Scottish Court of Session Decisions

The Regulations for Preventing Collisions at Sea. 1910, inter alia, provide—Article 15—“All signals prescribed by this article for vessels under way shall be given—1. By ‘steam vessels’ on the whistle or siren.…

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In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, viz. …( e)… and a vessel under way which is unable to get out of the way of an approaching vessel through being not under command, or unable to manoeuvre as required by these rules shall … at intervals of not more than two minutes sound three blasts in succession, viz., one prolonged blast followed by two short blasts. …” Article 16—“Every vessel shall in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines and then navigate with caution until danger of collision is over.”

The Laird Line, Limited, owners of the steamship “Rowan,” pursuers, brought an action against the United States Shipping Board, owners of the steamship “West Camak,” defenders, for £100,000, restricted in the course of the proceedings to £11,000, as damages sustained by the “Rowan” in a collision with the “West Camak.” The United States Shipping Board, pursuers, brought a counter action against the Laird Line, Limited, defenders, for £8000 as damages for injury to the “West Camak” in the same collision.

The Laird Line, Limited, owners of the steamship “Rowan,” pursuers, brought an action against the Clan Line Steamers, Limited, owners of the steamship “Clan Malcolm,” defenders, for £100,000 as damages sustained by the “Rowan” in a collision with the “Clan Malcolm” which took place subsequent to that with the “West Camak.” The Clan Line Steamers, Limited, pursuers, brought a counter action against the Laird Line, Limited, defenders, for £7500 as damages sustained by the “Clan Malcolm” in the same collision.

In the action by the Laird Line, Limited, against the United States Shipping Board the pursuers averred—“(Cond. 6) The said collision between the ‘Rowan’ and the ‘West Camak’ was due solely to the fault of those in charge of the ‘West Camak,’ for whom the defenders are responsible, in respect that ( a) she was being navigated at an excessive speed while in fog, ( b) her whistle was not being sounded while in fog, ( c) those on board her failed to keep a sufficient or any look-out, ( d) when it was her duty to keep out of the way of the ‘Rowan’ she failed to do so, ( e) she improperly and at an improper time starboarded her helm, and ( f) she failed timeously to stop and reverse her engines. Those in charge of her navigation were accordingly in breach of the rules of good seamanship and the Articles for Preventing Collisions at Sea, particularly articles 15, 16, 19, 23, and 29.”

In the counter action the United States Shipping Board averred—“(Cond. 7) The said collision between the ‘Rowan’ and the ‘West Camak’ was due entirely to the fault of those in charge of the navigation of the ‘Rowan,’ for whom the defenders are responsible. In particular, those in charge of the ‘Rowan’ were negligent in their failure ( a) to keep a sufficiently good or any lookout, ( b) to proceed at a moderate speed in the state of the weather which prevailed, ( c) to sound her whistle for fog in accordance with the Regulations for Preventing Collisions at Sea, ( d) to stop her engines in due time or at all, ( e) to stop and/or reverse her engines in due time or at all, ( f) they were also negligent in porting their helm on sighting the ‘West Camak’ close at hand, as the effect of this manœuvre was to throw the port quarter of the ‘Rowan’ on to the bows of the ‘West Camak,’ and they were also in fault in failing to indicate by appropriate whistle signal that she was changing her course. Those in charge of the navigation of the ‘Rowan’ failed to comply with articles 15, 16, 27, 28, and 29 of the Regulations for Preventing Collisions at Sea.”

In the action by the Laird Line, Limited, against the Clan Line Steamers, Limited, the pursuers averred—“(Cond. 6) The said collision was due to the fault of those in charge of the navigation of the ‘Clan Malcolm,’ for whom the defenders are responsible, in respect that ( a) she was being navigated at an excessive speed while in fog, ( b) her whistle was not being sounded while in fog, ( c) those on board her failed to keep a sufficient or any look-out, ( d) she failed to stop and reverse her engines timeously, ( e) she failed on sighting the ‘Rowan’ to keep out of her way by timeously altering her course and/or by timeously reversing her engines, and ( f) having ordered her engines to be reversed those in charge thereafter improperly ordered them half speed ahead. Those in charge of the navigation of the ‘Clan Malcolm’ were accordingly in breach of the rules of good seamanship and the Articles for Preventing Collisions at Sea, particularly articles 15, 16, and 29.

In the counter action the Clan Line Steamers, Limited, averred—“(Cond. 5) The said collision between the ‘Clan Malcolm’ and the ‘Rowan’ was due to the fault of those in charge of the ‘Rowan in respect that they failed ( a) to sound their whistle in the fog, ( b) to exhibit the prescribed signals for a vessel not under command, ( c) to show flares or to send up rockets or shells, or to take any steps to warn vessels in the vicinity that she was lying helpless and requiring assistance in the track of incoming and outgoing vessels, and ( d) to send out timeously a wireless message of distress.”

The facts are given in the opinions.

