evidence on the subject was, however, led, and in my opinion it is proved by the evidence of witnesses for the defenders (Meldrum, Swaddell, Ewing) who have knowledge of the local conditions, which I prefer to the evidence of witnesses for the pursuers who admit to having no such knowledge, that a lightship could not with safety be anchored permanently to mark the wreck of the ‘Clan Shaw.’ It is, however, also proved that the steam tug Gilroy was used as a lightship to mark the wreck temporarily for two nights in November 1919 (Hannay Thompson). The evidence of Captain Metcalfe, which is illustrated by some instructive charts of wrecks in the navigable channel of the Mersey, shows that it is feasible to mark a wreck in a navigable channel by two buoys so as to indicate the position of the wreck to incoming ships. This witness also stated that wrecks in the Mersey which are a source of danger to navigation are never charted, and consequently are never indicated to mariners except by surface marks. They are dispersed as soon as possible, and until this is done they are buoyed so as to warn incoming vessels. On the other hand, wrecks which from their position are not regarded as a danger to navigation are marked on the Admiralty charts by the usual wreck symbol but are not buoyed. There are several wrecks similarly marked on the charts of the river Tay. This explains my former statement in the ‘ City of Naples’ case that a wreck symbol by itself does not indicate a danger to navigation. I may add in this connection that the wreck symbol indicated by a circle of dotted lines is never used on Admiralty charts.

The remaining ground of fault is that the defenders moved the Fairway Buoy to mark the wreck, providing in its place an unlighted buoy which possessed no definite significance in the maritime world and was not recognisable as a safety buoy. So far as the second part of this complaint is concerned, I think the pursuers have failed to prove that there is any recognised form of buoy used as a fairway buoy. On the contrary the evidence establishes that fairway buoys in other places vary in size and in shape, and are sometimes lighted buoys and sometimes dumb (Dick Peddie). As a matter of fact the dumb buoy which was marking the fairway on 9th March had been used for the same purpose for some years prior to 1910, when the defenders purchased the light-and-bell

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buoy to take its place. While I do not doubt that a light-and-bell buoy is a more satisfactory form of buoy to mark the entrance of the fairway to the Tay, I could not hold that the use of a dumb buoy for the purpose necessarily amounted to fault. Nor so far as the first part of the complaint is concerned could I hold that a light-and-bell buoy was in itself an inappropriate form of buoy to use for wreck-marking purposes. But in my judgment the removal of the light-and-bell buoy from its position marking the fairway to the position which it occupied on 9th March without so altering its appearance as to ensure that under no circumstances would a navigator be justified in assuming that it still marked the fairway, constitutes a failure in the discharge of their duties which amounts to fault. The defenders did so far alter the appearance of the light-and-bell buoy that they changed its colour to that which by convention signifies a wreck. But because there is no conventional light appropriate to a wreck-marking buoy they did not alter the light but allowed it to remain occulting every ten seconds as it did when it marked the fairway although it was only half-a-mile from its former position and practically on the same line. Had the colour or the occultation of the light been changed, either of which alterations could have been easily made (Metcalfe), no one would have been justified in mistaking it for the Fairway Buoy. Nor would any navigator, whether he possessed a chart showing the two lighted wreck buoys or not, have been justified in assuming that the light-and-bell buoy was the Fairway Buoy so long as the light of the other wreck-marking buoy was visible. But the defenders have proved conclusively that the lights on buoys are apt to go out and that no reliance can be placed on their remaining alight. It is also proved that the light on a buoy may become invisible owing to the heeling of the buoy (Metcalfe). Accordingly I think it must be assumed that up to 9th March 1919 the defenders were aware that it was always possible that the first lighted buoy which might catch the eye of a navigator approaching the Tay either at night or under conditions in which the bodies of buoys might be indistinguishable would be the light on the very light-and-bell buoy which was advertised as marking the fairway in all charts and notices available to the mariner up to 25th January 1919. This is what happened in this case, and the light instead of being a warning acted as a bait which attracted the ‘Circassia’ to the wreck. But for the defenders' fault in removing the light-and-bell buoy without altering the appearance of the light this accident in my opinion would never have taken place. It is said that the master ought to have been aware that during the war all lights had been extinguished and that he was not entitled to assume that by 9th March the Tay fairway light had been relit. The order to restore lights was communicated to the defenders on 23rd November 1918 by telegram, which suggests that it was to be attended to promptly. It is proved that in some places in Scotland it was found impossible to restore pre-war lights for some months (Dick Peddie), but the only obstacle to restoring the fairway light on the Tay was the fact that it was being used half-a-mile away to mark the wreck (Hannay Thompson). I think the light-and-bell buoy ought to have been replaced at once in its position marking the fairway, and if, as has been held in the ‘ City of Naples’ case, a single dumb buoy was sufficient to mark the wreck there was no reason why this should not have been done. The approval of the Senior Naval Officer at Dundee to the use of a single buoy to mark the wreck was intimated to the defenders on 18th December 1918, and I do not think it is proved that it was impossible to carry out the change between that date and 9th March, or indeed that any serious attempt was made to do so.