After a proof had been led by arrangement among the parties in all the actions at the same diet the Lord Ordinary ( Anderson) on 19th April 1922 found in the actions between the Laird Line, Limited, and the United States Shipping Board that the collision between the “Rowan” and the “West Camak” was entirely due to the fault of those in charge of the “Rowan,” assoilzied the United States Shipping Board in the action against them, and continued their action against the Laird Line, Limited, for further procedure; and in the actions between the Laird Line, Limited, and the

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Clan Line Steamers, Limited, that the collision between the “Clan Malcolm” and the “Rowan was due to the joint fault of those in charge of these ships, and that the Clan Line Steamers, Limited, were liable for two-thirds of the loss thereby occasioned, and the Laird Line, Limited, for one-third. The Lord Ordinary also found that it had not been proved that at the time of the collision between the “Clan Malcolm” and the “Rowan” that the latter was sinking and unsalveable.

Opinion.—“On 8th October 1921 the s.s. ‘Rowan’ sailed from Glasgow about midday and proceeded to Greenock. At Glasgow a general cargo of 87 tons had been shipped, and at Greenock other 41 tons of cargo were taken aboard. The ‘Rowan’ also carried passengers, and when she sailed from Greenock at 7'20 p.m. there were 75 passengers aboard. Her crew numbered 35. She was bound for Dublin. The length of the ‘Rowan’ was 280 feet; her full speed was 14 knots, half speed about 7 knots, slow speed 3 to 4 knots. After the ‘Rowan’ left Greenock the night at the outset was clear, the weather fine, the sea smooth, and the wind blowing from the south-west was light. At Kildonan the ‘Rowan’ passed the s.s. ‘Clan Malcolm.’ Corsewall Point Light on the Wigtownshire coast was passed about 11·54 p.m. About fifteen minutes thereafter, to wit, at 12·12 Greenwich mean time, a collision took place between the ‘Rowan’ and the s.s. ‘West Camak,’ which was steaming north, bound for Glasgow. As a result the ‘Rowan’ sustained somewhat serious damage. A portion of her counter on the port side aft, weighing about 10 tons, was cut away. Her propeller and rudder were dislodged, and she was thereby put completely out of command. The injuries sustained by the ‘West Camak’ were slight.

“About fifteen minutes after the said collision had taken place, a second collision occurred between the ‘Rowan’ and the s.s. ‘Clan Malcolm,’ which was steaming south, bound for Liverpool. The latter vessel struck the ‘Rowan’ on the starboard side 20 feet or thereby forward of the funnel and sunk her almost immediately. There was a regrettable loss of life, both among the passengers and crew of the ‘Rowan.’ The ‘Clan Malcolm’ was not seriously damaged.

In these circumstances four actions have been raised, concluding for damages sustained by reason of the foresaid collisions.

On 2nd November 1921 the owners of the ‘Rowan’ raised an action against the owners of the ‘West Camak,’ concluding for the sum of £100,000 as damages in respect of the first collision. In the original pleadings of this action it was averred that ‘the “West Camak” struck the “Rowan” on the port quarter, doing damage both above and below the water line, and causing water to enter freely.’ In other words, the case against the ‘West Camak’ as originally laid would seem to have been that she had inflicted a mortal injury on the ‘Rowan’ and so rendered her unsalveable. On fuller information or maturer consideration a different case is made against the ‘West Camak’ by the pleadings as finally adjusted. The petitory conclusion of the summons is restricted to £11,000, and this claim is made on the footing that the injuries caused by the ‘West Camak’ were not fatal. It is assumed that had the ‘Clan Malcolm’ not intervened the ‘Rowan’ would have been salved, and the sum now claimed from the owners of the ‘West Camak’ is the estimated cost of repairing the damage sustained by the ‘Rowan’ by reason of the first collision.

The owners of the ‘West Camak’ on 23rd December 1921 raised a counter action against the owners of the ‘Rowan,’ alleging that the first collision was entirely due to the fault of the ‘Rowan,’ and suing for the sum of £8000 in respect of the damage sustained by the ‘West Camak.’

On the said 2nd November 1921 the owners of the ‘Rowan’ raised an action against the owners of the ‘Clan Malcolm,’ concluding for payment of the sum of £100,000 in respect of the sinking of the ‘Rowan’ by the second collision. This claim is made on the footing that the ‘Rowan’ had not been mortally injured by the first collision but was salveable, and that the ‘Clan Malcolm’ is thus responsible for the loss of the ‘Rowan’ and her cargo.

On 6th January 1922 the owners of the ‘Clan Malcolm’ brought a counter action against the owners of the ‘Rowan,’ alleging that the second collision was entirely due to the fault of the ‘Rowan,’ and suing for £7500 in respect of the damage sustained by the ‘Clan Malcolm.’

The questions raised for determination by these actions are thus—

“1. In reference to the first collision—

1. ( a) Was the ‘West Camak’ in fault?

2. ( b) Was the ‘Rowan’ in fault?

“2. In reference to the second collision—

1. ( a) Was the ‘Clan Malcolm’ in fault?

2. ( b) Was the ‘Rowan’ in fault?

3. As the result of the first collision—

1. ( a) Was the ‘Rowan’ rendered unsalveable? or

2. ( b) Was she salveable thereafter?

4. There is a further point which is not directly raised by the pleadings, but whereon some evidence was led and as to which I think it proper to state my opinion—Assuming that the ‘Rowan’ was rendered unsalveable by the first collision, would there have been any loss of life had there been no second collision?

Taking these various questions in the order above stated, I proceed, in the first place, to deal with the collision between the ‘West Camak’ and the ‘Rowan.’

“( a) Was the ‘ West Camak’ in fault?

The ‘West Camak’ is a much larger ship than the ‘Rowan’ was. The tonnage of the ‘West Camak’ is 5721 tons gross and 3513 net, as against the ‘Rowan's’ 1493 tons gross and 622 net. The length of the ‘West Camak’ is 410 feet. Her speeds are—full, 10 1 2–11 knots; half, 6–6 1 2 knots; and slow, 3 1 2–4 knots. Her draught was 24 feet 1 inch forward and 24 feet 3 inches aft. The chief officer's log of the ‘West Camak’ shows that in her voyage northwards to Glasgow fog was encountered from 12 midday on

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wards to the time of the collision. From 8 p.m. until 12 midnight the log bears that ‘thick fog’ prevailed.

The chief engineer's log shows that from 7·3 p.m., when it began to get dark, until 11·50 p.m., the speed of the ship was altered eight times from ‘slow ahead’ to ‘full ahead’ a few minutes thereafter. The chief officer's log shows that the purpose of these changes of speed was to take soundings. The ‘West Camak’ had thus been steaming in fog from 12 midday until 11·50 p.m. at full speed with several short intervals of slow speed. This was, in my view, negligent seamanship, and was in violation of the provisions of article 16 of the Regulations for Preventing Collisions at Sea. If, after soundings had been taken at 11·50 p.m., the ‘West Camak’ had as previously gone full speed ahead and continued at that rate until the ‘Rowan’ was sighted, the ‘West Camak’ would undoubtedly have been to blame for the collision. But fortunately for that vessel something occurred at the last sounding which kept the ‘West Camak's’ rate of speed at slow ahead. This was that a sounding of only 17 fathoms was then taken. As the previous recorded sounding (at 10·20 p.m.) was 140 fathoms, the sounding of 17 fathoms showed that the ship had drawn near the shore. It was thus necessary, or at all events expedient, to continue at the speed of slow ahead, and no increase of speed took place before the collision.

As the ‘West Camak’ proceeded at slow speed for eleven minutes or thereby before sighting the ‘Rowan,’ her speed had doubtless then been reduced from full to slow, i.e., 3–4 knots. The ‘Rowan's’ speed was then about 13 knots, giving a combined speed of 16–17 knots or 1600–1700 feet per minute. As the two vessels, when they sighted each other, were at no greater distance apart than 1000 feet or thereby, this combined speed gave them a period of time of little more than half-a-minute in which to act. I am advised by the nautical assessor (who has given me invaluable aid at every stage of this difficult case) that if both ships at the moment of sighting one another had reversed their engines, then as both vessels were at that moment on a port helm the collision might have been avoided, and in any event the damage to the ‘Rowan’ would have been greatly diminished. This manœuvre, however, was not adopted by both vessels. When the ‘Rowan's’ port light opened to the ‘West Camak,’ Captain Curtis should have given the order to the engine-room ‘full speed astern’ and to the steersman ‘hard-a-port.’ What Captain Curtis did was—(1) On seeing the ‘Rowan's’ mast-head light, he ordered the helm hard-a-starboard. This order—admittedly wrong—was explained by counsel for the ‘West Camak’ as having been given because the ‘Rowan's’ light was at first thought to be a shore light. (2) When immediately thereafter the ‘Rowan’ showed her port light, the preceding order, which the helmsman had only begun to execute, was countermanded, and the order ‘hard-a-port’ was given, the appropriate blast being sounded on the whistle. Immediately thereafter the order ‘stop’ and ‘full speed astern’ were telegraphed, practically as one order, to the engine-room. Three short blasts were sounded on the whistle to show that the order had been given and executed. I am advised that this manœuvre had probably taken effect to the extent of reducing the ‘West Camak's’ speed to 2 knots at the moment of impact.

I shall show later, when I deal with the six charges of negligence which are made against the ‘West Camak,’ that the only case of fault which has any substance in it arises in reference to the foresaid orders which were given by the master of the ‘West Camak.’ As to what took place after the ‘Rowan's’ port light appeared, I am of opinion that there was no appreciable loss of time caused by the order to the steersman having been given first. It was essential to have the helm altered at once to counteract the erroneous order ‘hard-a-starboard.’ There was in my opinion no appreciable interval of time between the order to the steersman and the order to the engine-room. Captain Curtis, in answer to a question I put to him, said that these orders were given simultaneously, and they might have been given at the same moment, as the one order was oral, the other by telegraph. The helmsman Brannan, a superior type of seaman and a good witness, gave evidence to the same effect. I therefore hold that there was no negligence in connection with these orders.