There remains the question whether it was fault on the part of the pursuers that the ship was not furnished with the most recent charts and notices to mariners obtainable in this country at the date of the accident. The most recent information available would not have disclosed the actual surface marks then in position, but the latest chart available when the ship left Liverpool would have disclosed the wreck marked by two lighted buoys with the same occulting lights as shown by the Fairway Buoy half-a-mile distant. The notice to mariners and corrected chart issued in January and February 1919 would have indicated that the fairway was no longer marked with a lighted but with a dumb buoy. I do not doubt that if the captain had possessed either of these pieces of information the accident might not and probably would not have occurred. The defenders argue that they are only bound to consider ships provided with all the most recent information, and in normal times I do not doubt that this is so. But the defenders plead the abnormal condition of the times for some months after the armistice in defence of their own actings, as I think they are fully entitled to do. I do not, however, think that they were entitled to overlook that for some months after the armistice there might be vessels arriving at the Fairway Buoy in quest of a pilot which experiencing difficulties similar to their own had failed to obtain the most recent information, and in particular the information published at the end of January 1919 that the fairway was now marked with a dumb buoy. I think the master had done all that he could reasonably be expected to do to obtain the most recent information, and that even if he had succeeded in obtaining a chart showing the three buoys within half-a-mile of each other with lights occulting every ten seconds, the most seaward one being described as a light-and-bell buoy, he would still in my opinion have been justified in believing that the light which he first observed indicated the Fairway Buoy.

The only port of call where he could have obtained the information published in January 1919 was at Port Said, and apparently it had not reached there at the

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date of his call. The averment by the defenders on record of fault with reference to the chart is contained in answer 7, where they say the accident was due to the negligence of the master ‘in passing the Fairway Buoy and proceeding towards Dundee without an up-to-date chart and sailing directions and in disregard of the notices issued by the Board of Trade and the Admiralty warning mariners of the presence and position of the wreck.’ I have already indicated that in my opinion the master exhibited the utmost caution and care in approaching the Tay, and I think that this was in part due to the age of his chart. He admits that he was not happy about it. The defenders' witness Captain Ruthven when asked—‘If in point of fact his chart was four years old does that make any difference to the master's duty?’ answers—‘It would only engender more caution.’ He of course condemns the master for want of sufficient caution, but in view of this evidence and of the fact that in my judgment the master exercised the utmost caution I cannot hold that in attempting to find the Fairway Buoy with an old chart he was in fault. But the defenders' witnesses gave evidence that it was the duty of the owners of the ‘Circassia’ as soon as they learned that the destination of the ship had been altered to have sent out all the latest information to meet the ship before she reached the Tay. This they say could have been sent to Port Said or the Downs. I refer particularly to the evidence of Captain Ruthven as to the practice of the Orient Line. He also refers to section 457 of the Merchant Shipping Act and to an Order of the Board of Trade as requiring that this should be done, but these regulations appear to me to refer only to the supply or charts, &c., when the ship starts on her voyage. It is quite clear that it is the owner's duty to supply and the master's duty to see that he is supplied with all the most recent charts required on the voyage upon which the ship is embarking. But I cannot hold that there was fault or neglect in failing to supply charts of the Tay to a ship starting from Liverpool to Calcutta on a round voyage to London or Glasgow. If it was the owner's duty to send such charts to meet the ship after they knew that her destination had been altered, then I think it ought to have been averred on record and put specifically to the pursuers' witnesses. Neither of these courses was adopted, and accordingly in my opinion the defenders have neither proved this duty on the part of the owners nor had they done so would they have been entitled to found on it.