There is a little more difficulty in connection with the order ‘hard-a-starboard,’ but here also 1 have formed the opinion that the loss of time was negligible and had no effect on the ultimate result. [ His Lordship then considered the evidence, and continued.]—This evidence in my opinion describes exactly what took place, and shows that the erroneous order to starboard caused no appreciable loss of time. It is to be noted that the order to starboard had not been signalled on the whistle, so rapidly had the countermand been given. I am satisfied that in reference to both of the above-mentioned matters there was not a total loss of time of more than three seconds. There is no case in the books where so slight a loss of time in executing the appropriate manœuvre has been held to amount to negligence. It must be kept in mind that the master of a ship faced with a probable collision is entitle to a reasonable period of time to make up his mind as to what is best to be done. In the ‘Emmy Haase,’ 9 PD 81, Butt, J., said—‘I may add that compliance with rule 18 (to stop and reverse) at the very moment when danger becomes apparent is not necessary, for a man must have time to consider whether he should reverse or not. The Court is not bound to hold that a man should exercise his judgment instantaneously—a short but a very short time must be allowed him for this purpose.’ This principle was approved by the House of Lords in the case of ‘Kwang Tung,’ [1897] AC 391, in which it was decided that a delay of a few seconds in giving the proper order did not amount to

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negligence. I am satisfied that no longer time elapsed before the engines of the ‘West Camak’ were reversed than is thus allowed to the master of a ship to execute the appropriate manœuvre. It must further be kept in mind that the onus is on the ‘Rowan’ to show that but for the alleged delay on the part of the ‘West Camak’ no collision would have occurred. ( The ‘Vindomora,’ [1891] AC 1, per Lord Herschell at p. 7.) This onus has not, in my opinion, been discharged.

Turning now to the specific acts of negligence averred against the ‘West Camak’ I hold that ( a) has been disproved for the reasons already given; ( b) also fails, as it is proved that the whistle of the ‘West Camak’ had been sounded all along up to the time of collision; ( c) is disproved, as the ‘West Camak’ kept a sufficient lookout from the bridge and forecastle-head; ( d) also fails, as the evidence shows that the ‘West Camak’ did her best to keep out of the way of the ‘Rowan.’ The manoeuvre suggested by the ‘Rowan's’ counsel in cross-examination of Captain Curtis and in argument, to wit, that the ‘West Camak’ should have gone full speed ahead on a hard-a-port helm was, I am advised, a risky manœuvre and one which a prudent seaman would not in the circumstances have adopted; ( e) and ( f) also fail, for the reasons already given.

I must therefore absolve the ‘West Camak’ from all blame in connection with the first collision.

The result is that in the action at the instance of the owners of the ‘Rowan’ against the owners of the ‘West Camak’ decree of absolvitor must be pronounced with expenses.

“( b) Was the ‘Rowan’ in fault?

The specific charges made by the ‘West Camak’ against the ‘Rowan’ are set forth in the record S.S. ‘West Camak’ v. S.S. ‘Rowan’ and are six in number. The main allegations of fault against the ‘Rowan’ are (1) that she was proceeding in or towards fog at a dangerous rate of speed, and (2) that when the ‘West Camak’ was sighted she failed to adopt proper manœuvres for avoiding a collision.

(1) Dangerous rate of Speed.—The ‘Rowan’ admits that as she approached Corse wall Point the weather was ‘slightly hazy.’ The productions (excerpts from the records kept at Corsewall Fog-Signal Station and at Killantringan Fog-Signal Station) show that the fog signal had been sounding from Corsewall from 8·35 p.m. till 12·10 a.m. and from Killantringan from 8·20 p.m. till 12·35 a.m. The latter signal might not have been audible to the ‘Rowan’ but the Corsewall signal was heard. Further, Killantringan light had never been seen by the ‘Rowan's’ outlook. All this ought to have warned the ‘Rowan’ that there was foggy weather at or near Corsewall Point. She ought therefore to have slackened speed when approaching, or at all events when abeam of that point. Instead of doing so she proceeded at what was practically her full speed until the collision took place. I am of opinion, and am advised, that this was faulty seamanship which was in great measure the cause of the collision—see The ‘City of Brooklyn,’ 1 P.D. 276; The ‘Pennsylvania,’ 31 L.T. 103; The ‘Campania,’ [1901] P 289; and The ‘Counsellor,’ [1913] P 70, where it was held that as a general rule speed such that another vessel cannot, after being seen, be avoided is excessive.

(2) Improper Manoeuvring.—The ‘West Camak’ sighted the ‘Rowan’ on her starboard bow. As the vessels were on crossing courses the duty of the ‘Rowan,’ had there been sufficient time available, was to have kept her course, and that of the ‘West Camak’ to have kept out of the ‘Rowan's’ way by porting and passing astern of her. The note to article 21 of the Regulations, however, laid upon the ‘Rowan’ the duty of taking such other action as would avoid a collision. Instead of keeping her course the ‘Rowan’ first ported and subsequently starboarded. The first of these manœuvres, if adopted at full speed ahead for the purpose of avoiding a collision, was not a proper manœuvre. The ‘Rowan,’ when the white light of the ‘West Camak’ was sighted, ought at once to have reversed her engines and gone full speed astern, and when the red light of the ‘West Camak’ was visible, the order ‘hard-a-port’ should then have been given so as to cant her head to starboard. This was the obvious manœuvre to avoid a collision, or at all events minimise damage. So far from doing this the ‘Rowan’ did not even reduce her speed from full to slow.

I am therefore of opinion that the first collision was due solely to the negligence of those in charge of the ‘Rowan.’ In the action at the instance of the owners of the ‘West Camak’ against the owners of the ‘Rowan’ I shall find accordingly and continue the cause to enable the ‘West Camak’ to prove her damages.

I proceed in the second place to consider the collision between the ‘Clan Malcolm’ and the ‘Rowan.’

( a) Was the ‘Clan Malcolm’ in Fault?