The result is that I find that the accident in this case did not arise out of any fault on the part of the pursuers, but was directly due to the defenders' fault in removing the light-and-bell buoy from its charted position and using it to mark a wreck in the immediate vicinity without making any alteration in the light shown by the buoy. I accordingly find the pursuers entitled to decree.”

The defenders reclaimed, and the case was heard before the First Division on 18th and 22nd to 25th February and on 1st and 2nd March 1921.

Argued for reclaimers—(1) The collision was due ( a) to the owners' fault in failing to furnish the master with an up-to-date chart, and ( b) to the master's faulty navigation. It was the duty of shipowners to see that their vessels had up-to-date charts (Notice to Mariners for “Foreign-going Ships,” 1st March 1919), and although one had not been obtainable from Admiralty sources it could have been supplied at the Downs. Such a chart would have shown the wreck, and it was admitted by the master that if he had had one the collision would not have taken place. Having no local knowledge and no up-to-date sailing directions the master was in fault in passing the dumb buoy without a thorough inspection. He had inferred, as he was not entitled to do, that the dumb buoy was not and that the lighted buoy was the Fairway Buoy. If it was misty he was all the more negligent in passing the dumb buoy, and if it was clear and he was keeping a proper look-out he must have seen the smaller wreck-marking buoy. Further, if he had used his lead properly he would have known from the depth that the dumb buoy was the Fairway Buoy. The account given by the master was unreliable. (2) There was no trap in the arrangement of the buoys. If the master was misled it was by his own fault in assuming that the Fairway Buoy corresponded with the description in his out-of-date chart. The Fairway Buoy was in its proper position. No question arose as to the method of buoying the wreck. It was adopted under orders of the Admiralty which the defenders were bound to obey. (3) The defenders were not to blame for the absence of the pilot cutter from station. As pilotage authority the defenders were merely licensors. In any event the absence of the pilots from their station did not infer liability on the part of the defenders. It was not proved that they knew of or acquiesced in the pilots' neglect of duty. The fact that the defenders were aware that the vessel was due imposed no special duty upon them. It was not proved that they knew that the pilot cutter was absent from her station.

Argued for the respondents—(1) Neither the owners nor the master were in fault in regard to the charts. The vessel was under Government requisition and the owners were not consulted about her destination. The master had applied for charts in accordance with the instructions he had received from the Admiralty. (2) There was no faulty navigation. If the master had known that the dumb buoy was the Fairway Buoy there would have been no fault in what he did. He was looking for a pilot and was in the proper position to obtain one. There was no case of failure to keep a proper look-out. The master's evidence was believed by the Lord Ordinary and there was no good ground for challenging his credibility. (3) The cause of the collision was the defenders' neglect of their duties in regard to buoyage and pilotage. The buoyage should have been adequate and correct (Dundee Harbour and Tay Ferries Act 1911, sections 92 and 94) but was not so. It gave no indication of the position

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of the wreck and was misleading owing to the use of the charted Fairway Buoy, without effective distinction to mark the sunken wreck— Owners of s.s. “Forto” v. Orkney Harbour Commissioners, 1915 S.C. 743, 52 S.L.R. 537. Its light should have been changed to green. The Admiralty's orders did not necessitate the use of the former Fairway Buoy as a wreckmarking buoy. Further, no alteration in the description of the Fairway Buoy in the charts having been made during war time, the defenders were bound to anticipate vessels coming in with incorrect charts and should have rearranged the buoys after the Armistice. The buoyage together with the absence of the pilot cutter from station created a trap. The absence of the pilot cutter was due to the defenders' neglect of their duty to maintain an efficient service of pilots— Ellerman Lines, Limited (s.s. “City of Naples”) v. Trustees of Harbour of Dundee, ante p. 186, per the Lord President at p. 198. There was no excuse in this case for its absence. Further, the knowledge of the defenders of the vessel's arrival, of the slackness of the pilots, and of the state of the buoyage, created a special duty on them to see that the pilot cutter was at her station.

At advising—