The specific charges made against the ‘Clan Malcolm’ are set forth in the record S.S. ‘Rowan’ v. S.S. ‘Clan Malcolm,.’ The main charges are these—(1) Steaming through fog at a dangerous rate of speed, and (2) improper manoeuvring after the ‘Rowan’ had been sighted.

(1) Dangerous rate of Speed in Fog.—Captain Harris admits that he had heard Corsewall fog signal sounding. This ought to have warned him to slacken speed as he approached Corsewall Point. He nevertheless continued to steam at full speed until he had passed Corsewall Point. About a minute afterwards the ‘Clan Malcolm’ is said to have suddenly entered a bank of thick fog. Captain Harris thereupon gave the order ‘Stand by’ on the telegraph to the engine-room, and immediately afterwards ‘Slow ahead.’ It has to be kept in mind that the fog was then ‘dense’ and the ‘Clan Malcolm’ was navigating a frequented part of the ocean. Article 16 of the Regulations prescribes that in a fog every vessel shall ‘go at a moderate speed.’ It is her duty to use the best and most expeditious

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means to attain this moderate speed. I am advised—and it is my own opinion—that the duty of the captain of the ‘Clan Malcolm’ in the circumstances was on entering the bank of fog to have stopped his engines, and if necessary to have gone astern in order to get his way off and reduce his speed from full to’ moderate Instead of doing so he proceeded for three or four minutes through the fog at a speed which was falling from full to slow. The ‘West Camak’ was sighted and heard, but although this vessel was apparently standing by or steaming slowly the ‘Clan Malcolm ‘did not think it proper to stop, but went on until the ‘Rowan’ was seen lying athwart her course. The speed of the ‘Clan Malcolm’ when she struck the ‘Rowan’ is proved to have been 8 knots or thereby. I am satisfied that the last order of ‘half-speed ahead’ did not effect any appreciable acceleration of speed before the collision. It follows that when the ‘Rowan’ was sighted the ‘Clan Malcolm's’ speed was 8 knots, which I hold in the circumstances to have been a dangerous rate of speed. It was at all events a rate of speed which was not a ‘moderate’ rate within the meaning of article 16 of the Regulations—see The ‘James Joicey,’ 1908 S.C. 295, per Lord Salvesen, Ordinary, at p. 301, 45 S. L.R. 216; also The ‘City of Brooklyn,’ The ‘Pennsylvania,’ The ‘Campania’ and The ‘Counsellor,’ supra.

I am therefore of opinion that the speed of the ‘Clan Malcolm’ in the fog was too high, and that the second collision was in the main due to this cause.

(2) Improper Manœuvring.—If the ‘Rowan’ was only a ship's length from the ‘Clan Malcolm’ when first seen by the latter vessel, then it is doubtful if a collision could have been avoided whatever manœuvre had been adopted by the ‘Clan Malcolm.’ I think, however, that the ‘Rowan’ had been sighted by the ‘Clan Malcolm’ at a greater than a ship's length. I reach this conclusion on the evidence of Captain Curtis. He there says in effect that he re-sighted the ‘Rowan’ at a distance three or four of the ‘West Carnak's’ lengths, and that the ‘Clan Malcolm’ was then passing the ‘West Camak.’ The ‘Clan Malcolm’ ought then also to have seen the ‘Rowan’ and doubtless did so. She had thus a distance of 1200 to 1600 feet available for manœuvring, and if the order which was given ‘full speed astern’ had not been countermanded but had been adhered to, I think it likely that the collision would have been avoided. The ‘full speed astern’ order was unfortunately countermanded and the order ‘half-speed ahead’ given, the helm having previously been put hard-a-port. It seems to me hopeless to have expected that by this combination of orders the collision could have been averted or any good effect secured.

I therefore reach the conclusion that on this ground also the ‘Clan Malcolm’ was in fault.

“( b) Was the ‘Rowan’ in Fault?

On this topic an interesting and difficult point was taken by the ‘Clan Malcolm's’ counsel. He contended that if the ‘Rowan’ was in fault in connection with the first collision, she was necessarily guilty of contributory negligence in reference to the second collision. I was referred to the following authorities:—Marsden on Collisions at Sea, p. 16; The ‘Douglas,’ 7 PD 151; Kidston, 5 R. 936, 15 S.L.R. 631; Seccombe, 1840, 2 Moo. & R. 290; The ‘Romney Marsh,’ L.R., 5 Ex. 204 and 7 Ex. 247; The ‘Kjoben-havn,’ 2 Asp. M.C. 213. It is, however, unnecessary to examine and consider these authorities, as the law of contributory negligence has been definitely declared in the recent House of Lords’ case of The ‘Volute,’ [1922] 1 A.C. 129. In that case the Lord Chancellor (Birkenhead) delivered a judgment which was described by Viscount Finlay as a ‘great and permanent contribution to our law on the subject of contributory negligence and to the science of jurisprudence.’

The leading propositions affirmed by the Lord Chancellor seem to me to be these—(1) Contributory negligence may be affirmed although the two acts of negligence are not synchronous but are in sequence. (2) It is a jury question whether or not there has been contributory negligence, the test being whether the two acts of negligence form part of one transaction—the second act closely following on and being involved with the first—or whether there is such separation of time, place, or circumstance between the two acts as to make it right to treat the second as the sole cause of the accident.

The impression I have formed on this point is adverse to the contention of the ‘Clan Malcolm's’ counsel. What the ‘Clan Malcolm’ complains of is that the ‘Rowan’ was unable to manœuvre. The ‘Rowan’ might have been put into that condition by stress of weather, but I do not think that the ‘Clan Malcolm’ could then have successfully pleaded damnum fatale. There was, it seems to me, such separation in time and circumstance between the two collisions as to make the earlier negligence of the ‘Rowan’ have no causal connection with the second collision.

But I consider myself absolved from reaching a definite conclusion as to the foresaid point, because I find evidence of fault on the part of the ‘Rowan’ which synchronised with the negligence of the ‘Clan Malcolm’ and contributed causally to the collision.

The specific charges against the ‘Rowan’ are set forth in the record S.S. ‘Clan Malcolm’ v. S.S. ‘Rowan,’ and are four in number. Charge ( d) was not insisted in as the evidence shows that a wireless message of distress was sent out timeously by the ‘Rowan.’ Charge ( a) is, in my opinion, disproved as the evidence shows that the ‘Rowan’ whistled, by way of fog signal, for some time between the two collisions. There remain charges ( b) and ( c).

Charge ( b) alleges that the ‘Rowan’ did not exhibit the appropriate signals for a vessel not under command. These signals are prescribed by articles 4 ( a) and 15 ( e) of the Regulations. 4 ( a) prescribes that two red lights shall be shown. These lights were not displayed by the ‘Rowan,’ but it was maintained on behalf of that vessel

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that this breach of the Regulations had no effect upon the happening of the collision, as a white light has at night a greater visibility than a red light. The statutory presumption of fault arising from breach of the Regulations which was established under section 419 (4) of the Merchant Shipping Act 1894 no longer applies, as it had been abolished by section 4 (1) of the Maritime Convention Act 1911. The Court must now determine on the evidence whether any failure to obey the Regulations contributed to the collision ( The ‘Enterprise,’ [1912] P 207, 211; the ‘ Gulf of Suez,’ [1921] P. 318, at pp. 327 et seq). My view is that as the red lights could not have been seen sooner than the white lights of the ‘Rowan’ were sighted by the ‘Clan Malcolm,’ the failure to show red lights did not contribute to the collision.

But article 15 ( e) prescribes that a vessel not under command shall also signal her condition by sounding on her whistle, at intervals of not more than two minutes, one prolonged blast followed by two short blasts. This signal was not made by the ‘Rowan.’ She certainly whistled after the first collision, but not in this way, and she discontinued whistling altogether for some time prior to the second collision. The ‘Rowan's’ counsel contended that if the said signal had been made, it would have been ineffective, as the blasts which were sounded by the ‘Rowan’ were not heard on board the ‘Clan Malcolm.’ I am unable to accept this suggestion. On the contrary, I am advised and hold the opinion that if this peculiar signal had been sounded continuously, it would in all likelihood have been heard on the ‘Clan Malcolm’ at such time as would have enabled that vessel to take steps to avoid a collision. It has therefore, in my opinion, been proved that the ‘Rowan's’ failure to observe the terms of article 15 ( e) contributed to the collision.

Charge ( c) alleges that the ‘Rowan’ failed to show flares or to send up rockets or shells, or to take any steps to warn vessels in the vicinity that she was lying helpless, and requiring assistance, in the track of incoming and outgoing vessels.

Article 31 of the regulations provides that when a vessel is in distress and requires assistance she shall either together or separately make certain prescribed signals. The ‘Clan Malcolm's’ counsel further contended (I think rightly) that apart from the Regulations it was the plain duty of the ‘Rowan,’ lying as she was in an unmanageable condition, and at a frequented part of the ocean, to have taken special steps to indicate to other vessels her situation and state. It is admitted that no such steps were taken by the ‘Rowan.’ The only excuse offered by the ‘Rowan's’ counsel for non-observance of this regulation was that the ‘Rowan’ was not in distress. This contention, in my opinion, is quite untenable. A vessel which has lost her propeller and rudder, and which has a hole in her side, albeit above the water line, is, it seems to me, a vessel in distress and one which requires assistance from other vessels. The ‘Rowan,’ as the result of the first collision, could never have reached port without the aid of salvers. I am of opinion that the failure of the ‘Rowan’ to take any steps to notify her condition to approaching vessels contributed the collision. I must assume that had she made the signals of distress prescribed in article 31, or some of them, they would have been noticed by the ‘Clan Malcolm’ in time to enable her to take steps to avoid a collision.

Although I thus hold that both the ‘Rowan’ and the ‘Clan Malcolm’ were in fault in reference to the second collision, I regard the negligence of the ‘Clan Malcolm’ as so much more serious than that of the ‘Rowan’ that I propose to apportion the liability in terms of section 1 of the Maritime Convention Act 1911, and I decide that the ‘Clan Malcolm’ shall be responsible for two-thirds of the joint loss and the ‘Rowan’ for one'third thereof.

I now reach the most difficult question in the case, to wit, whether or not the ‘Rowan’ was salveable after she had been injured by the ‘West Camak.’ In a question of this sort, where a certain conclusion cannot be reached, the onus probandi is of great importance. Counsel for the ‘Rowan’ maintained that the burden of proof was on the ‘Clan Malcolm,’ on the authority of such cases as Davis, 1830, 6 Bing. 716; Stiven, 1 R. 412, 11 S.L.R. 223; Dominion Hank, 16 R. 1081, 26 S.L.R. 753; Alexander Turnbull and Company, Limited, 7 F. 791, 42 S.L.R. 743. Counsel for the ‘Clan Malcolm,’ on the other hand, contended that the burden of proof was on the ‘Rowan’ under the well-settled rule of procedure that a pursuer in an action of reparation must prove damages, that is, in the present case the owner of the ‘Rowan’ must prove the condition in which the vessel was at the time of the second collision. The view I have formed is that the onus probandi is initially on the ‘Rowan,’ but that on a prima facie case being established that the ‘Rowan’ was salveable before she was struck by the ‘Clan Miilcolm,’ the onus then shifts and is on the ‘Clan Malcolm’ to make out that the ‘Rowan’ was then sinking,

I am satisfied that the ‘Rowan’ has established the foresaid prima facie case, and that the ‘Clan Malcolm’ has failed to prove that the ‘Rowan’ was mortally injured by the first collision.

[ His Lordship then dealt with the evidence on this question and continued.]—

On the contrary, I see no reason why the ‘Rowan’ could not have been towed to a place of safety. There were vessels standing by which could have rendered effective salvage service, and the weather conditions were very favourable. I am advised that the ‘Rowan,’ if salveable, could have been towed in four hours, including time for salving vessels to make fast, a distance of 8 1 2 miles to Loch Ryan where she could have been safely beached.

The only other point which I think it right to mention has reference to the unfortunate loss of life. Even if the ‘Rowan’ was a sinking ship before the second collision I am quite satisfied that but for the second collision there would have been no loss of

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life. The ‘Rowan,’ in my opinion, would have floated long enough to enable every living soul to have been rescued by her own boats and those of the ‘West Camak.’”

The Laird Line, Limited, and the Clan Line Steamers, Limited, reclaimed.

Argued for the reclaimers the Laird Line, Limited—1. In the collision between the “Rowan” and the “West Camak” ( a) the master of the “Rowan” was not in fault. The “Rowan” was not in fog, and there was no duty to go slow merely because land fog signals were heard, or because the conditions indicated the proximity of fog. Art. 16 of the Regulations for Preventing Collisions at Sea, 1910, did not apply where the ship was not in fog. The manoeuvres of the “Rowan” were correct in the circumstances. There was no duty to stop and reverse. To have done so would not have prevented the collision— The “Zadok,” 1884, 9 P.D. 114, per Sir J. Hannen at p. 119. ( b) The master of the “West Camak” was in fault. By ordering the helm to be starboarded he had committed a negligent act, which although the order was promptly countermanded put upon his owners the onus of proving that the act did not cause the collision. This onus they had failed to discharge— The “Vindomora,” [1891] AC 1; Cayzer v. Carron Company, 1884, 9 App. Cas. 873; The “Fenham,” 1870, L.R., 3 P.C. 212; Marsden's Collisions at Sea, pp. 41, 56, and 57; Bevan on Negligence, p. 1087. That the master was entitled to time to think— “Kwang Tung,” [1897] AC 391—did not excuse delay caused by an improper order. Further, the “West Camak” was in thick fog, and article 16 of the Regulations of 1910 applied. The speed of the “West Camak” was in the circumstances a breach of the rule, which created a presumption of fault on the part of her master which had not been redargued—Marsden's Collisions at Sea, p. 355; The “Pennsylvania,” 1874, 31 L.T. 103; The “City of Brooklyn,” 1875, 1 P.D. 276; The “Oceanic,” 1903, 9 Asp. M. 378; The “Warsaw” v. “Linn o’ Dee,” 1906, 8 F. 1013, per. Lord Ardwall at p. 1017, 43 S.L.R. 732; The “Zadok” ( cit.); The “Counsellor” [1913] P 70. The fact that the “West Camak” was in fog excluded the application of the crossing rules—articles 18 and 19 of the Regulations of 1910; The “Crown of Cordova,” 1918 S.C.303, 55 S.L.R. 312. 2. ( a) The collision between the “Rowan” and the “Clan Malcolm” was due solely to the fault of the master of the “Clan Malcolm.” He was proceeding in a fog at a speed at which he could not avoid the “Rowan” after he saw her. Such a speed was excessive and in breach of art. 16 of the Regulations of 1910. When the “Clan Malcolm” entered the fog her speed should have been immediately reduced to a much greater extent than it was— The “Crown of Cordova” ( cit.); The “Campania,” [1901] P 289. At the speed the ship was going the order should have been to stop and reverse, ( b) On the other hand no fault had been proved against the master of the “Rowan.” His failure to show red lights in addition to the white light did not contribute towards the collision, and the failure to show distress signals was justifiable in the circumstances. It had not been proved that the whistle was not sounded for more than two minutes before the collision, but in any event if it had been sounded the evidence showed that it would not have been heard on the “Clan Malcolm.” ( c) The “Rowan” was sunk by the collision with the “Clan Malcolm.” There was no onus on the owners of the “Rowan” to prove that before the second collision she was not sinking and unsalveable, but if there was such an onus on the owners of the “Clan Malcolm” it had been sufficiently discharged, and the onus was on the owners of the “Clan Malcolm” of proving that the “Rowan” was not sunk by the second collision—Dickson on Evidence, vol. i, secs. 25, 26, and 27; Taylor on Evidence, vol. i, p. 273; Bevan on Negligence, pp. 83 and 800; Davis v. Garrett, 1830, 6 Bing. 716; Lilley v. Doubleday, 1881, 7 Q.B.D. 510; Morrison & Company v. Shaw, Savill and Albion Company, Limited, [1916] 2 K.B. 783; Turnbull & Company v. Cruikshank & Fairweather, 1905, 7 F. 791, 42 S.L.R. 743.

Argued for the respondents the United States Shipping Board—1. These respondents were rightly absolved by the Lord Ordinary. The collision between the “Rowan” and the “West Camak” was solely due to the fault of those in charge of the “Rowan.” The evidence showed that she was actually in fog before the collision took place, but her speed was not reduced and fog signals were not being sounded in compliance with articles 15 and 16 of the Regulations of 1910. Even if she was only in the neighbourhood of fog the signals should have been sounded and speed reduced— The “N. Strong,” [1892] P 105. Further, her manoeuvres were wrong and she was not keeping a proper look-out. When the “West Camak” was observed the engines of the “Rowan” should have been reversed, and if a proper look-out had been kept the fog signals of the “West Camak” would have been heard— The “Curran,” [1910] P 184. If the “Rowan” was not in fog when the “West Camak” was observed, the crossing rules applied and her manœuvres were wrong under articles 18 and 19 of the Regulations of 1910. 2. There was no fault proved against the “West Camak.” Her speed was as slow as could be reasonably required, and if a wrong order was given that was due to the situation created by the faulty navigation of the “Rowan,” and in any event had been countermanded at once. The master was entitled to time to think— The “Kwang Tung,” [1897] AC 391—and thecorrect order had been given with reasonable promptness The “Emmy Haase,” 1884, 9 PD 81; Marsden's Collisions at Sea, pp. 12 and 13; The “Two Sisters,” 1 Pritch. Ad. Dig. (ed. 1887) 248; “Hogstad” v. “Coombe Dingle,” 1921, 8 LI. L. Rep. 153.

Argued for reclaimers the Clan Line Steamers, Limited—1. The onus of proving the condition of the “Rowan” resulting from the first collision was on the owners of the “Rowan.” They had failed to prove that the ship was sunk by the second collision. The “Rowan” must therefore be regarded

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as having been in a sinking and unsalveable condition as the result of the first collision. There was therefore no loss for which these reclaimers could be held liable—Glegg, Reparation, p. 108; Kerry v. England, [1898] AC 742; The “Swanland,” [1855] 2 Sp. 109; Marsden's Collisions at Sea, p. 50; Dickson on Evidence, sections 31, 280. In The “Egyptian,” 1864, 10 L.T. 910, there was no evidence of previous injury. The cases referred to by the owners of the “Rowan” were contract cases and did not apply to the question of onus here. What was done by those in charge of the “Rowan” after the first collision proved that she was sinking— Bathgate v. Macadam, 1840, 2 D. 811. 2. ( a) The master of the “Rowan” was alone responsible for the second collision. The real cause was his failure to sound his whistle for more than two minutes before the collision took place. If he had sounded the whistle the collision might have been avoided, for it was to be assumed that the “Clan Malcolm” would then have stopped—“ Rosalia,” [1912] P 109; The “Karamea,” [1921] P. 76, affd. [1922] 1 A.C. 68. In any case his failure was a breach of the Regulations of 1910, article 15 ( c), which put upon the owners of the “Rowan” the onus of proving that it was not the cause of the collision— The “Karamea” ( cit.); The “Voorwarls” and The “Khedive,” 1880, 5 A.C. 876; The “Fenham” ( cit.)—and they had failed to do so. And if the master of the “Clan Malcolm” was at fault the failure to sound the whistle of the “Rowan” was contributary negligence— The “Tempus,” [1913] P 166. ( b) No fault on the part of the master of the “Clan Malcolm” had been proved. On entering the fog he had taken the proper steps to go slow in accordance with article 16 of the Regulations of 1910. In the absence of fog signals from the “Rowan” there was no duty to stop and reverse. Nor was there any fault in entering a fog at full speed when owing to the darkness it could not be seen. The “N. Strong” ( cit.) and The “Crown of Cordova” ( cit.) were cases of entering a fog in daylight and did not apply. If the speed of the “Clan Malcolm” was not excessive there was no fault in the manœuvre when the “Rowan” was observed. The ships were so close when the “Rowan” was observed that the “full speed astern” if adhered to could not have prevented the collisions. 3. The circumstances of the two collisions were so connected that the second collision was attributable to the fault of the master of the “Rowan” which led to the first collision—Marsden's Collisions at Sea, p. 16, and cases there cited; The “Volute,” [1922] 1 A.C. 129, per Viscount Birkenhead, L.C., at pp. 136, 137, and 144; Kidston v. M'Arthur and Clyde Navigation Trustees, 1878, 5 R. 936, per Lord Ormidale 15 S.L.R. 681. Even though the master of the “Clan Malcolm” was to blame, this fault was to be regarded as a contributing cause. 4. In any event the Lord Ordinary had not apportioned the loss properly. The fault of the “Clan Malcolm” was small compared with that of the “Rowan” and the Court should reapportion the loss— The “Karamea” ( cit.)

At advising—